West Virginia Criminal Trial Process: A Complete Step-by-Step Guide
By J. Brandon Shumaker & J. Tyler Slavey · Slavey & Shumaker PLLC · Morgantown, WV Criminal Defense Attorneys
Table of Contents
- Your Constitutional Rights After Arrest
- Arrest and Booking
- Initial Appearance and Arraignment
- Bail and Bond in West Virginia
- Initial Hearing (Misdemeanor)
- Preliminary Hearing (Felony)
- Grand Jury and Indictment
- Circuit Court Arraignment (Felony)
- Discovery
- Pretrial Motions
- Plea Agreements
- Trial Misdemeanor and Felony
- Sentencing and Alternatives
- Appeal
- Choosing a Morgantown Criminal Defense Attorney
- Frequently Asked Questions
1. Your Constitutional Rights After Arrest
Before examining the procedural steps, it is essential to understand the rights that protect you at every stage of a West Virginia criminal case. These rights exist under both the United States Constitution and the West Virginia Constitution, Article III.
Right to Remain Silent
Fifth Amendment (U.S.) and W. Va. Const. Art. III, § 5. You are not required to answer questions from law enforcement. Exercise this right immediately and completely.
Right to Counsel
Sixth Amendment (U.S.) and W. Va. Const. Art. III, § 14. You have the right to an attorney at all critical stages. If you cannot afford one, the court will appoint counsel.
Right to a Speedy Trial
Sixth Amendment (U.S.) and W. Va. Const. Art. III, § 14. WV Code § 62-3-21 provides that after three regular terms of court pass following indictment without trial, the charge must be dismissed.
Presumption of Innocence
The prosecution bears the burden of proving every element of the charged offense beyond a reasonable doubt. You are not required to prove your innocence.
Right Against Unreasonable Search
Fourth Amendment (U.S.) and W. Va. Const. Art. III, § 6. Evidence obtained through an unlawful search or seizure may be suppressed and excluded from use against you.
Right to Jury Trial
Sixth Amendment (U.S.) and W. Va. Const. Art. III, § 14. For offenses above a certain level, you have the right to have your guilt or innocence decided by a jury of your peers.
2. Arrest and Booking
A criminal case in West Virginia typically begins in one of three ways: arrest pursuant to a warrant, warrantless arrest based on probable cause, or citation or summons for certain lower-level offenses. Under West Virginia Rule of Criminal Procedure 4, a warrant may be issued upon the filing of a criminal complaint establishing probable cause to believe that an offense has been committed and that the named individual committed it.
Miranda Warnings
Following a custodial arrest, the arresting officer is required to advise you of your Miranda rights under the standard established in Miranda v. Arizona, 384 U.S. 436 (1966): the right to remain silent, that anything you say can be used against you, the right to an attorney, and that an attorney will be appointed if you cannot afford one. If you are subjected to custodial interrogation without being advised of these rights, any statements obtained may be suppressed.
Booking
After arrest, the officer transports you for booking the administrative process of recording your personal information, taking photographs (mugshots), and collecting fingerprints. Fingerprint data is submitted to state and federal law enforcement databases. Booking occurs at the arresting law enforcement agency or, in many Monongalia County cases, at the Monongalia County Sheriff’s Office.
During booking you will be asked basic identifying questions name, date of birth, address. You are required to provide accurate identifying information. You are not required to answer any questions about the alleged offense. State clearly and calmly: “I am invoking my right to remain silent and I am requesting an attorney.” Then say nothing further about the alleged offense.
3. Initial Appearance and Arraignment
Under West Virginia Rule of Criminal Procedure for Magistrate Courts, Rule 5, a person who has been arrested must be brought before a magistrate without unnecessary delay for an initial appearance. At this appearance the magistrate must:
- Inform you of the charge against you
- Advise you of your right to retain counsel or have counsel appointed
- Advise you of your right to a preliminary examination (for felony charges)
- Set bail or conditions of release
This is the first opportunity for an attorney to argue on your behalf, particularly regarding the amount and conditions of bail. An attorney appearing at the initial appearance can make the difference between release and remaining in custody while your case proceeds.
