tag:blogger.com,1999:blog-4098620.post114637026329187941..comments2024-03-15T04:02:42.341-04:00Comments on CrimLaw: Be Careful What You Ask ForUnknownnoreply@blogger.comBlogger3125tag:blogger.com,1999:blog-4098620.post-1146780153567632682006-05-04T18:02:00.000-04:002006-05-04T18:02:00.000-04:00Interesting point on the dismissal at a PC hearing...Interesting point on the dismissal at a PC hearing. I have long wondered what really was the point of the prelimiary hearing in Virginia law. Case law tells us it is not to be used as a discovery device, which it inevitably becomes, so far as the Commonwealth introduces witnesses. For that reason it is a benefit to the Defendant. But of what benefit is it to the prosecution when it has the ability to directly indict at the grand jury level? For the prosecution, the preliminary hearing is an unnecessary and unrequired step in the criminal process. Why waste your time exposing your witnesses and case theory to defense counsel without needing to? If this procedural quirk works its way down the totem pole, you won't see any PC hearings anymore.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4098620.post-1146495557328557372006-05-01T10:59:00.000-04:002006-05-01T10:59:00.000-04:00You are probably right in stating that the prosecu...You are probably right in stating that the prosecutor made a mistake. In fact, I'm sure you are since he went right out and re-indicted. It was still a dismissal.<BR/><BR/>Basically the court has made a ruling which says <I>nolle prosequi</I> is what other States call dismissal without prejudice and dismissal is what other States call dismissal with prejudice. I would say that this is generally how I've seen it treated in the trial courts. However, I am aware that there was a minority treatment in the opposite direction which tended to become more likely as the cases got more serious.<BR/><BR/>I may be over-reaching when I state that this was about the Supreme Court deciding ambiguities in the defendant's favor, but it strikes me that if this had not previously been addressed in the rules, statutes, or case law there was a built in ambiguity: what does dismissal mean?<BR/><BR/>We now know. Dismissal means the case ain't coming back.Ken Lammershttps://www.blogger.com/profile/15646250142814585354noreply@blogger.comtag:blogger.com,1999:blog-4098620.post-1146491523785641012006-05-01T09:52:00.000-04:002006-05-01T09:52:00.000-04:00That's a very interesting case because it creates ...That's a very interesting case because it creates something that never existed before in Virginia criminal law: "dismissal with prejudice." This legal device does not exist in the Rules of the Supreme Court, it does not exist in statutory law, and it did not before this case exist in the common law of Virginia. Before this case, one could dismiss a case, and then the sole question was whether jeopardy had attached. If it had, there could be no retrial. If jeopardy had not attached, there was no bar to retrial.<BR/><BR/>In this case, there was no jeopardy, since the defendant was not even present. No arraignment had even occured, and no plea had been entered. Without jeopardy attaching, the result should be: dismissal, but retrial permitted.<BR/><BR/>What the Court in this case does is say there is now something called "dismissal with prejudice," and that it existed in this case, despite the fact that neither the trial court nor the parties nor the appellate courts could point to any express language stating that the dismissal was "with prejudice."<BR/><BR/>Talk about elevating form over substance. This was nothing but an inartfully phrased nolle prosequi motion. It has nothing to do with giving the prosecution some benefit of a doubt. The SCV just created a new procedure out of whole cloth and put a violent criminal back on the streets. <BR/><BR/>The general procedure in Anglo-American jurisprudence is not to promulgate new procedural rules and apply them ex post facto. It's a matter of basic fairness to the litigants, so they can know and rely upon the rules. Here, they created a new rule that did not exist when the case was tried. The SCV apparently missed that class in law school.Anonymousnoreply@blogger.com