Double Jeopardy in Virginia: When Does Jeopardy Attach and What Happens After a Nolle Prosequi?

Virginia Double Jeopardy Law | When Jeopardy Attaches | Nolle Prosequi | Virginia Criminal Defense

The Double Jeopardy Clause provides one of the most important protections in criminal law: the government generally cannot prosecute a person twice for the same offense after jeopardy has attached.

But an important question arises in Virginia criminal cases:

When does jeopardy actually attach?

The answer depends upon the type of proceeding. In a traditional jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a bench trial, jeopardy generally attaches when the Commonwealth begins presenting evidence, ordinarily when the first witness is sworn.

This distinction becomes particularly important when the Commonwealth seeks a nolle prosequi, commonly called a “nol pros.” A nolle prosequi terminates the prosecution on the existing charging document, but it does not necessarily prevent the Commonwealth from prosecuting the defendant again.

The critical issue is whether jeopardy had already attached when the nolle prosequi was entered.

This article explains Virginia’s double jeopardy law, when jeopardy attaches, the effect of an acquittal or conviction, and the consequences of a nolle prosequi.

What Is Double Jeopardy in Virginia?

The Double Jeopardy Clause protects a criminal defendant against three principal forms of governmental action:

1. A second prosecution for the same offense after an acquittal;
2. A second prosecution for the same offense after a conviction; and
3. Multiple punishments for the same offense.

The protection comes from both the Fifth Amendment to the United States Constitution and Article I, § 8 of the Virginia Constitution.

The Supreme Court of Virginia has explained that “jeopardy” means the danger of conviction. Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 S.E.2d 709, 710 (1982).

Thus, simply having been charged with a crime does not necessarily mean that jeopardy has attached.

The timing of the proceeding matters.

When Does Jeopardy Attach in Virginia?

Jeopardy in a Jury Trial

In a Virginia jury trial, jeopardy generally attaches when:

1. The defendant is being tried on a valid charging instrument; and

2. The jury has been empaneled and sworn.

The seminal Virginia case is Rosser v. Commonwealth, 159 Va. 1028, 167 S.E. 257 (1933).

In Rosser, the Supreme Court of Virginia explained that when a defendant has been placed on trial before a court of competent jurisdiction, has been arraigned and pleaded, and the jury has been empaneled and sworn, the defendant is in jeopardy.

The Supreme Court later reaffirmed this principle in Martin v. Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991), stating that jeopardy attaches after the jury has been empaneled and sworn.

Practical rule

For a Virginia jury trial:

Jeopardy generally attaches when the jury is empaneled and sworn—not merely when the defendant is arraigned, enters a plea, or appears in court for trial.

This distinction can be extremely important.

For example, if the Commonwealth moves for a nolle prosequi immediately before the jury is sworn, the defendant ordinarily has not yet been placed in jeopardy.

If the jury has already been sworn, however, the analysis changes substantially.

When Does Jeopardy Attach in a Bench Trial?

The rule is different when the defendant waives a jury and proceeds with a trial before the judge.

In a Virginia bench trial, jeopardy attaches when the Commonwealth begins presenting its evidence.

Virginia cases generally describe the point as the time when the first witness is sworn.

In Rosser, the Supreme Court of Virginia explained:

“In a trial before a court without a jury the danger of conviction or jeopardy of an accused begins when the trial has reached the stage where the Commonwealth begins to introduce its testimony.”

Rosser v. Commonwealth, 159 Va. at 1036, 167 S.E. at 259.

The Supreme Court reaffirmed this rule in Martin v. Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991).

The Virginia Court of Appeals has repeatedly applied the same rule. See, e.g., Neff v. Commonwealth, 39 Va. App. 13, 17, 570 S.E.2d 277, 279 (2002).

Practical rule

For a Virginia bench trial:

Jeopardy generally attaches when the first witness is sworn and the Commonwealth begins presenting its evidence.

Merely calling a case for trial, conducting preliminary arguments, or having the defendant enter a plea does not necessarily mean that jeopardy has attached.

What About a Preliminary Hearing?

A preliminary hearing is different from a criminal trial.

Virginia appellate courts have held that jeopardy does not attach to a felony charge merely because the Commonwealth presents evidence at a preliminary hearing.