4. Bail and Bond in West Virginia
Bail is the financial or other security the court sets to ensure your appearance at future court proceedings. Under W. Va. Code § 62-1C-1a, pretrial release is governed by a system that considers the nature of the offense, the weight of the evidence, the defendant’s history and ties to the community, and the danger posed to the community.
| Type of Release | What It Means |
|---|---|
| Personal Recognizance (PR) | Released on your own promise to appear. No cash required. Available for lower-level offenses with strong community ties. |
| Cash or Surety Bond | A set amount must be posted with the court. A bail bondsman may post a surety bond for a non-refundable fee, typically 10% of the bond amount. |
| Property Bond | Real property is pledged as security for your appearance. |
| Conditions of Release | May include electronic monitoring, no-contact orders, travel restrictions, regular check-ins, or drug testing. |
For more detailed information about bail and bond in West Virginia, see our dedicated page on Bail and Bond in West Virginia.
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5. Initial Hearing Misdemeanor Cases
If you have been charged with a misdemeanor offense, the next step after your initial appearance is the Initial Hearing in Magistrate Court. Under the West Virginia Rules of Criminal Procedure for Magistrate Courts, this hearing serves as the primary forum for pre-trial resolution of misdemeanor cases.
By the time of the Initial Hearing, your attorney will typically have:
- Requested and reviewed the prosecution’s discovery police reports, body camera footage, witness statements, and any other evidence in the state’s possession
- Assessed the strength of the evidence against you
- Evaluated the viability of any defenses, including potential suppression motions
- Discussed with you the realistic range of outcomes and any plea negotiations
The Initial Hearing is the first opportunity for the defense attorney, the prosecuting attorney, and in many cases the arresting officer to discuss the case. Plea negotiations frequently occur at this stage. If an acceptable plea agreement is reached and you choose to accept it, the magistrate may accept the plea and proceed to sentencing at that hearing.
If a plea agreement is not reached or is not in your interest, the magistrate will set the case for trial. Under WV Magistrate Court Rule 11, you will receive notice of the trial date.
Strategic significance: An experienced criminal defense attorney can achieve outcomes at the Initial Hearing dismissals, amendments to lesser charges, or plea agreements with reduced penalties that would be unavailable or far less favorable if you appeared without representation. The Initial Hearing is frequently where misdemeanor cases are resolved.
6. Preliminary Hearing Felony Cases
If you have been charged with a felony by criminal complaint, you are entitled to a preliminary hearing also called a preliminary examination before a magistrate. The purpose of this hearing is for the magistrate to determine whether there is probable cause to believe that a crime was committed and that you are the person who committed it.
Under West Virginia Rule of Criminal Procedure 5(c), the preliminary hearing must be held:
- Within 10 days of the initial appearance if you are in custody
- Within 20 days of the initial appearance if you are not in custody
These time limits may be extended with your consent or by the circuit court in extraordinary circumstances. The preliminary hearing may be waived but waiver is a strategic decision that should only be made with the advice of counsel.
What happens at the preliminary hearing:
- The prosecution presents evidence typically through the testimony of the arresting officer, the alleged victim, and other witnesses
- Your attorney has the right to cross-examine every witness who testifies
- You may introduce evidence in your own behalf
- If the magistrate finds that the prosecution has not established probable cause, the complaint is dismissed and you are discharged though the state may refile
- If probable cause is found, the case is bound over to the circuit court for grand jury presentment
Why the preliminary hearing is strategically critical: Even when dismissal is unlikely, the preliminary hearing provides your attorney an invaluable opportunity to cross-examine prosecution witnesses under oath locking in their testimony, identifying inconsistencies, and gathering intelligence about what the state’s case will look like at trial. This is information that cannot be obtained any other way before trial. An experienced felony defense attorney will use the preliminary hearing aggressively even when the probable cause standard appears likely to be met.
Note: Under WV Rule 5.1, objections to evidence on the ground that it was unlawfully obtained are not properly raised at the preliminary hearing. Suppression motions must be filed in circuit court. This is one of many reasons why having experienced felony defense counsel at the preliminary hearing is essential improperly raised objections can waive critical rights or create an unfavorable record.
7. Grand Jury and Indictment
After a case is bound over from the Magistrate Court following a preliminary hearing, the prosecuting attorney presents the case to a grand jury in the circuit court. Under W. Va. Code § 62-2-1, felony prosecutions in West Virginia must proceed by presentment or indictment.
