3.3 PRELIMINARY HEARING
3.301 No Right After Indictment. Section 19.2-218 of the Virginia Code provides that an accused who is arrested is entitled to a preliminary hearing and that "no indictment shall be returned . . . prior to such hearing" unless the accused waives the preliminary hearing in writing. Once an indictment is returned, the usual procedure is the issuance of a capias pursuant to which the indicted person is arrested. 10 This arrest, however, does not trigger the right to a preliminary hearing because the Virginia Supreme Court has interpreted section 19.2-218 to apply only when the arrest precedes indictment. 11
3.302 Multiple Charges. Section 19.2-218 also has limited application to cases involving multiple charges. In Waye v. Commonwealth, 12 the defendant was arrested on a warrant charging first-degree murder. He had a preliminary hearing on that charge, but the Commonwealth subsequently obtained indictments charging both first-degree and capital murder. The Virginia Supreme Court held that because the defendant had not been arrested on the capital murder charge, he had no right to a preliminary hearing on the capital charge. In Seibert v. Commonwealth, 13 the Court of Appeals held that the defendant was not entitled to a preliminary hearing when he "was directly indicted for charges distinct from those on which he was arrested but which arose out of the same course of events." Armel v. Commonwealth 14 held that when a nolle prosequi was entered at the preliminary hearing, "the slate was wiped clean, and the situation was the same as if the Commonwealth
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had chosen to make no charge. . . . Therefore, direct indictment of an accused not then arrested for such offense is neither manipulative nor a denial of any statutory right to which the defendant was entitled."
3.303 Testimony of Child Victims and Witnesses. Section 18.2-67.9 of the Virginia Code provides for the testimony of child victims and witnesses by two-way closed-circuit television in any criminal proceeding, including a preliminary hearing, that involves (i) an alleged offense against a child and relates to a violation of the laws pertaining to kidnapping, 15 criminal sexual assault, 16 or family offenses pursuant to article 4 of chapter 8 of title 18.2 17 or (ii) an alleged murder of a person of any age. Section 18.2-67.9 applies to a victim who was 14 years of age or under at the time of the alleged offense and who is 16 or under at the time of the trial and to a witness who is 14 years of age or...
