New Criminal Procedure Laws in Virginia

New Criminal Procedure Laws in Virginia

New Criminal Procedure Laws in Virginia

As of July 2020, there have been several changes to Virginia legislation regarding criminal law that may affect the rights of crime victims and anyone standing trial for a criminal charge. Many people, including victims of crimes and their loved ones, have questions about what these new laws may mean. It’s important to know your rights and understand how these laws may affect you or your loved ones, so we’ve provided a brief overview of the changes.

New Discovery Rules for Trials

Discovery is an early process in any kind of civil or criminal trial. In a criminal trial, both the prosecutor and the defense attorney exchange information at this juncture. They may request documents, evidence, or depositions of witnesses and other involved parties from each other. There are many rules regarding discovery that are too numerous to list here, so we’ll stick to the new changes.

Virginia is one of only thirteen states that doesn’t have some form of “open discovery” law. These statutes generally require prosecutors give most or all of what they have to defense attorneys to allow both sides to build a case. The new legislation affecting residents of Virginia changes previous legislation that limited what a prosecutor had to turn over in discovery, although it does not reach the level of “open discovery.” However, it does say that the prosecutor’s office now must provide defense attorneys with copies of police reports, witness statements, and witness lists in felony cases brought in Circuit Courts in the state. Additionally, defense attorneys are required to provide prosecutors with a list of defense witnesses.

Jury Selection

Jury selection is a complicated process, in which attorneys for both parties often argue for or against potential jurors on various grounds. In general, attorneys will ask jurors questions to determine if they can be fair and impartial. This process is called “voir dire,” and it can take several days (occasionally even longer). Sometimes, people who have never been involved with a trial before are shocked at how much time is spent simply selecting a jury!

The new legislation says that attorneys on either side can now tell jurors in criminal cases about the potential punishment range for the crime at issue in the case, in order to help determine if a potential juror can be impartial. For example, someone with strong feelings about the death penalty may not be able to be impartial if sitting on a jury for such a case.

New Rules About Juveniles Tried As Adults

In most cases, juveniles are not tried and convicted as adults for felony charges, but on rare occasons, this does happen. Under new legislation, judges are no longer required to impose mandatory minimum punishments in these cases, and may suspend a portion of the sentence if they see fit. (Mandatory minimum punishments may normally apply to certain drug crimes and violent felonies.) Additionally, the age to try a juvenile as an adult for murder or violent crimes in Circuit Court has been raised from 14 to 16. This will probably result in fewer 14- and 15-year-olds being tried as adults in the state.

Sentence Reduction for Cooperation

New legislation will now permit a convicted person’s sentence to be reduced by a court, in the event that the court determines this person provided “substantial assistance” to the Commonwealth in investigating or prosecuting another person for certain offenses. 

It’s important to understand that this now applies to post-conviction sentence reductions. Previously, cooperation with law enforcement was only useful before the defendant had been convicted. Now they may, in some cases, be able to make a deal for a reduced sentence after being convicted. However, the information they provide to police will need to be highly useful in investigating or prosecuting another person. This law is designed to target “jailhouse snitches”—people in prison who may have heard or learned something about a crime from another inmate.

This statute also restricts the crimes that can be reduced after sentencing to drug and violent crimes, so unfortunately this may mean that some violent offenders may be released early.

Writ of Actual Innocence

This new law means that a person convicted of a crime can apply for a “writ of actual innocence” if new evidence comes to light supporting the idea that they are actually innocent. In this case, only a “preponderance of evidence” is necessary. The old legislation required “clear and convincing evidence” that “no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt.” A “preponderance of evidence” simply means it’s more likely than not that the person is innocent. 

Writs of actual innocence should be filed in the Court of Appeals. However they may be referred to a local Circuit Court for fact-finding. They can also be filed regardless of how the defendant pled in court (guilty or not guilty). The overall effect of this legislation is that the Court of Appeals will consider more of these cases and may grant more writs of actual innocence in the future.

Immigration Status

Under new legislation, law enforcement is not allowed to ask about a person’s citizenship when they’re taken into custody at a jail for any misdemeanor or traffic offense. Regardless of your immigration status or the circumstances of your arrest, it’s important to remember that you have the right to remain silent when arrested. You do not have to answer any questions until you’ve had the opportunity to speak with an attorney.

Presumption Against Bail

Sometimes people who have been arrested for serious crimes like murder are not granted bail because they are considered a potential risk to the community. However, they may petition to receive bail while waiting for a hearing in their case. Under previous laws, if this appeal was granted, the defendant couldn’t be released on bail without the Commonwealth’s Attorney’s office being notified. In many cases, this allowed the victim’s family some warning if they believed the defendant was a threat to them. Under the new legislation, the defendant can be released without the Commonwealth’s Attorney’s office being notified.


For the most part, Virginia hasn’t had discretionary parole for felonies since 1995. The latest legislation reinstates parole for felonies in certain cases, however. Under prior legislation, those convicted of felonies were required to serve at least 85 percent of their sentences, with the option to earn “good-time credits” toward an early release after that milestone was completed. 

With the new laws, people who were convicted between 1995 and 2000 and are still serving lengthy sentences may now be eligible for parole. Additionally, juveniles who were tried and convicted as adults for felonies will be eligible for parole after twenty years (even if the crime was murder). It’s important to keep in mind that just because someone is eligible for parole does not necessarily mean they will receive it. The Virginia Parole Board oversees these decisions.

Police Interviews and Interrogations

There are also new rules regarding how law enforcement may interrogate anyone currently in their custody in a jail. This legislation now requires police to make an audiovisual recording of any interrogation that happens in a “place of detention” (typically a jail). If the police fail to provide such a recording to the prosecutor, their statements about what was said in the interrogation may still be used as evidence in court. However, the court or jury may consider the lack of a recording when deciding how much to depend on that evidence.

Also, there are new rules about interrogations of minors. If a minor is arrested, law enforcement is required to contact their parent or legal guardian prior to conducting any custodial interrogation (although certain exceptions may apply).

Unrestorably Incompetent Defendants

This refers to a situation in which the defendant is deemed unfit to stand trial due to a severe and irreversible medical condition rendering them incompetent. Under previous legislation, this did not apply until the defendant had undergone restorative treatment appropriate for their condition. Now, they may be declared “unrestorably incompetent” if medical experts can determine that treatment will not restore competence, based on prior medical or educational records that support that determination.

Deferral and Dismissal for Persons with Intellectual Disability or Autism

Due to new legislation, a court may defer a finding of guilt and dismiss a criminal case if the defendant has an intellectual disability or autism, and it can be determined that this disability led to their actions. For example, sometimes criminals will take advantage of a person with an intellectual disability, convincing them to do things that a person without such a disability would easily recognize as wrong. If this is shown to be the case, the disabled person’s criminal case may be dismissed. Note that this does not apply to violent crimes.

In general, criminal codes are complicated and may be difficult for the layperson to interpret. If you have questions about how the new criminal codes affect you or a loved one, a Criminal Defense Attorney in Virginia can help you to resolve them. Please contact us for a free consultation.