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Commonwealth's Attorney
Glossary of Legal Terms
The following definitions are provided to help you understand the legal system. Please keep in mind these terms take on slightly different meanings in each state and the following explanations should only be applied to the Commonwealth of Virginia.
Appeal
Request by a party to a case for a higher court to review the case. In certain circumstances, the higher court must grant the appeal as a matter of right. In other circumstances, the higher court may grant or deny the appeal at its discretion. In criminal cases, the defendant may appeal a verdict of guilty, but the Commonwealth may not appeal a verdict of not guilty because doing so would be placing the defendant in unconstitutional double jeopardy.
Arraignment
A formal reading of charges to a defendant by a judge, to which a plea of "guilty," "not guilty," or "no contest" is entered and after which a trial is begun. A district court hearing in which only bond and counsel are discussed is not a true arraignment because a plea is not entered.
Bail
The terms, if any, under which a defendant may be released from jail between his or her arrest and later hearings or trial. The purpose of bail is to recognize defendants are innocent until proven guilty in a court of law and should not be held against their will for a lengthy time unless they represent dangers to the community, to themselves or to the judicial process. Under the Eigth Amendment to the U. S. Constitution, bail must not be "excessive."
Bail Bondsman
A person or business operating by posting bond for a defendant in exchange for a fee paid by the defendant. If the defendant fulfills bail, the bond is returned to the bail bondsman. If the defendant flees or otherwise violates bail, he or she is liable to the bail bondsman for the amount of the bond. Since the fee paid to a bail bondsman is much less than the amount of the actual bond, the defendant need not possess the entire sum required by the bond in order to be released from jail. The bail bondsman's fee, like fees for other services, is not refundable.
Bond
Formally "bail bond." A paper signed by a defendant or his surety setting an amount (in money or property) which may be forfeited for failure of the defendant to keep certain conditions (such as keeping the peace, avoiding the victim, remaining within the locality, etc.) or to appear before a specified court at a specified time. In return for posting bond, the defendant is temporarily released from jail.
Capias
Paper issued by a court commanding any law enforcement officer to arrest the defendant, usually for his or her failure to appear in court or as a result of his direct indictment by a grand jury. A capias has the same effect as an arrest warrant.
Certification
The act of approval by a district court judge there is probable cause for a felony charge (brought by a warrant) to be considered by a grand jury.
Court of Record
Court where all proceedings are recorded (on paper and/or audio or video tape) and thus become a part of the "record" of the case. Appeals from courts of record are reviews of the record (i.e. new evidence is not taken). In Virginia, courts of record include the circuit courts, the Court of Appeals and the Supreme Court.
Court Not of Record
Court where proceedings are not recorded as a matter of course. Appeals from courts not of record are heard de novo (i.e. testimony is taken again). In Virginia, courts not of record include juvenile and domestic relations district courts and general district courts.
De Novo
Latin for "from the start." Refers to a case being heard (usually on appeal) as if the case had never been heard before. A case will be heard de novo if it has been appealed from a court not of record (eg. a case appealed from general district court to circuit court).
Direct Indictment
An indictment presented to the grand jury by a commonwealth's attorney which sets forth a charge for which no warrant was ever obtained or for which a warrant was dismissed by a district court judge for lack of probable cause.
Double Jeopardy
The Fifth Amendment to the U. S. Constitution provides "...[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb..." This protection prevents federal, state or local prosecutors from trying a defendant again on the same charge for which he or she was previously found not guilty.
Due Process of Law
The requirement found in the Fifth and Fourteenth Amendments to the U. S. Constitution that no persons in the United States be deprived of life, liberty or property by any level of government unless procedures designed to safeguard their rights have been followed. In addition to other rights found in the U. S. Constitution and other laws, due process includes the right of a defendant to be notified of the charge against him or her and to be granted a fair hearing on that charge.
Evidence
Any testimony, records, documents, objects or other materials legally admitted to the trier of fact to assist in reaching a decision on the ultimate issue. For more information, see Overview of Evidence.
Felony
A criminal offense which can be punished by confinement in the penitentiary. A crime is a felony if it is designated by law as a felony. In addition to other penalities, felons lose their rights to vote, hold public office, serve on juries and carry concealed weapons.
Grand Jury
A group of five to seven citizens who review indictments presented by a commonwealth's attorney, including those certified by a district court judge. If the grand jury determines, by majority vote, there is probable cause for the defendant to stand trial in circuit court, the indictment will be returned as "a true bill." If the grand jury does not find probable cause, the indictment will be returned as "not a true bill," and all charges will be dropped. The commonwealth's attorney can present the same charge to the grand jury in the future. Since the defendant was not in jeopardy of punishment when the grand jury was considering the original bill of indictment, a representment is not considered unconstitutional double jeopardy.
