Virginia magistrates will repeat criminal defendants’ words into the court record- Beware them says Fairfax criminal lawyer

Virginia magistrates (VM’s) must be dealt with cautiously by criminal defendants. As a Fairfax criminal lawyer, They are not your friends, as they have their own employment obligations. Deal with them prudently and respectfully, and they might give you good results. Deal with them disrespectfully, and be ready for potential fallout. Wag your tongue in front of them, and be ready for them to write or type your words onto the Checklist for Bail Determinations (Form DC-327)  that they use and that finds its way into the publicly-available court record for your Virginia felony, misdemeanor or DUI case. The VM — just like a judge — must be approached like fire, which can keep you warm and heat your food, but which can also burn you if not careful.

Who are Virginia magistrates? Must they have attended law school?

Virginia magistrates are an overly powerful group of commonwealth court system employees, who determine bail / bond / pretrial release terms and conditions of criminal defendants (until a judge-held bail hearing is held sometimes more then two business days later), issue search warrants and arrest warrants, and issue protective orders. They are not required to have attended law school nor the equivalent. My view is that judges — not magistrates, who do not have to be lawyers — should be the only ones ruling on search warrant applications. My view also is that so long as magistrates are usually the first ones deciding on granting and denying pretrial release and pretrial release conditions, Virginia criminal defendants should be entitled to a bond review (if they so request) the business day after their arrest. Unfortunately, Virginia law does not guarantee a bond hearing in Virginia General District Court, Juvenile and Domestic Relations District Court, nor Circuit Court as soon as that, and Virginia judges use their discretion whether to consider pretrial release at the first appearance / arraignment of a detained criminal defendant.

Do VM’s advise criminal defendants of their Miranda right to remain silent, and also affirmatively discourage them from discussing their cases before the magistrate?

Nowhere in the detailed Virginia Magistrates Manual (Manual) do I see any mention of the need for the VM to advise a criminal defendant of his or her right to remain silent under the Constitution’s Fifth Amendment and under Miranda v. Arizona, 384 U.S. 436 (1966). Nor do I see any mention about the need to advise the accused of a right to consult with a lawyer before speaking to the magistrate (let alone affording the accused such a right if s/he proactively requests it). If VM’s are so instructed, then hopefully that would be added to the Virginia Magistrates Manual.

Instead, the main essence I see in the Virginia Magistrates Manual about conducting such a bond proceeding includes (with my commentary in [brackets]: “The magistrate must hold the bail hearing in the presence of the accused to afford him or her due process under the law by providing an opportunity to ask questions and, of course, to answer those asked by the magistrate. [Notice no reference to limiting the scope or nature of the magistrate’s questions to the accused, nor about the magistrate’s needing to advise or warn the accused of his or her right to remain silent.]… When the magistrate conducts the bail hearing under oath, the defendant is subject to a perjury prosecution for any false statements knowingly made in the hearing. [Allowing a perjury prosecution is unjust, to say the least, if the accused is not first advised of his or her right to remain silent and to have a lawyer present, is not given time to find and consult with and await a lawyer, and is not provided a court-paid lawyer if indigent or unable to have funds available so quickly to pay a lawyer.]… On occasion, the defendant’s attorney or the Commonwealth’s attorney may request to be present during the bail hearing. If the attorney is present when the magistrate is ready to conduct the hearing, the magistrate must admit the attorney to the hearing.” Virginia Magistrate Manual, Bail Procedures, p. 4-2 (revised July 2022).

About the latter sentence, this part of the Virginia Magistrates Manual provides a Virginia criminal defense lawyer the grounds to be permitted to be present at the hearing before the magistrate, but does not say anything about permitting the lawyer to speak at the proceeding, nor to be next to his or her client (nor otherwise to communicate with the criminal defendant) to advise the client and to answer the accused’s questions. It does not seem just nor fair to permit the presence of a prosecutor / commonwealth’s attorney lawyer before the magistrate without a criminal defense lawyer present if requested by the accused.

Should I limit what I say to Virginia magistrates?

Virginia pretrial release consideration requires determining whether the criminal defendant is a risk of flight / not appearing timely to all court dates, and whether the accused is a risk of harm to himself or others. I warn my clients about saying more to Virginia magistrates beyond their proverbial name, rank and serial number, plus any biographical information that will help show strong ties to the community and low risk of flight (which may also support not being a risk of harm to oneself nor others), so long as that information is not related to the alleged crime, does not reveal any criminal activity, and does not address one’s immigration status (certainly if one is not lawfully in the United States, but also any criminal defendant other than a United States citizen may be reported to the immigration authorities, with possibly seriously adverse resultant consequences). If the criminal defendant wags his or her tongue related to the criminal accusations, the magistrate may recount those words on the Checklist for Bail Determinations, which will be available to prosecutors and all members of the public who go to the courthouse to look at your court file. Your appearance before the magistrate will not likely be recorded to show the extent to which the magistrate mis-stated or misunderstood what you said to him or her, nor the extent to which the magistrate has taken your words prejudicially out of context. Beware Virginia judges using those words against you for pretrial release hearings before them and for any sentencing, and prosecutors using your words to the magistrate against you in pretrial release proceedings and with negotiations.

Should I turn myself in when I learn I have an open Virginia arrest warrant against me? Should I consult with and bring a lawyer with me to turn myself in?

You help show Virginia magistrates you are not a flight risk by turning yourself in on an open Virginia arrest warrant rather than letting the arrest warrant catch up with you, for instance by police or other law enforcement authorities actively looking for you to serve the arrest warrant, or during a police stop of your vehicle for an alleged traffic law violation. Ideally, you will immediately consult with a lawyer about how to handle the turn in, including what to say and not to say to the magistrate, and about asserting your right to remain silent with the law enforcement officer who brings you before the magistrate. Ideally, you will have your lawyer (or a colleague arranged by your lawyer) lined up to appear at the next possible court bond hearing date in the event that the magistrate denies you pretrial release. I commonly draft a letter for my client to present to the magistrate that argues for why my client is not a flight risk nor risk of harm, and should be released. I can also arrange with my client to accompany him or her for turning himself into the magistrate. I can also arrange to speak directly to the magistrate.

Should I pay attention to my physical appearance before turning myself in on an open arrest warrant?

Pay attention to your physical appearance for your turn-in to Virginia magistrates on an open arrest warrant. That is what will be photographed for your booking photo / mugshot, which in some circumstances will find its way onto social media and into the press / print news. A criminal defendant who is arrested on the spot does not have the ability to look after their appearance in such a fashion, but you do if you are turning yourself in on an open arrest warrant.

How can my criminal lawyer successfully persuade the magistrate when my attorney wants to overhaul the Virginia magistrate system?

A skilled criminal defense lawyer can persuade Virginia magistrateseven if the lawyer does not agree with the VM system and, like I, wants it overhauled. The same goes for a qualified Virginia criminal lawyer being able to persuade a judge whom the attorney thinks should be off the bench.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, misdemeanor and felony prosecutions. Call 703-383-1100 for your free initial confidential in-person consultation with Jon Katz about your court-pending case.