Under W. Va. Code § 52-2-8, the grand jury in West Virginia consists of not fewer than 12 nor more than 16 persons. To return an indictment, at least 12 grand jurors must concur that probable cause exists to charge the defendant with the offense.
Key procedural facts about the WV grand jury:
- Grand jury proceedings are secret neither you nor your attorney may be present
- Only the prosecution presents evidence; the grand jury hears only one side
- The standard of proof is probable cause far lower than the beyond-a-reasonable-doubt standard required for conviction at trial
- An indictment does not mean you are guilty; it means the grand jury found sufficient probable cause to require you to stand trial
- Under W. Va. Code § 62-2-12 (the “Two-Term Rule”), a person held in custody who is not indicted before the end of the second term of court at which they are held to answer must be discharged from imprisonment though the prosecution may continue pursuing indictment. This right to discharge does not apply where the court finds that material witnesses for the state were enticed or kept away, or were prevented from attending by sickness or inevitable accident.
If the grand jury votes to indict, the indictment is returned to the circuit court and the case proceeds to arraignment. If the grand jury declines to indict (a “no bill”), the charges are dismissed at that time, though the prosecution may re-present the case to a subsequent grand jury.
8. Circuit Court Arraignment Felony Cases
Following indictment, you appear before the circuit court judge for arraignment. Under West Virginia Rule of Criminal Procedure 10, the arraignment must be held without unnecessary delay after indictment. At arraignment:
- The indictment is read to you (or reading is waived by you)
- You enter a plea guilty, not guilty, or nolo contendere (no contest)
- The circuit court judge sets a trial date
- Discovery deadlines are established
- Bond is reviewed the circuit court may modify any bond previously set by the magistrate
- Dates for pretrial motions and status conferences are scheduled
In virtually every case where the defendant intends to contest the charges, the appropriate plea at arraignment is not guilty. Entering a not guilty plea does not prevent you from later accepting a plea agreement it simply preserves all of your options while your attorney investigates the case, reviews discovery, and evaluates defenses. Under W. Va. Code § 62-3-2, if you refuse to plead, the court will enter a not guilty plea on your behalf and trial will proceed as if you had entered that plea.
9. Discovery What the State Must Disclose
Discovery is the process by which your attorney obtains the evidence the prosecution intends to use against you. In West Virginia, discovery in circuit court criminal cases is governed by Rule 16 of the West Virginia Rules of Criminal Procedure and by West Virginia Trial Court Rule 32.
Upon request, the prosecution is generally required to disclose:
- Any oral or written statements made by the defendant to law enforcement
- The defendant’s prior criminal record
- Documents and tangible objects the prosecution intends to use at trial
- Reports of examinations and scientific tests
- A written summary of any expert witness testimony the prosecution intends to offer
Beyond Rule 16, the prosecution has a constitutional obligation under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny to disclose any exculpatory evidence evidence favorable to the defense that is material to guilt or punishment. Failure to disclose Brady material is a constitutional violation that can result in conviction being overturned on appeal. Identifying and demanding Brady material is one of the first responsibilities of an experienced criminal defense attorney after arraignment.
In misdemeanor cases, discovery in Magistrate Court is governed by Magistrate Court Rule 29, which provides a more limited but still important right of discovery for defendants charged with misdemeanor offenses.
10. Pretrial Motions
Pretrial motions are legal arguments filed with the court before trial that can dramatically affect and in successful cases, end a prosecution. In circuit court, pretrial motions are governed by Rule 12 of the West Virginia Rules of Criminal Procedure. Most defenses and objections that can be raised before trial must be raised by pretrial motion or they may be waived making the pretrial motion phase one of the most consequential in the entire case.
Motion to Suppress Evidence
A motion to suppress asks the court to exclude evidence obtained in violation of the defendant’s constitutional rights typically the Fourth Amendment protection against unreasonable searches and seizures, or the Fifth and Sixth Amendment protections against compelled self-incrimination and denial of the right to counsel. If a suppression motion is granted, the excluded evidence cannot be used by the prosecution at trial. In cases where the suppressed evidence is the core of the prosecution’s case a confession, drug evidence, a weapon a successful suppression motion frequently results in dismissal.