For example, in Neff v. Commonwealth, the Court of Appeals explained that a preliminary hearing is not the equivalent of a trial for purposes of double jeopardy.

Likewise, in Painter v. Commonwealth, 47 Va. App. 225, 233, 623 S.E.2d 401, 405 (2005), the Court of Appeals explained that dismissal of a felony warrant at a preliminary hearing for lack of probable cause does not constitute an acquittal of the felony.

This means that a defendant generally cannot argue that a failed felony preliminary hearing placed the defendant in jeopardy and therefore bars a later prosecution.

Important distinction

A preliminary hearing asks whether there is probable cause to believe that the defendant committed the offense.

A criminal trial determines whether the Commonwealth has proven the defendant’s guilt beyond a reasonable doubt.

Those are fundamentally different proceedings.

What Happens When a Defendant Is Acquitted?

An acquittal generally bars a subsequent prosecution for the same offense.

Virginia codifies this protection in Code § 19.2-292, which provides that a person acquitted on the facts and merits at a former trial may plead that acquittal as a bar to a second prosecution for the same offense.

The constitutional protection is even broader in certain circumstances.

An acquittal is not limited to a formal jury verdict stating “not guilty.” A ruling that actually resolves factual elements of the offense in the defendant’s favor may constitute an acquittal for double jeopardy purposes.

The Supreme Court of Virginia addressed this principle in Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 S.E.2d 709, 710 (1982).

The important question is whether the ruling represents a determination of the defendant’s factual guilt or innocence rather than merely a procedural termination of the case.

What Happens After a Conviction?

A second prosecution for the same offense following a conviction is likewise generally prohibited by the Double Jeopardy Clause.

The constitutional protection applies even when the defendant has not received a lengthy sentence or has not completed the sentence imposed.

The prohibition against double jeopardy is concerned with the government’s ability to subject a defendant to successive criminal prosecutions for the same offense.

Virginia’s statutory former-jeopardy provisions also recognize these protections.

What Is a Nolle Prosequi in Virginia?

A nolle prosequi is a formal discontinuance of a criminal prosecution.

Virginia Code § 19.2-265.3 provides:

“Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.”

Thus, a prosecutor does not have an unlimited unilateral right to terminate a criminal case through a nolle prosequi.

The Commonwealth must request the nolle prosequi, and the court must determine whether the statutory requirement of good cause has been satisfied.

The Supreme Court of Virginia addressed this statutory requirement in Roe v. Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526, 529 (2006).

Does a Nolle Prosequi Mean the Defendant Was Acquitted?

Generally, no.

This is one of the most important points in Virginia criminal procedure.

A nolle prosequi ordinarily does not constitute an adjudication that the defendant is innocent.

Instead, Virginia courts have described a nolle prosequi as a discontinuance that terminates the prosecution under the particular indictment or warrant.

In Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977), the Supreme Court of Virginia explained that a nolle prosequi is a discontinuance that discharges the accused from liability on the indictment to which the nolle prosequi is entered.

The Commonwealth may generally initiate a new prosecution for the same offense, subject to constitutional, statutory, and procedural limitations.

Does a Nolle Prosequi Bar a Later Prosecution?

The answer depends heavily upon when the nolle prosequi occurs.

Nolle Prosequi Before Jeopardy Attaches

When a nolle prosequi is entered before jeopardy attaches, it generally does not prevent the Commonwealth from prosecuting the defendant again.

This principle was recognized by the Virginia Court of Appeals in Cantrell v. Commonwealth, 7 Va. App. 269, 281, 373 S.E.2d 328, 333 (1988).

The same principle was applied in Cummings v. Commonwealth, 24 Va. App. 248, 253-54, 481 S.E.2d 493, 496 (1997).

In Cummings, the Commonwealth obtained a nolle prosequi before witnesses were sworn and before evidence was introduced. The Court of Appeals held that jeopardy had not attached and therefore the subsequent prosecution was not barred by double jeopardy.

Example

Assume:

• Defendant is indicted for malicious wounding.
• Defendant appears in circuit court.
• Defendant pleads not guilty.
• The Commonwealth asks for a nolle prosequi before the jury is empaneled and sworn.
• The court grants the motion.

Because jeopardy had not attached, the Commonwealth generally may later seek a new indictment and prosecute the defendant for the same offense.

