Why Wait Until After July 1, 2021 for your Jury Trial
Consider waiting for a jury trial after July 1, 2021, if charged with a felony in Virginia. You have a constitutional right to a jury trial to determine guilt beyond a reasonable doubt. Virginia defendants often waive jury trials due to perceived risks, even if it’s not in their best interest.
The new law allows defendants to choose jury or judge sentencing starting July 1, 2021, significantly reducing sentencing risks. The new law changes the Virginia Code Section 19.2-925.
Does the Judge or Jury Decide the Sentence in a Trial in Virginia?
Currently, you have the right to a jury of 12 peers to decide whether you are guilty or not guilty. To be found guilty, all 12 people will have to agree that you have committed the crime beyond a reasonable doubt. However, if they all agree you are guilty, you will be subjected to the statutory punishment that those jurors impose.
To understand the problem fully, you will need a bit of background to how the criminal justice system in Virginia currently works. When you are charged with a felony, typically you will first have a preliminary hearing date in General District Court. General District Court can hear misdemeanor trials but not felony trials.
Therefore, when charged with a felony, the preliminary hearing is an opportunity to negotiate a plea agreement, gather information and potential evidence for the case, and to have the court hear enough evidence to decide whether there is probable cause for the case to be certified to Circuit Court for trial.
Once the case is brought before the Circuit Court, an accused will have to decide whether to plea, waive a jury trial in favor of a judge alone to decide the case (commonly known as a bench trial), or to request a jury trial.
Does the Defendant, Prosecution, or Judge Determine a Bench Trial or Jury Trial?
Currently, even if the defendant would prefer a bench trial, the judge or the prosecution can request a jury. If guilty, judges sentence within guidelines, while juries have broader sentencing discretion.
In short, the jury has free reign to choose any sentence, as long as it falls within the statutory range of punishment.
The Virginia Sentencing Guidelines (“VSG”) are a tool created to help judges know how judges have sentenced people in similar circumstances in the past. The guidelines consider the type of crime, past criminal record, aggravating circumstances. Example: whether a weapon was used or the extent of the injury to the victim, whether there are multiple offenses, and other variables depending on the offense.
These guidelines give attorneys a good idea of what type of punishment the accused is facing if they are found guilty and helps guide negotiations for a plea agreement. While not binding, sentencing guidelines assist judges and attorneys in determining appropriate punishments.
The VSG also are incredibly important for an individual accused of a crime. By example, “Sam” faces charges for possessing 4 grams of individually packaged cocaine, with no prior criminal history. The Code of Virginia 18.2-248(C) states that, if convicted, the punishment for this crime is five (5) years to forty (40) years of incarceration and up to a $500,000.00 fine. None of which is mandatory so the court can suspend part or all the sentence. The VSG recommends an active sentence of 7-16 months, with a midpoint of 1 year 4 months. This is a huge difference in potential jail time and must be considered very carefully.
Example: Jury vs. Judicial Sentencing
In this scenario, “Sam” must decide whether to have a jury listen to the case or a judge. If “Sam” elects to have a jury hear the case, to improve the chances of acquittal. For example, then if found guilty the jury MUST sentence “Sam” to a term of incarceration between five (5) years and forty (40) years. The jury will never hear about the sentencing guidelines.
Now the judge, in fact, must do the final sentencing order. And does see the guidelines and can suspend some or all of the prison time the jury announced. But in practice, judges rarely change the punishment announced by the jury. On the other hand, “Sam” can elect to waive the right to jury and theoretically decrease the odds of an acquittal but have far less risk at sentencing in front of a judge who will more likely than not, follow the VSG and sentence to under one (1) year, four (4) months.
The Stakes of Jury Trials
This is to illustrate why there are so few jury trials in Virginia. It simply too risky for most people. Even if a person believes they are not guilty and a jury would agree, it is very difficult to make the decision to risk this much time incarcerated to exercise your right to a trial by jury.
Accused Will Choose After July 1st
The good news is starting July 1, 2021, defendants can choose jury or judge sentencing. No longer will the decision to elect a jury or judge be guided by the fear of the statutory ranges verses the more manageable VSG.
Now “Sam”, can now choose a jury trial to determine guilt and still benefit from sentencing guidelines if found guilty. This monumental change in Virginia law. And is extraordinary and important to consider with only about 6 months until it is available choice. For more information, contact Battlefield Law Group today.