Motion to Dismiss
A motion to dismiss argues that the charge should be terminated entirely because the indictment is legally defective, because the statute of limitations has expired, because the defendant’s speedy trial rights under W. Va. Code § 62-3-21 have been violated, or because the prosecution lacks sufficient evidence to establish probable cause as a matter of law.
Motion for Change of Venue
Under WV Rule of Criminal Procedure 21, a defendant may move to transfer a case to a different county when extensive pretrial publicity makes it impossible to select an impartial jury in the county where the alleged offense occurred.
Motion in Limine
A motion in limine asks the court to rule in advance of trial on the admissibility of specific evidence excluding prejudicial, irrelevant, or otherwise inadmissible material before the jury ever hears it. These motions shape the evidentiary landscape of the trial itself.
Notice of Alibi and Other Affirmative Defenses
Under WV Rule 12.1, a defendant who intends to offer an alibi defense must provide the prosecution with timely written notice of the specific place the defendant claims to have been at the time of the alleged offense and the names and addresses of the alibi witnesses. Failure to provide timely notice can result in preclusion of the alibi defense. Similarly, under Rule 12.2, notice is required for an insanity defense or expert testimony regarding the defendant’s mental condition.
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11. Plea Agreements
The large majority of criminal cases in West Virginia as in every U.S. jurisdiction are resolved through plea agreements rather than trial. A plea agreement is a negotiated resolution between the defense and the prosecuting attorney in which the defendant agrees to plead guilty (or nolo contendere) to one or more charges in exchange for some benefit typically a reduction in charges, a cap on sentencing recommendations, or dismissal of other pending counts.
Plea negotiations are governed by Rule 11 of the West Virginia Rules of Criminal Procedure. Before the court may accept a guilty plea, the judge must conduct a thorough on-the-record colloquy with the defendant establishing that:
- The plea is voluntary and not the result of force, threats, or improper promises
- The defendant understands the nature of the charge and the consequences of the plea
- The defendant understands the constitutional rights being waived, including the right to trial, the right to confront witnesses, and the right against self-incrimination
- There is a factual basis for the plea
12. Trial Misdemeanor and Felony
If no plea agreement is reached or a plea is not in your interest, your case proceeds to trial. The procedures differ somewhat between misdemeanor trials in Magistrate Court and felony trials in Circuit Court.
Misdemeanor Trial Magistrate Court
Misdemeanor trials are conducted before the same magistrate who presided at the Initial Hearing. Under Magistrate Court Rule 17, a defendant charged with a misdemeanor has the right to elect either a bench trial (decided by the magistrate alone) or a jury trial. If you are convicted at the magistrate level, you have the right to appeal for a de novo trial in circuit court under Magistrate Court Rule 20.1 meaning the circuit court tries the case completely from scratch as if the magistrate trial never occurred.
Felony Trial Circuit Court
Felony trials are conducted before a circuit court judge. Under W. Va. Code § 62-3-3, in a felony case a panel of 20 jurors is drawn from the jury pool. The defendant may strike up to 6 jurors from the panel; the prosecution may strike up to 2 jurors, resulting in a 12-person jury. The defendant also has the right to elect a bench trial in lieu of a jury trial.
The Stages of Trial
Prospective jurors are examined by the judge and attorneys to identify bias, prejudice, or other disqualifying conditions. Your attorney may challenge potential jurors for cause (unlimited) or through peremptory challenges (limited in number). Effective voir dire is an art skilled defense attorneys use this opportunity to educate the jury panel on the presumption of innocence and the beyond-a-reasonable-doubt standard, and to identify and remove jurors whose backgrounds or beliefs suggest they cannot be fair.
Both the prosecution and the defense have the opportunity to deliver an opening statement previewing what the evidence will show. The prosecution opens first; the defense may open immediately after or reserve its opening until the start of the defense case. Opening statements are not evidence they are roadmaps. A compelling opening statement frames the narrative the jury will use to interpret every piece of evidence that follows.
The prosecution presents its evidence through witness testimony and exhibits. Your attorney has the right to cross-examine every witness the prosecution calls. Effective cross-examination exposing inconsistencies, biases, gaps in perception, or improper procedure is among the most powerful tools available to a defense attorney. The prosecution bears the entire burden of proof; the defense has no obligation to present any evidence.