The nolle prosequi terminated the original charging instrument, but it did not constitute an acquittal.

Nolle Prosequi After Jeopardy Has Attached

The analysis changes dramatically once jeopardy has attached.

In Rosser v. Commonwealth, the Commonwealth entered a nolle prosequi after a bench trial had already begun and the Commonwealth had presented part of its evidence.

The Supreme Court of Virginia held that jeopardy had attached.

The Court explained that after jeopardy attaches, the defendant possesses a right to have the trial proceed to a verdict or judgment unless a legally sufficient reason exists for terminating the proceeding.

The Court concluded that a nolle prosequi entered without the defendant’s consent after jeopardy attached operated as an acquittal unless there was a manifest and urgent necessity for terminating the trial.

Rosser v. Commonwealth, 159 Va. at 1032-37, 167 S.E. at 257-60.

What Is “Manifest Necessity”?

Once jeopardy has attached, the Commonwealth cannot simply terminate the trial whenever it becomes inconvenient and then start over.

The law recognizes, however, that certain circumstances may make continuation of the trial impossible or fundamentally unfair.

This concept is commonly referred to as manifest necessity.

For example, a genuinely deadlocked jury may constitute manifest necessity for declaring a mistrial.

The Supreme Court of Virginia addressed this situation in Miller v. Commonwealth, 217 Va. 929, 933, 234 S.E.2d 269, 272 (1977).

In Miller, the jury was unable to reach a verdict and was discharged. The Supreme Court held that the resulting mistrial did not bar a subsequent prosecution because a genuinely deadlocked jury presented a classic circumstance of manifest necessity.

The Virginia Court of Appeals has likewise recognized that a jury’s inability to reach a verdict may justify a mistrial without violating double jeopardy. See Page v. Commonwealth, 2003 Va. App. LEXIS 220.

Why the Defendant’s Consent Can Matter

A defendant’s position concerning termination of a trial can be extremely important.

Generally, when a defendant consents to a mistrial or termination of the proceeding, the defendant may have waived the protection against reprosecution that otherwise would apply.

By contrast, if the Commonwealth seeks to terminate a trial after jeopardy has attached over the defendant’s objection, the court must carefully consider whether the termination is justified by manifest necessity.

This is why defense counsel should pay close attention to the precise procedural posture of any Commonwealth motion to nolle prosequi.

A defendant should not assume that a nolle prosequi is simply a routine procedural event.

The timing can have constitutional consequences.

Virginia Code § 19.2-265.6 and Dismissal of Criminal Charges

Virginia has an additional statutory provision that is particularly important when analyzing dismissal of criminal charges.

Code § 19.2-265.6(B) provides:

“No dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice.”

This provision is extremely important because it provides a statutory framework for determining whether a dismissal prevents a later prosecution.

The statute creates two principal circumstances in which a dismissal can bar later prosecution:

1. Jeopardy attached at the earlier proceeding; or
2. The dismissal order expressly states that the dismissal is with prejudice.

Accordingly, defense counsel should carefully examine the actual language of the court’s dismissal order.

A dismissal is not necessarily equivalent to an acquittal, and the characterization of the order matters.

Nolle Prosequi Versus Dismissal With Prejudice

A nolle prosequi and a dismissal with prejudice should not automatically be treated as the same thing.

A nolle prosequi generally terminates the particular charging instrument and allows the Commonwealth, subject to applicable legal restrictions, to initiate a new prosecution.

A dismissal with prejudice, by contrast, expressly prevents the Commonwealth from prosecuting the charge again.

Virginia Code § 19.2-265.6 expressly recognizes this distinction.

The Virginia Court of Appeals has also emphasized that courts must examine the substance and timing of a dismissal rather than simply rely on the label used by the trial court.

See Roe v. Commonwealth, 271 Va. 453, 628 S.E.2d 526 (2006).

A Nolle Prosequi Can Have Other Consequences

Even when a nolle prosequi does not create a double-jeopardy bar, it does not necessarily mean that the Commonwealth has no constitutional or statutory problems.

For example, repeated nolle prosequis can raise speedy-trial issues.

The Virginia Court of Appeals has recognized that a nolle prosequi can potentially contribute to prejudicial delay implicating the defendant’s speedy-trial rights.