Indictment
1) A written accusation a defendant has committed a criminal offense. Indictments are prepared by the commonwealth's attorney and considered by a grand jury through testimony of witnesses summoned by the commonwealth's attorney.
2) A "true bill of indictment" is the agreement of a grand jury probable cause exists to order a defendant to stand trial on the charges in the indictment. When this occurs, the grand jury is said to have "indicted" the defendant.
Infraction
A violation of public order which is handled procedurally as if it were a crime but which is not a criminal offense. For example, exceeding the posted speed limit is a traffic infraction, while driving recklessly is a criminal offense.
Jail
A local penal facility under the supervision of the local sheriff. A jail may also house federal and/or state prisoners by agreement between the sheriff and other authorities. The Roanoke City Jail houses persons awaiting trial in state or federal courts in Roanoke, persons convicted of misdemeanors who are serving their sentences and certain felons.
Jurisdiction
The power a particular court or official has to act in specific disputes, crimes or areas.
Magistrate
A judicial officer who hears complaints from law enforcement officers and citizens and decides, based on sworn statements, whether probable cause exists to issue arrest warrants, search warrants, subpoenas or other orders. In addition, magistrates set conditions of bail when individuals are arrested on warrants. Magistrates operate independently of law enforcement agencies or courts so they may make independent evaluations of complaints against citizens. For more information on magistrates, visit the Office of the Magistrate.
Misdemeanor
A criminal offense for which the maximum possible penalty is a monetary fine and/or 12 or fewer months in jail. A criminal offense is a misdemeanor if it is defined by law as a misdemeanor.
Penitentiary
Petition
Equivalent of a warrant, but issued for a juvenile by an intake officer or a magistrate.
Plea
A defendant's answer to a criminal charge. Defendants in Virginia are permitted to plead "guilty," "not guilty" or "nolo contendere (no contest)."
Preliminary Hearing
A procedure in district court to determine whether probable cause exists to certify a felony charge to a grand jury to be considered for indictment.
Probable Cause
A determination by a magistrate, district court judge or grand jury a crime was probably committed and the person named in the charge probably committed the crime. Probable cause must be found before an arrest warrant or search warrant may be issued, before a judge may allow a trial to continue after the defendant is presented to the court and before a grand jury may order a defendant to stand trial.
Proof
Recognizance
Type of bail bond executed by defendant, who agrees by his or her signature to pay a monetary penalty in the future if he or she violates the terms of bail. In return for this promise, the defendant is released from jail pending trial. A defendant will often be released on his or her own recognizance if a magistrate or district court judge does not believe the defendant will breach the peace, flee the jurisdiction of the court or fail to appear for trial.
Subpoena
A paper issued by a magistrate or judge, commanding a person to personally appear or to produce certain documents or items, before a specifed court at a specified time. A subpoena does not charge a person with any violation and is usually directed at witnesses or evidence related to an existing trial.
Summons
A paper charging a misdemeanor or traffic infraction violation, issued by a law enforcement officer whereby the defendant agrees by his or her signature to appear for trial before a specified court at a specified time. The issuance of a summons allows an officer to charge a person without making a physical arrest.
Surety
A person who on his own or for a corporation posts bond, agreeing to guarantee the appearance and/or good behavior of the defendant while he or she is released on bail. If the defendant violates any condition or fails to appear, the surety may lose the amount (or thing) he or she posted. A surety may be a friend or relative of the defendant or a bail bondsman.
Transfer
The process whereby a juvenile between the ages of 14 and 18 (at the time of the offense) can be removed from a juvenile and domestic relations district court to the circuit court for trial as an adult.
Trier of Fact
The judge or jury in a trial -- whoever is to consider the facts of a case and decide whether the defendant is innocent or guilty.
Venue
The place (such as the city of Roanoke) where an alleged crime took place.
Warrant
The Fourth Amendment to the U. S. Constitution provides
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A warrant is therefore a paper issued by a magistrate charging a person with an offense and commanding any law enforcement officer to arrest the person named in the warrant (in the case of an arrest warrant) or permitting a law enforcement officer to search a place specified in the warrant to find an item or items specified in the warrant (in the case of a search warrant). Warrants are issued upon a finding of probable cause based on sworn testimony by a law enforcement officer or citizen.
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