23 January 2022

Virginia Prosecutors' Ability to Appeal: The Last Antecedent Doctrine

The ability of prosecutors to appeal in Virginia is limited to interlocutory appeals under an enabling statute. Va. Code § 19.2-398. It begins by allowing appeals when a case is dismissed on speedy trial grounds or double jeopardy [subsection A(1)] and further down in the statute it allows the prosecutor to appeal decisions about bond [B], sentences when the judge doesn't follow mandatory requirements [C], and dismissals because a judge has found a statute unconstitutional [E]. All of that is pretty straight forward; the play in the statute is subsection A(2).

Subsection A(2) should simply state "If a trial judge prohibits an item of evidence prior to trial the Commonwealth shall have a right to appeal." Unfortunately, it doesn't. Instead, our General Assembly has saddled us with

An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.

Clever defense attorneys will try to work around the edges here. Most often it comes in the form of a claim that the evidence should be suppressed for violation of due process under the 5th and/or 14th Amendments. Another argument seen on appellate briefs is that all appeals by the prosecutor under this section must fulfill the "prohibiting illegal searches and seizures and protecting rights against self incrimination" portion of the statute. This is fairly self-evidently wrong, but for those of you who can't figure out why, I thought I'd lay out the doctrine and precedents.


Example Scenario:  

A domestic victim testified in a preliminary hearing against the man who beat her and put her in the hospital [malicious wounding 5-20 years]. The defendant was present and the defense attorney fully cross examined the victim. Before trial, the victim sends a letter to the court telling the judge she is moving to Idaho and she's not coming back to testify at trial because she's scared about threats from the defendant's family. Despite the copious amount of case law stating her prelim testimony can be introduced at trial, the defense moves for its suppression and the trial judge grants the suppression on 6th Amendment "right to confront" grounds. The prosecutor appeals to the Virginia Court of Appeals and the defendant's reply brief only argues one point. He states that the prosecution is barred from having this appeal because it has nothing to do with "prohibiting illegal searches and seizures and protecting rights against self incrimination."


The Applicable Rule:

The Last Antecedent Doctrine / Rule of the Last Antecedent - "[A] limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26 (2003). This doctrine has been followed since at least 1959 by the U.S. Supreme Court, Federal Trade Commission v. Mandel Brothers, Inc, 359 U.S. 385 (1959), and the Virginia Supreme Court applied it specifically to statutes pertaining to criminal law in 2004. Alger v. Commonwealth, 267 Va. 255 (2004). As recently as 2017 it has been applied to a criminal statute by the Virginia Court of Appeals, which stated "[t]he rule of the last antecedent is the preferred procedure for clarifying whether modifying language is intended to modify all preceding antecedents or only the final one." Coffman v. Commonwealth, 67 Va. App. 163, 168 (2017).


Applying the Rule:

One of the keys in the use of this rule is locating the disjunctive conjunction (although it seems like it should work the same for inclusive conjunctions). Under precedent and basic grammar rules, “or” is a disjunctive conjunction expressing alternatives. See Merriam-Webster Disjunctive (1)(b) (https://www.merriam-webster.com/dictionary/disjunctive). In the Virginia Supreme Court the last antecedent doctrine was applied in Alger when “or” separated “firearm or stun weapon.” It determined that the language to the right of the “or” was the last antecedent of a modifying phrase which followed allowing possession in a residence. Thus, it determined that a stun weapon could be possessed at a residence by a felon, but not a firearm. Similarly, the U.S. Supreme Court in Mandel Brothers determined that in a list of “a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs” the last antecedent was to the right of the “or” and therefore “who is engaged in dealing commercially in fur products or furs” applied solely to the phrase “any other person.”

There are, of course, two "or"s in the pertinent language of the subsection. One separates the federal 4th, 5th, and 8th Amendments from Article I of the Virginia constitution. One could argue this is the pertinent "or", but the far better fit is the second "or" which separates sections 8 [Rights of the Criminally Charged] & 10 [Banning General Search Warrants] of Virginia's Article I from section 11 [Due Process]. The primary reason the second "or" is the one which should be used is because it is the actual last division setting the last antecedent to its right. Beyond that, "prohibiting illegal searches and seizures and protecting rights against self incrimination" has more application in a due process zone because when in a probation violation hearing the rights of the accused are found under due process protections. Thus, if a judge were to exclude some evidence before a probation violation hearing after finding an unconstitutional search or interrogation that exclusion could be appealed.

Of the two arguments, the primary one is the strongest and should carry the day if the appellate court is in a logical mood. One would have to engage in a fair level of sophistry to bypass the last antecedent rule. The second argument bolsters the primary, but it is far from bulletproof. It's biggest difficulty is that because there is no inclusion of due process in the list of federal amendments which can be appealed the inclusion of section 11, however it is limited, is effectively moot. Attorneys are trained to raise issues under the federal constitution because Virginia's appellate courts have been very strict in their insistence that rights under the Virginia constitution are merely co-extensive with the federal rights. Additionally, a competent defense attorney wouldn't base his argument on section 11 because that would subject a successful motion to suppress to appeal. So, while the modifying information clearly attaches to the last antecedent, section 11, the section 11 language itself is meaningless. This could be used as an excuse to ignore the plain reading and the rule.



However you apply the last antecedent doctrine, the federal amendments which a prosecutor is allowed to appeal are not modified by the "prohibiting illegal searches and seizures and protecting rights against self incrimination" language. There are two "or"s between that part of the statute and the modifying language. The modifying language solely applies to Article I section 11. Even if an appellate court were to widen the application of the modifying language it shouldn't be able to get past the applying it only to Article I. Or at least it shouldn't be able to without tying itself into a knot of illogical sophistry. They do this at times (My favorite over the last few years was the 4th Circuit writing 11 pages of smoke and mirrors trying to convince everyone that there isn't a clear understanding of what a habitual drunkard is as opposed to the extremely simple and easily understood "someone who is habitually drunk most or all of the time.")

Anyway, per the statute as written and the doctrine as applied, if a judge prior to trial suppresses evidence upon any 4th, 5th, or 6th Amendment grounds the prosecution has a right to petition for an appeal. Sorry defense attorneys, you're going to have to keep trying to exclude for due process reasons if you want to avoid giving prosecutors any due process.