Protecting the preliminary hearing right is essential, says Fairfax criminal lawyer

Protecting the preliminary hearing (PH) right is critical, as underlined in my last blog entry. As a Fairfax criminal lawyer, I know that prosecutors sometimes will try to avoid a PH by direct indicting, by seeking a nolle prosequi/ non-prejudicial case dismissal (which cannot be granted without good cause shown), or by seeking a PH waiver.

Fairfax criminal attorney on why a Virginia prosecutor would want to avoid a preliminary hearing

The reasons a Virginia prosecutor might want to avoid a preliminary hearing when the defendant wants to be protecting that right, include preventing the risks of prosecution witnesses providing the defense with cross examination and impeachment ammunition for subsequent criminal case proceedings, reducing speedy trial risks, revealing weaknesses in the prosecutor’s case, concerns about being prepared for the PH or for the current indictment-trial scheduling track, not having all necessary witnesses and evidence available, not revealing non-discoverable sensitive information more often than needed, and saving time. For drug prosecutions, the Virginia Department of Forensic Science is woefully backlogged with testing alleged illegally possessed drugs, often leading prosecutors — when the alleged drugs have not yet been chemist-tested — to seek a preliminary hearing hearing date postponement, or to move to enter the case nolle prosequi. 

Protecting a preliminary hearing right so long as the felony prosecution remains active in Virginia District Court

“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…” Va. Code § 19.2-218. The Virginia Supreme Court last week confirmed that such PH right does not extend to additional indicted charges for which the defendant was not then under arrest. Stokes v. Virginia, Record No. 180510 (May 30, 2019) (unpublised order). Protecting a PH right, therefore, does not extend beyond the statutory language.

A split Virginia Court of Appeals in 2008 ruled that it is possible for a prosecutor to obtain a nolle prosequi over the defendant’s objection at the PH and still to obtain a subsequent indictment. Wright v. Virginia, 52 Va.App. 690 (2008).

Virginia preliminary hearings are a critical battle stage that needs protecting and that calls for full combat readiness.

Fairfax criminal lawyer Jonathan L. Katz battles for your best defense against felony, misdemeanor, DUI, drug, and sex prosecutions. To discuss your case with Jon Katz, please call his staff at 703-383-1100 to schedule a confidential consultation.