08 December 2004

The Preliminary Hearing in Virginia

Mr DA comments on my last post:
You don't have court reporters at PC hearings!? How the heck [is a personal tape recording] an official record? Doesn't the court keep a verbatim record of its own? I mean, we've had a nasty infestation of video courts in the last few years, but at the very least there is a certified video clerk logging times and names and exhibits and such like, and a honest to God certified court reporter of one sort or another has to prepare the record. How can it be a court of record if no one is keeping a record?
The inferior trial court in Virginia is not a court of record. There's never a court reporter unless someone pays for it. As well, the inferior court does not approve the charges for trial; it only sends the charges to the grand jury and the grand jury then decides whether or not the case will go to trial (along with all the other ham sandwiches).

In fact, a prosecutor does not have to submit to the findings of the judge in the inferior court. If the inferior court judge finds that probable cause is lacking and dismisses the prosecutor can then take the case directly to the grand jury and indict on any charge he wishes. Even if the judge found probable cause the prosecutor can indict the Defendant on new and / or different charges in front of the grand jury. The prosecutor can even skip the inferior courts entirely, take a case to the grand jury to get the charges, and have no hearings outside the superior trial court.

Why do we even have preliminary hearings then? Well, there's this little statute:
No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing by the accused.
So, in theory all felonies should have prelims before indictment. I'm not sure how this is gotten around having never had a reason to challenge it and thus no reason to do the research (I'll happily post the answer if someone emails it in).

Beyond the theoretical reasons there are also practical, real-world reasons. If a person is arrested and delivered to the jail prior to an indictment (generally on a warrant sworn out by an officer) the preliminary hearing is a necessary part of keeping him in jail. He is held on the warrant until the prelim date and, assuming the charge is approved by the inferior trial judge, he is then held until trial in the superior court. Without this process no one could be held until an actual indictment came down and the grand jury only sits once every month or two (sometimes three). The prosecution and police generally aren't willing to let a murderer roam the street for a month while they wait for the indictment.

The Defense wants prelims to take place because they are where we get a lot of our information about the case. Required discovery in Virginia is minimal. Trial by ambush is apparently the way our Legislature and Supreme Court think we can get the best results. While many prosecution offices will turn over more than that required, some prosecutors play this to the hilt. So the Defense attorney wants that prelim. Everyone knows that the prelim is basically discovery for the Defense. Our appellate courts deny it but most trial judges realize what the situation is and give us a good deal of latitude in asking pertinent questions.

Because the inferior court has no record, a long standing practice has been for Defense attorneys to use tape recorders in these proceedings because of the lack of a court reporter. It's not efficient. In fact, it's quite a pain to work with but the courts aren't going to approve a reporter for anything short of major cases. And even the use of tapes has been called into question by the Yarborough case. In this unpublished opinion the appellate court allowed a superior court to shut down an attorney who was using a transcript of his tape and had the tape available at court. The appellate court did not reach the merits; it denied the appeal on procedural grounds. Still, it is enough to make me wonder about the viability of tapes. And the reason I wanted a court reporter when my case became extremely serious.


Ken Lammers said...

The judge certifies the charge to the grand jury. All felony charges must all go through the grand jury for an indictment (although a Defendant can waive this).

Mister DA said...

That was a fascinating explanation of your situation, Ken. Thanks. I think you've given me my next topic for my own blog. In all honesty, I didn't think non-record courts existed for anything more serious than civil traffic hearings or small claims. I guess I need to get out more, huh?

In my state, we can proceed by indictment or information. If indictment, that's the end of it as far as any set, formal judicial hearing goes. But grand juries are few and far between (no one wants to pay for them) so the typical case starts with a warrant and complaint (I think I was sufficiently pedantic on that over at my blog), an arrest, an arraignment/bail hearing on the warrant before a magistrate or judge of the misdemeanor court, and a PC hearing before a judge of that court. As I think I mentioned, that hearing is a full bore, on the record, rules of evidence apply, adversarial proceeding. Pretty different, I'd say.

Curtis said...

Interesting post. In my county, for probable cause hearings, there will be a court reporter. Unlike Mr. DA, however, we don't use the evidence rules in these hearings. They are typically a rubber stamp for the prosecutors, so us defense attorneys use the opportunity to cross-exam the police officer as a discovery tool. It's all reported though.