Preliminary hearings are an important part of Virginia criminal defense for felony prosecutions. As a Fairfax criminal lawyer, I know that such hearings are important for obtaining discovery before the hearing date, for working to negotiate a mutually agreed settlement, to learn more about the strengths and weaknesses of the prosecution and defense cases, to learn more essential information about the case, and to have the first opportunity to cross examine prosecution witnesses and to eyeball their court performance and the extent to which they will or will not testify credibly, reliably, and likeability at trial.
Virginia preliminary hearings are not an absolute right
Virginia’s preliminary hearing statute is very brief and concise: “No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing by the accused.” Va. Code § 19.2-218.
No preliminary hearing is required when a felony prosecution is not pending in a Virginia District Court
However, Virginia caselaw makes clear that a preliminary hearing is only a right during the pendency of the felony case in the Virginia District Court. Last week, the Virginia Court of Appeals summarized this state of the caselaw. Bland v. Virginia, Record No. 0937-16-1 (Va. App. Nov. 14, 2017) (unpublished). The upside of that state of affairs is that a Virginia felony defendant will not need constantly to check whether his or her preliminary hearing date has been superseded by an indictment. The downside is that if the prosecution obtains a nolle prosequi/ non-prejudicial dismissal of the preliminary hearing, the defendant loses that right to a preliminary hearing if the prosecutor then proceeds to direct indict the defendant.
Whether the prosecutor wins or loses a preliminary hearing, the case can still get indicted
If a Virginia felony defendant wins a preliminary hearing, that does not preclude the prosecution from subsequently obtaining an indictment from the grand jury. What, then, is the benefit of a preliminary hearing? Beyond the benefits listed earlier in this article, a defense victory at the preliminary hearing gives the prosecutor a chance to think twice about whether the case is worth prosecuting further, and also provides the prosecutor cover for not proceeding further with a criminal case that the prosecutor does not think should be prosecuted any further.
Fairfax criminal lawyer Jonathan L. Katz fully defends your rights at every turn. For a confidential appointment with Jon, please call his staff at 703-383-1100.