Three things you decide at a misdemeanor trial

So you’ve been charged with a misdemeanor offense in Virginia. The court has set your hearing date (trial date). Be aware that you will have to make some important decisions for your hearing in General District Court (“GDC”).

First, if the prosecutor offers you a deal to avoid a trial, do you accept or reject the deal? Some offers ask for jail time, a fine, or both. Other offers ask for probation, community service, or completion of a program. In some courts, a prosecutor will work out a deal with your defense attorney, but not directly with you, so it could be a good idea to have a defense attorney. Usually, only a prosecutor can offer to amend a charge to some other offense that has fewer or different consequences on your driving privileges, immigration benefits, and so on. This is not a complete list of what an offer could contain, for example, a prosecutor also could offer to not prosecute one or more of the charges against you as part of the deal.

If there is no offer from the prosecutor, or if you reject the deal for whatever reason, we go to trial and the judge decides your guilt or innocence.

Second, if you go to trial, do you want to get on the witness stand to tell the judge your side of the story? Our Constitution gives you the right not to testify at your own trial. But if you do take the stand anyway, know that the prosecutor (or judge) can ask you questions about the case after you are done answering the friendly questions from your defense lawyer. And because you took the stand, you may not be able to “take the Fifth” to avoid an unfriendly question from the prosecutor or judge.

Third, if the judge in GDC finds you guilty, do you want to appeal? You will lose your right to appeal after 10 days unless you correctly file the proper notice of appeal with the GDC clerk, perfect any appeal bond, and complete any other steps needed to set up the appeal, all within the 10 days. If you are able to appeal, you will get a new trial in a higher court called the Circuit Court. This could be a jury trial, or a bench trial.

If you want to appeal from GDC, you must tell your defense lawyer right at or right after the GDC trial that you want to appeal, because he or she needs time to set up your appeal before the 10-day deadline expires. If you do not have a defense lawyer, find out right after the GDC trial what you have to do to appeal, and by when, and then do it.

Procedures to appeal and try a case in Circuit Court are more complex, so do think about using a defense lawyer. A defense lawyer can also advise you about the availability of any alternatives to appeal, such as a motion to reopen filed within 60 days of the GDC trial, or a writ of error coram vobis.