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A Felony Preliminary Hearing in Fairfax (Virginia): Does it Matter?

Posted by George L. Freeman | Feb 26, 2020

When a person is prosecuted for a felony offense, the prosecution typically commences with a police officer seeking a felony arrest warrant.  That document is what allows the officer to arrest you and bring you before either a Juvenile and Domestic Relations District Court or a General District Court.  District courts adjudicate misdemeanors, but they do not have jurisdiction to adjudicate felonies.  Therefore, on a felony warrant in a district court a person charged with a crime would have a preliminary hearing, not a trial.  

What happens at a preliminary hearing?

  • The charge could be reduced to a misdemeanor and adjudicated in district court either by way of a plea or by trial.
  • A plea deal could be struck between the defendant and the Commonwealth.  If this happens, the defendant would likely waive, or give up, the preliminary hearing and the case would be certified and sent to Circuit Court for adjudication.  A waiver of preliminary hearing usually occurs when other charges are being dropped or not sought, or there is some type of agreement or recommendation on sentence.
  • You could have a preliminary hearing, meaning you could have an evidentiary hearing.  At the hearing you are not required to present any evidence; it is typically a horrible idea for a defendant to present evidence at a preliminary hearing.  There is no need to telegraph your defense strategy to the Commonwealth. 

If your charge at preliminary hearing takes the latter route from the list above, the Commonwealth is required to call witnesses only to show probable causeWhat must be shown? First, the Commonwealth must show that there is reason to believe that a crime was committed and, second, that the person charged is the one who committed the crime.  If the court finds probable cause, the case is certified to the Circuit Court's next meeting of the Grand Jury.  This typically leads to an Indictment being returned a True Bill.  At this point the defendant is truly charged with the felony at issue and a trial date would be set.

What happens if the district court dismisses the preliminary hearing for lack of probable cause?  The Commonwealth's Attorney may still send the case to the Grand Jury for indictment.  This seems peculiar, but it is the law in Virginia.  The historical purpose of a preliminary hearing was to provide an accused with some review of his case while he sat in jail awaiting the next meeting of the Grand Jury.  Today the rationale behind the preliminary hearing is somewhat evolved. 

Why, if the Commonwealth can indict regardless of the outcome in district court at a preliminary hearing, would a defendant want to sit through one?

  • To hear witnesses testify and to be able to cross-examine those witnesses - this can give you an idea of what the witnesses called by the Commonwealth will say at trial and what they won't say.
  • To actually learn about the case.  While preliminary hearings are not intended as discovery tools, they functionally operate that way.  Often times a wise move for a defendant is to listen at the hearing, and not object - save the objections for trial.  Learn as much about the Commonwealth's case as you can before trial.
  • To see if the Commonwealth can actually produce her witnesses; typically witnesses at a preliminary hearing are also going to be needed at trial.

If a district court judge finds probable cause at a preliminary hearing and certifies a charge to the Grand Jury, does that mean the Commonwealth's case is strong?  No, it does not.  The Commonwealth's case may be overwhelming in evidence tending to support guilt, but her evidence may also be weak.  A prelimiary hearing can sometimes be a good tool to assess the strength of the Commonwealth's case.  A person charged with a felony should not believe they are doomed because a preliminary hearing is certified; they likewise should not think they are in the clear because a preliminary hearing is dismissed.  Every case is different and a thorough assessment must be done for each case.  Remember - the evidentiary quantum of proof at a preliminary hearing is probable cause, a low standard; the standard for conviction at trial is proof beyond a reasonable doubt, the highest standard known in the law. 

Preliminary hearings are an interesting creature of Virginia's statutory criminal law.  Most states have varying versions of them as well.  Although dismissal of a charge at preliminary hearing is not conclusive as to the ultimate prosecution of a case, the hearing itself matters a lot.  Be cautious to waive your statutory right to a preliminary hearing unless the Commonwealth is giving you something in return.  Preliminary hearings matter and once they are gone you can never get them back!  

About the Author

George L. Freeman

I was born and raised in Fairfax County.  I graduated from Fairfax High School and then from Virginia Tech.  After spending a few years as a bail bondsman and court clerk, I attended the University of Baltimore, School of Law.  I graduated in 2010 with a Juris Doctor, manga cum laude. I spent 9 ...

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