After the prosecution rests, your attorney may move for a judgment of acquittal arguing that the prosecution’s evidence, viewed in the light most favorable to the state, is legally insufficient to sustain a conviction. If the court grants this motion, the case is over and you are acquitted without the defense needing to present any evidence. Under WV Rule of Criminal Procedure 29, this motion may also be renewed at the close of all evidence.
The defense may, but is not required to, present evidence and call witnesses. You have the right under the Fifth Amendment not to testify, and the jury cannot be instructed to draw any negative inference from your silence. The decision of whether you should testify is one of the most consequential strategic decisions in a criminal trial; it requires a careful assessment of the specific facts, the strength of the prosecution’s case, and the likely impact of your testimony on the jury. This decision belongs ultimately to you but should only be made after thorough consultation with your attorney.
Both sides present closing arguments summarizing the evidence and arguing for their respective positions. The prosecution argues first, then the defense, and then because the prosecution bears the burden of proof the prosecution has a brief rebuttal. Closing argument is the last opportunity to speak directly to the jury before deliberations. The most effective closing arguments weave the evidence into a compelling narrative that gives the jury not just a reason to acquit, but a framework for explaining their verdict to each other during deliberations.
The judge instructs the jury on the applicable law the elements of the charged offense, the standard of proof, the presumption of innocence, and any applicable defenses. Both sides may propose jury instructions. The jury then retires to deliberate in private. Under West Virginia law, the jury’s verdict in a criminal case must be unanimous all 12 jurors must agree on guilt before a conviction may be entered. If the jury cannot reach a unanimous verdict, the judge declares a mistrial and the prosecution must decide whether to retry the case.
13. Sentencing and Alternatives
If you are convicted whether by jury verdict, bench verdict, or guilty plea the court proceeds to sentencing. In West Virginia, sentencing may occur immediately following conviction in some misdemeanor cases, or at a separate sentencing hearing scheduled after a pre-sentence investigation report (PSI) is prepared in felony and more serious misdemeanor cases.
Standard Sentences
The standard penalties for criminal offenses in West Virginia are set by statute and vary by offense. Misdemeanors carry maximum jail sentences of up to one year in a regional jail; felonies carry sentences ranging from one year to life in a state correctional institution depending on the offense. The distinction between jail (regional facility, misdemeanor) and prison (state correctional institution, felony) matters significantly for the conditions of confinement and collateral consequences.
Sentencing Alternatives Under W. Va. Code § 62-11A-1a
West Virginia law provides the court with significant discretion to impose sentencing alternatives to standard incarceration. Under W. Va. Code § 62-11A-1a, where statutory conditions are met, a defendant may be sentenced to:
- Weekend jail program serving the sentence on weekends or other days off from work
- Work program performing supervised labor for a public agency after an initial period of confinement
- Home incarceration with electronic monitoring serving the sentence confined to the home under W. Va. Code § 62-11B-4
Eligibility for sentencing alternatives under § 62-11A-1a requires that:
- The offense does not carry a mandatory period of confinement by statute
- In circuit court cases, the defendant is not a habitual criminal under §§ 61-11-18 and 61-11-19
- In circuit court cases, the offense is not a felony for which violence or the threat of violence is an element
- Adequate supervision facilities are available
- The alternative sentence best serves the interests of justice
Probation
Under W. Va. Code § 62-12-2, a circuit court may suspend the imposition or execution of a sentence and place a convicted defendant on probation with conditions including home incarceration with electronic monitoring under § 62-11B-4. Probation is not available for all felony offenses; notably, under § 62-12-2, probation is not available for any crime that involved the use or brandishing of a firearm.
Pre-Sentence Investigation Report
In felony cases and many serious misdemeanor cases, the court orders a pre-sentence investigation report (PSI) prepared by a probation officer before sentencing. The PSI examines the defendant’s background, criminal history, family situation, employment, mental health history, and other factors relevant to an appropriate sentence. Your attorney has the right to review the PSI and to file objections to inaccurate information before sentencing. A well-prepared sentencing presentation including the defendant’s own statement, character letters, documentation of rehabilitation efforts, and argument for a lesser sentence or alternative can materially affect the sentence the court imposes.
