05 April 2005

JRM asks:
Can you help us out on Virginia criminal procedure? In California, prosecutors make charging decisions, not victims. If a victim wants to "press charges" it's not legally meaningful.

It sounds like from this account that something else occurs in Virginia. Is this right?
In Virginia there is a magistrate who sits at the jail and actually signs off on any warrant. Usually this means that an officer comes before the magistrate and tells him Suspect Smith did such-and-such and he wants a warrant for Smith. In theory magistrates are nuetral parties who judge whether or not there is probable cause but in reality most of the time they act as the charging arm of the police department. In fairness, I must say that there may be a number of charges which they refuse to warrant on any given day but I don't hear about them; I get the clients who tell me how they sat there while the magistrate and officer looked through the statutes to find something to charge them with (usually in response to the question: "I've been doing this for years and never seen anyone charged with felony emptying trash with only one shoe before. Didn't even know it was illegal. How did you get charged with that?").

However, citizens can also go to the magistrate and try to get him to file charges. Some magistrates are more reluctant to approve these charges and it is vary rare to see a magistrate approve a violent felony charge unless an officer is there to support the charge.

This process is abused shamelessly. Businesses go in and file felony and misdemeanor check charges left and right in order to avoid having to take people to civil court (charges are often dropped if payment is made and restitution is mandated upon conviction).

Beyond this, regular citizens go in and take out all sorts of misdemeanor charges against each other. The most common of these are assault and battery, various phone abuse charges, trespassing, violations of local pet ordinances, etc. Quite often, when one citizen goes and files a charge the other citizen goes and files another against the first. These are "cross-warrants" and usually both charges are valid because they arise from some long running fued wherein both parties have managed to do something which is technically illegal.

Cross-warrants are acrimonious and take a long time to try because of all the emotion and the tendency of both sides to bring 4-5 witnesses for their big day in court. Prosecutors tend to roll their eyes at them and sigh in exasperation. Judges hate them because they clog the docket. In most cases everybody wants the two misdemeanor dog running free cases (which would take a hour to try) settled so that more serious cases can be handled. The usual way that this is handled is for the two defense attorneys to do an accord and satisfaction wherein both defendants certify that they are satisfied and the judge dismisses the case but alots court costs to the parties.

Now, the prosecutor always retains the ability to amend or dismiss charges. If the prosecutor feels that one of the cross warrants is ridiculous he can drop it and choose to prosecute the other. Technically, the prosecutor could choose to move all citizen warrants for nolle prosequi (dismissal without prejudice for those of you in heretical jurisdictions which use English rather than Latin). In some jurisdictions prosecutors' offices have adopted a policy of not pursuing check charges filed by businesses (under the theory that prosecution offices are not collection agencies). However, in most cases prosecutor won't dismiss charges filed by voters; they (and the judges as well) will just lean on the defense attorneys to try to get them to settle it out and accept anything reasonable the defense attorneys come up with (again, usually an accord and satisfaction).

Hope that clears it all up.

1 comment:

Anonymous said...

Thanks, Ken.

This seems like a nightmarish scenario. Here in California, we get people complaining against each other, and we determine credibility. If we don't think we can prove a case beyond a reasonable doubt, we don't file the case, and it doesn't end up in court.

These "cross-warrant" situations, by and large, don't get past the issuance stage. People do get arrested, certainly. But we don't have attorneys and witnesses in court unless we have an actual provable case.

Again, thanks for the info. It's always fascinating to see how other states and jurisdictions do things - we can learn about both the good and the bad.