A GUIDE TO THE CRIMINAL TRIAL PROCESS IN WEST VIRGINIA

         The Criminal Trial Process can be confusing.  Please use this guide for a better understanding of what to expect if you or someone you know has been charged with a crime in West Virginia.

         If you have been arrested and charged with a misdemeanor or felony offense, it is important that you retain an experienced criminal defense lawyer as soon as possible.  There are a number of steps in the criminal process that necessitate attorney representation:

•  Arrest/Booking:  At this stage in the process you are likely confused and unaware of what is happening to you.  While it is likely you have been Mirandized, it is just as likely that you did not fully comprehend each of the rights that were read to you.  The best practice is to remain silent and ask for your attorney or that an attorney be appointed to represent you.  As part of the arrest, the arresting officer will transport you for “booking,” which is the taking of your information, photographs and fingerprints. 

•  Arraignment:  The arraignment is the first opportunity your attorney has to assist you after you have been charged with a crime.  While it is often difficult to secure an attorney prior to arraignment without an attorney already on retainer, it is important that an attorney represent you at this stage if at all possible.  The arraignment is when your bond will be set by the Magistrate and is an opportunity for your attorney to make arguments to the Magistrate for a lower bond amount than would normally be given should you appear at the arraignment without counsel.  This is your attorney’s opportunity to keep you from being transported to the regional jail for holding until an Initial Hearing (misdemeanor) or Preliminary Hearing (felony) can be heard by a Magistrate.

• Initial Hearing:  If you have been charged with a misdemeanor, the next stage of the process is what is referred to as the Initial Hearing.  The Initial Hearing is the first opportunity for you, your attorney, and the prosecuting attorney (and often times the arresting officer) to each meet and discuss the charges against you and negotiating a plea agreement if it is in your best interest and you desire to do so.  By the time the Initial Hearing takes place, your attorney has likely requested and received discovery from the prosecuting attorney and discussed with you the merits of any defenses you may have and the strength of the evidence against you.  Should your attorney negotiate a plea agreement at this hearing that you accept, the agreement may be presented to the Magistrate for acceptance and sentencing at that time.  It is important that you are represented at the Initial Hearing, as an experienced criminal defense attorney can negotiate a plea agreement that likely would be unattainable should you represent yourself.  If a plea agreement is not in your best interest or you do not desire to negotiate a plea, the Magistrate will set your case for trial at this time.

• Preliminary Hearing:  If you have been charged with a felony, the next stage of the process is what is referred to as the Preliminary Hearing.  The purpose of the Preliminary Hearing is so that the Magistrate may determine if there is probable cause to believe that a crime has been committed and that you are the person that committed the crime with which you have been charged.  The prosecuting attorney must prove both of these elements by putting on evidence, usually in the form of testimony from the arresting officer, the alleged victim, and any witnesses to the alleged acts.  However, your attorney is permitted question any witness that takes the stand.  It is imperative that an attorney represent you at the Preliminary Hearing, as it is possible that your attorney may show the Magistrate that the prosecuting attorney has failed to establish probable cause.  An experienced felony criminal defense attorney will also use this opportunity to question witnesses under oath to determine what knowledge they have of the alleged crime and what any testimony may be presented at Trial.  If the Magistrate finds that the State has established probable cause, the case is then bound over to the Circuit Court for presentment to the Grand Jury and Arraignment.

•  Grand Jury/Arraignment: After your case has been bound over to the Circuit Court, it is presented to the Grand Jury by the prosecuting attorney, which based on the testimony and evidence offered by the prosecuting attorney, will issue an indictment.  Neither you nor your attorney are permitted to be present during the presentment to the Grand Jury.  After the indictment, you will appear before the Circuit Court Judge for a second Arraignment where you are read your indictment, you enter a plea, a trial is scheduled, discovery deadlines are set, and if not previously set by a Magistrate, your bond is set.  Your attorney may also make a motion for discovery at this time. 

• Trial of Misdemeanor Offenses: Trial of a misdemeanor offense is had before the Magistrate you appeared before at the Initial Hearing.  Your attorney will assist you in making the important decision between a bench trial, where your case will be heard and decided by only the Magistrate, or a jury trial, where your case will be decided by a jury.  Generally, criminal offenses are tried before a jury.  Being represented by an attorney is important in trial preparation and strategy, as well as the filing of pretrial motions.  However, an experienced criminal defense attorney is essential for effective and persuasive jury selection, opening statement, cross-examination of witnesses, presentation of evidence, closing argument, and preservation of your rights during the course of the trial.  

• Trial of Felony Offenses:  Trial of felony offenses are had before the Circuit Court Judge you appeared before at the Circuit Court Arraignment.  Being represented by an attorney is important in trial preparation and strategy, as well as the filing of pretrial motions.  However, an experienced criminal defense attorney is essential for effective and persuasive jury selection, opening statement, cross-examination of witnesses, presentation of evidence, closing argument, and preservation of your rights during the course of the trial.