Criminal Defense
Having an experienced attorney is essential if you are wrongly accused of a crime.  A former Assistant Public Defender for the Winchester, Virginia office of the Public Defender, Mr. Saiki has represented many clients accused of misdemeanor and felony offenses.  He has appeared in all levels of Virginia trial courts.

The Law Office of David M. Saiki proudly serves the communities of Prince William County, including Manassas, Haymarket, Occoquan, Dumfries Woodbridge and Quantico, as well as the neighboring communities including Warrenton, Centreville, and Chantilly.

Please see the question and answer section below for answers to any questions you might have.


What is discovery?

In both misdemeanor and felony criminal cases, the Commonwealth (the prosecution) will give to your attorney information about your case that is in the Commonwealth's possession.  This information usually includes notes from the officer's investigation, photographs, physical evidence, witness statements, the results of scientific tests such as ballistic or DNA test results, and your criminal record. 

What is a preliminary hearing?

In Virginia, there are various safeguards in place to ensure that a person is not prosecuted unfairly.  One of these is the requirement that the Commonwealth establish, early in the case, that it has good cause to continue with charges against a person.  This is the purpose of the preliminary hearing.  A preliminary hearing is held in felony cases, but not in misdemeanor cases.  In a felony case, the General District Court will hold a hearing at which the Commonwealth will present evidence to establish that they have probable cause to continue the case against you.  If, after hearing the evidence, the General District Court judge decides that the Commonwealth has enough evidence to continue the criminal charges against you, the judge will certify the case to the Circuit Court.  If, on the other hand, the judge decides that the evidence is insufficient to maintain charges against you, the judge will dismiss the charges against you. 

The preliminary hearing is an important event in a criminal case.  It is your opportunity to hear what evidence the Commonwealth has against you.  Your attorney will have an opportunity to question the Commonwealth's witnesses at the preliminary hearing.

What is an indictment?

In a felony case, if the General District Court judge has certified the case to the Circuit Court, the Grand Jury will meet to decide if the Commonwealth can establish probable cause to maintain the charges against you. The Grand Jury is composed of citizens from the community in which the charge is being prosecuted. The role of the Grand Jury is very similar to the role of the judge at the preliminary hearing in the General District Court. If the Grand Jury decides that the Commonwealth has produced sufficient evidence for the case to continue, the Grand Jury will issue an indictment, which is a formal statement of charges, against you.  The case will then be scheduled for a trial.  If the Grand Jury decides that the evidence is insufficient, the Grand Jury will refuse to issue an indictment against you, and the case will be dismissed.

What is a pretrial motion?

A motion is a request to the Court.  Motions can be made anytime.  A "pretrial motion" is simply a motion that is made before trial. There are many kinds of pretrial motions.  Some examples are: motions to dismiss because of double jeopardy, motions to reduce bail, motions to test physical evidence, motions to change venue, motions to reveal the deal, and motions to suppress evidence.

One of the most common of the pretrial motions is a Motion to Suppress the Commonwealth's Evidence.  Your attorney will file this motion if, after investigation, he believes that the Commonwealth obtained evidence against in violation of your rights.  If the judge agrees with your attorney, and suppresses a particular piece of evidence, that evidence cannot be used against you at trial.

What are the stages in a criminal case?

Misdemeanor cases are heard by the General District Court.  In a misdemeanor case, there is no preliminary hearing, or indictment.  There is only one important date: the trial date.  On that date, the judge will hear any pretrial motions, will try the case, and will sentence you if you are convicted. 

In a typical misdemeanor case,  the Commonwealth will usually offer a plea agreement.  In a plea agreement, the Commonwealth will agree to a certain penalty in exchange for your plea of guilty.  If you like the terms of the agreement, you can accept the agreement. The judge will enter whatever penalty you agreed to in the agreement.  If you don't like the offer, you can either plead guilty in front of the judge, and let the judge sentence you, or you can take your case to trial.  If you choose to go to trial, the Court will hear evidence from both sides, will decide innocence or guilt and will impose a sentence.  If you are convicted after trial and you don't like the outcome, you can appeal your case to the Circuit Court for a new trial.

Felony cases involve more steps than misdemeanor cases.  In a felony case, the first step is a preliminary hearing in the General District Court.  If the General District Court judge concludes that the Commonwealth has a case, he will certify the case to the Circuit Court.  The Commonwealth will then convene a Grand Jury to hear the evidence again. If the Grand Jury decides that Commonwealth has sufficient evidence to maintain a case against you, the Grand Jury will issue an indictment.  After the indictment has been issued, the case will be set for trial.  The Commonwealth will also produce discovery.  Your attorney will review the discovery, and perform further investigation of your case to prepare for trial.

