Fairfax County Preliminary Hearings
Under Virginia law, Felony cases typically originate with a Preliminary hearing in the General District Court. The General District Court in Fairfax hears cases on the first and second floors. Circuit Court is in the same building and hears cases on the fourth and fifth floors.
During a Preliminary hearing, the Government is required to put on evidence to establish that probable cause exists. Probable cause is a very low standard. The Government is only required to show that a crime probably took place and that the accused probably did it. They do not have to prove it beyond a reasonable doubt and often a confession or statements by the accused can be sufficient to establish probable cause. Sometimes just the statements by a victim can be enough to carry the case. If after hearing the evidence the judge believes that probable cause exists, the case will be sent to Circuit Court.
Additionally, the result of the Preliminary hearing may not be final. Even if the judge finds that probable cause doesn’t exist, the Government can still elect to send the case to Circuit Court. This is called a straight indictment. If the Government elects to proceed in this fashion it can cause certain problems for the accused. The biggest problem is that a straight indictment is technically a new case. The accused may be rearrested and required to pay a new bond. Also, any time the accused has spent in jail may not be credited against the new charge.
Because these problems may exist if a matter is straight indicted and because you technically can’t win a Preliminary hearing the strategy changes significantly. For example, the defense will typically use the hearing to learn about the case and to get witnesses under oath. Discovery is extremely limited in Virginia, and the Preliminary hearing may be one of the only opportunities that exist to lock adverse witnesses into a story.
Many times in Fairfax, the Prosecutors office will not look into a case before the date of the Preliminary hearing. This is particularly true for low level felonies that don’t involve violence. Crimes like drug possession, Felony DWI and Grand larceny are typically handled in this fashion. That means that the preliminary hearing will be the first date that the defense attorney can discuss the facts of the case and the evidence with the Prosecutor assigned to handle the case.
Before the hearing starts, the Prosecutor will extend a plea offer to the accused. The terms of the offer will often not be hashed out until just before the hearing and the accused may only have a short period of time to make a big decision on whether to take the offer or not. For this reason, it is essential that clients discuss their case in great detail with their lawyer and have a very good idea of what plea terms would be acceptable and which will not. If there is some term that may be problematic for employment or personal issues, you must know the ramifications before court. After court, there may be nothing that can be done to fix an unintended consequence.
