Criminal Case Terms and Definitions

Appeals


An appeal is a request for another court to review a court's ruling in an earlier trial. In Virginia, an appeal of a criminal conviction from the General District Court or Juvenile Court to the Circuit Court is automatic if the appeal is properly filed in the Clerk's office where the case was tried within 10 days of the conviction. If not filed timely, the right to appeal is lost. In an appeal to Circuit Court there will be a new trial and the lower court conviction is automatically nullified upon filing the appeal. The clerk's office keeps forms for noting appeals.

An appeal from Circuit Court in a criminal case is not automatic and a guilty verdict is not changed unless the trial court decision is reversed on appeal. A criminal appeal, except in capital cases, will be to the Virginia Court of Appeals. In order to obtain an appeal the person convicted must convince an appellate judge that serious (reversible) error occurred at trial. If the Virginia Court of Appeals denies the appeal request, an appeal may be requested from the Virginia Supreme Court. Death penalty cases receive an automatic appeal and review by the Virginia Supreme Court. The procedures required to appeal from Circuit Court are complicated and an attorney's assistance on the appeal is extremely valuable. Failure to follow all the requirements may result in denial of the appeall for technical reasons. Please consult an attorney or the Virginia Code and Rules of Court for the requirements for an appeal from the Circuit Court.

Capias


An arrest warrant issued by the court. Usually this will be for contempt, failure to appear in court, violation of probation or to arrest someone on an indictment.

Capital Murder


A murder committed with specified circumstances under which a death penalty may be imposed. Not all murder is capital murder. A conviction of capital murder does not automatically carry the death penalty. The judge or jury may also sentence the person convicted of capital murder to life in prison without parole. Examples of capital murder: Murder of a police officer in the performance of his or her duty and murders committed in connection with rape and robbery, among others. Murders that do not fit within the capital murder statute cannot be punished by death. Murders that are not eligible for the death penalty are first degree and second degree murder.

Commonwealth


The Commonwealth means the state or people of Virginia. In criminal cases (except for violations of local ordinances), the Commonwealth brings criminal charges.

Defendant


The person on trial for a criminal offense. Also, in civil cases, the person being sued.

Exclusionary Rule


This rule, put in place by the U.S. Supreme Court, requires that evidence unlawfully obtained by police through unconstitutional procedures may not be used by the Commonwealth, state or federal government during a criminal trial.

Felony


A crime that carries the possibility of being sentenced to incarceration for more than one year. Conviction of a felony results in loss of various rights, including the right to vote and possess a firearm. Felony charges must be tried in the Circuit Court. Examples of some felony charges: Grand Larceny, Burglary, Robbery and possession of drugs such as cocaine and heroin.

Grand Jury


A body of private citizens brought together by the court to determine probable cause for offenses and issue criminal indictments. A special grand jury or multijurisdictional grand jury may investigate criminal activities and subpoena witnesses before issuing indictments.

Indictment


The formal written charge issued by a grand jury. It is usually a felony, but a misdemeanor also may be charged by indictment.

Infraction


A lesser offense not serious enough to classify as a misdemeanor. Various traffic offenses are infractions. They do not carry the possibility of a jail sentence. Example: Speeding (except reckless driving due to speed).

Jeopardy


Jeopardy refers to the possibility of a criminal conviction. Double jeopardy, or being placed in jeopardy twice for the same offiense, is forbidden by the Fifth Amendment to the U.S. Constitution. Jeopardy attaches (or comes about) in a jury trial when the jury is sworn. It attaches in a bench (non-jury) trial when the first witness is sworn. It requires a proceeding in a court that has jurisdiction to try the offense. Cases dismissed after a preliminary hearing in Virginia may be brought back and tried because no jeopardy attaches to a felony charge at a preliminary hearing.

Miranda

- Also, Miranda Rights
This term refers to Miranda v. Arizona decided by the U.S. Supreme Court in 1966. The case provides that criminal suspects must be advised of their constitutional rights under certain circumstances or their statements to police may not be admitted into evidence against them. Police must advise suspects of their constitutional rights (Miranda Rights) only when they interrogate a suspect who is in custody. A violation of these rights means that any statements taken in violation of Miranda cannot be used against the suspect at trial. It does not prohibit the Commonwealth from prosecuting the case.

Misdemeanor


A crime that carries up to 12 months in jail and/or a fine. A misdemeanor is less serious than a felony and does not result in the loss of civil rights, such as the right to vote or possess a firearm. However, a misdemeanor conviction for domestic violence will result in restrictions on purchasing and possessing firearms. Misdemeanor charges are usually initiated by warrant or summons and are then tried in the General District Court or Juvenile Court. A conviction in those courts may be appealed to Circuit Court. Examples of other misdemeanors: trespassing, petit larceny, and driving under the influence of alcohol and/or drugs (although repeat offenders are subject to felony prosecution for a third offense within ten years and a felony may be charged when serious injury or death occurs in an alcohol related accident).

Motion to Strike


This is a defense motion made at the end of the Commonwealth's case or at the end of the trial. It requests the court to strike (dismiss) the charge and find the defendant not guilty. The argument in favor of the motion may be that there is not enough evidence to convict the defendant or that the conduct proved does not amount to commission of a crime.

Motion to Suppress


This is a defense motion to prohibit the Commonwealth from using certain statements or evidence at trial. The motion may be waived if not timely made before trial. Under certain circumstances, the Commonwealth can appeal a ruling suppressing evidence on the grounds that police violated a suspect's constitutional rights. This motion asks the court to apply the exclusionary rule explained above.

Nolle Prosse

(Also Nolle prossequi)
This is a motion by the Commonwealth to end the prosecution of a case before trial without a determination of guilt or innocence. Charges that have been nolle prossed may be brought back in the future unless jeopardy has attached. See Double Jeopardy explained above.

Preliminary Hearing


A hearing in the General District or Juvenile Court to determine if probable cause exists for a felony charge brought on an arrest warrant. No preliminary hearing is required for a felony charge brought directly by an indictment where the accused was not arrested on the felony before indictment. At a preliminary hearing the judge will certify (send) the charge to the grand jury if probable cause is found. The judge will dismiss the felony if no probable cause is found, or amend the felony to a lesser included misdemeanor if the evidence establishes that only a misdemeanor charge can be maintained.

Sentencing guidelines


Virginia has sentencing guidelines that must be prepared for most felony convictions. Sentencing guidelines are different in other states and under federal law. A Virginia court is not required to follow the guidelines in sentencing, and a failure to follow the guidelines is not a basis for appeal. The law only requires that the guidelines be prepared and considered by the court before sentencing. A judge may depart from the guidelines by sentencing to more or less time than is recommended by the guidelines calculation. Virginia's guidelines are based upon historical sentencing data obtained from circuit courts statewide. The guidelines work sheets are provided online by the Virginia Sentencing Commission.

Venue


This is the appropriate place for criminal charges to be tried. With few exceptions, this will be where the crime was committed. One exception applies to murder cases. If it cannot be determined where the murder took place the crime may be prosecuted where the body was found.