14. Appeal
A conviction following trial is not necessarily the end of the road. West Virginia provides several avenues for post-conviction review.
Direct Appeal to the West Virginia Supreme Court of Appeals
A defendant convicted in circuit court may appeal to the West Virginia Supreme Court of Appeals. A direct appeal is the immediate challenge to the conviction and sentence based on errors that occurred during the trial including errors in jury instructions, improperly admitted evidence, improper prosecutorial conduct, or insufficient evidence to support the verdict. The notice of appeal must be filed within 30 days of the entry of the final judgment under West Virginia Rule of Appellate Procedure 5.
Critical limitation: Issues that were not properly preserved at trial by timely objection on the record are generally forfeited on direct appeal unless they constitute “plain error.” This is one of the most important reasons why experienced trial counsel matters: an attorney who fails to make the right objections at trial closes the door on appellate arguments that might otherwise have merit.
Appeal from Misdemeanor Conviction in Magistrate Court
Under Magistrate Court Rule 20.1, the nature of the appeal from a misdemeanor conviction depends on how the original trial was conducted.
If you were tried before a magistrate without a jury (bench trial): Your appeal to the circuit court is a trial de novo, meaning a completely fresh trial before a circuit court judge without a jury. The magistrate’s verdict is set aside entirely and the case is retried from scratch. The prosecution must prove its case again, and all defenses are available to you as if the magistrate trial never occurred.
If you were tried before a jury in Magistrate Court: Your appeal to the circuit court is heard on the record rather than by a new trial. The circuit court reviews the record of the magistrate court proceedings for legal error rather than conducting a new evidentiary hearing. This makes the quality of the record created at the magistrate jury trial critically important, including timely objections and a complete transcript.
This distinction has significant strategic implications. A defendant tried by jury in magistrate court who wishes to appeal is limited to what is preserved in the record, while a defendant convicted at a magistrate bench trial receives a full fresh trial in circuit court. The choice of whether to request a jury trial in magistrate court should therefore be made with an understanding of how it affects appellate rights.
Post-Conviction Relief
Beyond direct appeal, defendants may seek post-conviction habeas corpus relief challenging the constitutional validity of their confinement including claims of ineffective assistance of counsel, newly discovered evidence, or constitutional violations not raised on direct appeal.
15. Choosing the Right Morgantown Criminal Defense Attorney
Every stage of the West Virginia criminal process from the initial appearance to sentencing involves decisions that can permanently affect the outcome of your case. The attorney you choose matters profoundly.
- West Virginia-specific procedural experience. The WV Rules of Criminal Procedure, the Magistrate Court rules, the preliminary hearing process, and the specific practices of Monongalia County courts are not generic they require an attorney who practices there regularly.
- Trial readiness. Prosecutors negotiate more favorably with attorneys they know will actually try a case. An attorney whose practice is primarily plea agreements negotiates from a position of weakness. Ask about actual trial verdicts.
- Pretrial motion expertise. Suppression motions, Brady demands, and alibi notices have hard deadlines. Missing them waives critical rights permanently.
- Felony vs. misdemeanor distinction. Felony defense in circuit court is a fundamentally different practice from misdemeanor defense in magistrate court. Confirm that your attorney has experience at the level of court where your case will be tried.
- Early engagement. The earlier you retain counsel, the more options remain available including bail arguments, preliminary hearing strategy, and the full range of pretrial motions.
At Slavey & Shumaker PLLC, our Morgantown criminal defense attorneys represent clients at every stage of the West Virginia criminal process, from the initial appearance through trial and appeal in both Magistrate Court and Monongalia County Circuit Court. Our attorneys are members in good standing of the West Virginia State Bar and bring a combined depth of trial and courtroom experience to every case we handle. We offer free, confidential consultations with no obligation.
16. Frequently Asked Questions
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This guide is provided for general informational purposes only and does not constitute legal advice. Reading this guide does not create an attorney-client relationship. West Virginia laws and court rules are subject to change; readers should verify current provisions. Every case is different. Contact Slavey & Shumaker PLLC for a free consultation about your specific circumstances. Attorney advertising. Prior results do not guarantee a similar outcome.