Before trial, your attorney will file and argue any relevant pretrial motions.  For example, if your attorney believes that the police violated your rights by performing an illegal search, your attorney will file a motion to suppress any evidence that came from the illegal search.  If the judge grants the motion, the evidence cannot be used against you at trial. This will improve your chances if your case goes to trial. This may also strengthen your position in plea negotiations if you choose to negotiate a plea agreement with the Commonwealth.

What is the difference between accepting a plea agreement and pleading guilty in front of the judge?

A plea agreement is an agreement in writing between you and the Commonwealth.  The written agreement will lay out the exact terms of your sentence, your probation, and any restitution you must repay. 

A guilty plea, by contrast, is a situation in which you simply admit guilt to the judge, and the judge sentences you.  What sentence you get is up to the judge.  The judges normally follow the sentencing guidelines in felony cases (see below for a discussion on sentencing guidelines).

Of course, plea agreements have much less uncertainty than guilty pleas.  However, in some situations, it is advantageous to plead guilty in front of the judge instead of accepting a plea offer.  This might happen, for example, if your sentencing guidelines indicate that you should receive a sentence that is lighter than what the Commonwealth is offering in their plea offer.  In that situation, the judge will normally follow the guidelines, and give you a sentence that is lighter than the sentence the Commonwealth was offering.

If I choose to take my case to trial should I have by case decided by a jury or a judge?

In Virginia, both the Commonwealth and the defendant must agree to waive a jury.  This means that, if you request a jury, the court must empanel a jury to try your case.  On the other hand, it also means that if you don't want a jury to hear your case, the Commonwealth can still insist on a jury trial (because, as just mentioned, the Commonwealth also must agree to waive a jury trial).

Bench trials (trials decided by a judge) and jury trials both have their advantages and disadvantages.  One very important consideration is that in Virginia, judges base their sentencing decisions on the sentencing guidelines, but juries don't. (see below for a discussion on sentencing guidelines).   This could be a problem if your sentencing guidelines indicate that you should receive a low sentence, but the offense with which you are charged carries a high maximum sentence.  In this situation, the jury could sentence you in excess of what the guidelines indicate you should receive.  In this situation, a bench trial may be the better option.  

If I am convicted, what will be the penalties?

In a misdemeanor case, your sentence will be imposed by the judge.  Your sentence is entirely up to the judge, and can be up to a year in jail and a $2,500.00 fine for a Class 1 misdemeanor. 

In a felony case, unless you are convicted after a trial by a jury, your sentence will be determined by your sentencing guidelines,  (see above for a discussion of the differences between bench trials and jury trials). The sentencing guidelines use a mathematical calculation which assigns scores to your current and prior offenses and then adds them up, along with other factors, for a total score, to determine what sentence you will receive.  See the site at www.vcsc.state.va.us for more background on the guidelines.

The judge will normally follow the guidelines if you are convicted after a bench trial, or if you plead guilty without a plea agreement.  If you are negotiating a plea agreement, the Commonwealth will normally use your score on the sentencing guidelines to decide what kind of agreement to offer.

Most sentences include a suspended term of incarceration.  This is true if you are given active incarceration or no active incarceration.  A suspended sentence is a sentence that you will not serve, unless you violate your probation.

Most sentences include a probationary period.  For misdemeanor offenses the probation is unsupervised.  This means that you must simply be on good behavior.  You will not have to report to a probation officer.  For felony offenses, most probation is supervised.  You will have to report to a probation officer and follow your probation officer's instructions.  If the courts orders you to pay restitution (repay some money) you must make the payments as ordered as part of the terms of your probation.

  If you violate probation, the judge can give you back some or all of the incarceration time that he had previously suspended.  For example: if you are sentenced to two years of time, all of which is suspended, and you are put on probation for one year, if you violate the terms of probation at any time during the one year period, the judge can require you to serve any portion, or all, of the two years he had suspended. 

What are my appeal rights?

In a misdemeanor case you have an absolute right to appeal your case to the Circuit Court for a new trial if you are not satisfied with the outcome in the General District Court.

In a felony case, an appeal from the Circuit Court to the Virginia Court of Appeals is discretionary with the Court of Appeals.  In other words, it is up to the Virginia Court of Appeals to hear an appeal of a case from the Circuit Court.

If the Court of Appeals grants an appeal from the Circuit Court the Virginia Court of Appeals will not retry your case.  The Court of Appeals will instead review the record of the proceedings in the Circuit Court.  The record is comprised of any written motions, the trial transcript of the trial in the Circuit Court, and any trial exhibits.  The Court of Appeals will check the record for any errors during the trial. If the Court of Appeals finds a serious error that affected the decision of the trial court, the Court of Appeals will send the case back to the trial court for a new trial.  However, if the Court of Appeals finds no serious error occurred that could have affected the trial, it will affirm the judgment of the trial court.  The Court of Appeals will not substitute its judgment for the judgment of the trial court, unless the trial court was very clearly in error about the sufficiency of the evidence to convict, or has made an error of law.

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