Virginia criminal charging documents- Must they name a victim?
Virginia criminal charging documents- Fairfax criminal lawyer urges that they name the alleged crime victim
Virginia criminal charging documents all too often do not list the name of the alleged crime victim for such proceedings as theft and assault prosecutions. As a Fairfax criminal lawyer, I know that dismissal of a prosecution is generally not available for the mere absence of an alleged victim’s name in a Virginia indictment, warrant of arrest or summons (collectively “charging document”). My view is that for alleged offenses that require a victim in order to be crime (drug selling, for instance, does not involve a victim, under the law), Due Process (U.S. Const. Amends. V & XIV) dictates that the charging document must name the victim (or else recognizable initials or sufficient description of a minor crime victim), and that a material variance from that victim’s name in the prosecution’s evidence should bar a conviction. My painstaking research of the applicable law finds no published appellate case requiring a charging document to name the alleged crime victim.
Does the law require naming the crime victim in Virginia criminal charging documents?
The closest I have come to published caselaw supporting the need to name the victim in a Virginia criminal charging document is Brown v. Commonwealth of Virginia, 138 Va. 807, 815. Brown affirms a murder conviction where the indictment alleged the murder of Wester Stith, but the only evidence was about the killing of a person with a different first name of Wesley Stith. Brown rejects the argument about this variance between the victim’s name in the indictment and the proof at trial, saying: “The evidence shows conclusively there was never any question as to the identity of the person killed. The entire case was proceeded with upon the idea that Wester Stith and Wesley Stith were one and the same person. In fact, the accused testified as to the identity of the person he killed.” Apparently not aware of any Virginia appellate caselaw on the matter, the Brown court looks to neighboring West Virginia to underline that no fatal variance between the indictment and trial proof exists when the difference in the first name of the alleged victim was not material: “In the case of State v. Reece, 27 W. Va. 375, 380 , an indictment charged the accused with the larceny of goods, the property of Robert Buster, while the proof was that the owner of the goods was James Robinson Buster, who was sometimes called Rob, Robinson and Bob Buster. It was contended that a new trial should be granted for variance between the allegation and the proof, but the court held this was not a material variance.” Brown, 138 Va. at 815.
In another commonwealth Supreme Court case with an insufficient variance between the victim’s name as stated in the Virginia criminal charging document versus in the trial evidence, the court stated: “Bassett contends that the indictment was fatally defective because it described the deceased as Albert Lee Burwell instead of Albert Lee Burwell, Jr. Misnomer of a victim is not fatal when the victim’s identity is made clear at trial.” Brown v. Commonwealth, 138 Va. 807, 122 S.E. 421 (1924).” Bassett v. Commonwealth of Virginia, 222 Va. 844, 855 (1981).
If an immaterial variance between the victim named in the charging document does not get a Virginia criminal defendant relief, does the absence of a victim’s name in the charging document require relief for the criminal defendant?
The converse to the foregoing discussions in Brown and Bassett arguably supports that the failure to name any victim in a Virginia criminal charging document is fatal to the prosecution. Granted, Brown does not address that point — having determined no material variance between the indictment and the trial proof — but in Brown’s not rejecting that point, the argument is still left available to make. Without more than reference to a statute that does not specifically reference a victim’s name, in a 2017 unpublished (and therefore not binding) opinion, the Virginia Supreme Court stated that the “Commonwealth is not required to name the victims of a crime in an indictment. See Code § 19.2–220.” Meyers v. Virginia, Record No. 150962, 2017 WL 123922 (Va. 2017) (unpublished).
If the charging document lists a party that cannot be a crime victim, a conviction is not possible
We do know that a conviction cannot be obtained where the Virginia criminal charging document lists a party that cannot be a crime victim. That is confirmed by the Virginia Supreme Court’s reversal of a conviction where the indictment alleged that the defendant had conspired to rob a United States mail truck. Falden v. Commonwealth of Virginia, 167 Va. 542, 547 (1937).
Due process and double jeopardy principles support requiring naming the alleged crime victim in the court record
Even if Virginia Code § 19.2–220 does not by itself mandate naming the crime victim in a Virginia criminal charging document, Constitutional Due Process (U.S. Const. Amends. V & IV) and Double Jeopardy protection (U.S. Const. Amend. VI) support requiring the court record — in advance of the commencement of trial — to name the crime victim. To do otherwise risks not putting the criminal defendant on sufficient notice of what s/he has to defend against. To not list the crime victim in the court record risks being reprosecuted for the same alleged crime.
It is essential for the court to grant a defense motions seeking to name the alleged crime victim
Based on the foregoing discussion about naming the victim in Virginia criminal charging documents, at the very least a Virginia trial court judge should grant a criminal defendant’s motion to name the crime victim, whether through the bill of particulars statute (Virginia Code § 19.2–230) or otherwise.
Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, misdemeanor and felony prosecutions. You are bound to feel more confident and knowledgeable about your defenses by the time you finish your initial confidential consultation with Jon Katz. Call 703-383-1100 for your free in-person meeting with Jon about your court-pending case.