See Duggins v. Commonwealth, 59 Va. App. 785, 792, 722 S.E.2d 629, 632 (2012); Griffin v. Commonwealth, 2024 Va. App. LEXIS 122.

The fact that jeopardy did not attach does not automatically mean that the Commonwealth has unlimited authority to delay prosecution.

Double jeopardy and speedy trial are separate constitutional protections.

A Nolle Prosequi Also Affects the Charging Instrument

Virginia courts have described the effect of a nolle prosequi as essentially wiping the slate clean as to the original charging document.

In Arnold v. Commonwealth, 18 Va. App. 218, 221-22, 443 S.E.2d 183, 185 (1994), aff’d en banc, 19 Va. App. 143, 450 S.E.2d 161 (1994), the Court of Appeals explained that a nolle prosequi terminates the original indictment and underlying warrant.

The Commonwealth therefore must use the appropriate procedure to initiate a new prosecution.

As Miller explained, a new charging document is required when the Commonwealth seeks to proceed again after a nolle prosequi.

Does a Nolle Prosequi Reset the Speedy-Trial Clock?

Generally, a nolle prosequi can have a significant effect on the statutory speedy-trial calculation under Code § 19.2-243 because the Commonwealth is proceeding under a new charging instrument.

Virginia appellate courts have recognized that, for purposes of the statutory speedy-trial calculation, the period is generally calculated from the new indictment after the original charge has been nolle prossed.

See Arnold v. Commonwealth, 18 Va. App. 218, 221-24, 443 S.E.2d 183, 185-86 (1994).

But that does not necessarily eliminate constitutional speedy-trial concerns.

The constitutional speedy-trial analysis is different and can take into account delay associated with the earlier prosecution.

Thus, defense counsel should analyze statutory speedy trial and constitutional speedy trial separately.

Common Virginia Double Jeopardy Scenarios

Scenario 1: Nolle Prosequi Before Jury Is Sworn

The Commonwealth asks for a nolle prosequi after the defendant has pleaded not guilty but before the jury is empaneled and sworn.

Result: Jeopardy generally has not attached. A later prosecution is ordinarily permissible.

Scenario 2: Nolle Prosequi After Jury Is Sworn

The jury has been empaneled and sworn. The Commonwealth then asks for a nolle prosequi over the defendant’s objection.

Result: Jeopardy has attached. The court must consider whether there is a legally sufficient reason, such as manifest necessity, for terminating the prosecution without a verdict.

Scenario 3: Nolle Prosequi During a Bench Trial

The defendant waived a jury. The Commonwealth swears its first witness and begins presenting evidence. The Commonwealth then seeks a nolle prosequi.

Result: Jeopardy has attached.

This is the situation addressed directly by Rosser v. Commonwealth.

Scenario 4: Nolle Prosequi Before Any Witness Is Sworn

The defendant has waived a jury, but the Commonwealth has not yet sworn a witness or introduced evidence.

The Commonwealth moves for a nolle prosequi.

Result: Jeopardy generally has not attached.

See Martin v. Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991); Cummings v. Commonwealth, 24 Va. App. 248, 481 S.E.2d 493 (1997).

Scenario 5: Jury Deadlock

The jury is properly sworn and begins deliberating but cannot reach a unanimous verdict.

The judge declares a mistrial because of the deadlock.

Result: A subsequent prosecution is generally permitted because a genuinely deadlocked jury constitutes manifest necessity.

See Miller v. Commonwealth, 217 Va. 929, 933, 234 S.E.2d 269, 272 (1977).

What Should a Virginia Defense Attorney Look For?

When analyzing a possible double-jeopardy issue, defense counsel should establish the procedural history with precision.

The following questions are particularly important:

1. Was there a valid charging instrument?

Determine whether the defendant was proceeding on an indictment, information, warrant, or other charging document.

2. Was the defendant arraigned?

Determine whether the defendant entered a plea.

3. Was the case a jury trial or bench trial?

This determines the point at which jeopardy attaches.

4. If it was a jury trial, had the jury been empaneled and sworn?

This is usually the critical moment.

5. If it was a bench trial, had the Commonwealth begun presenting evidence?

Determine whether a witness had been sworn and whether the Commonwealth had begun its case.

6. Why was the prosecution terminated?

Was it:

• A nolle prosequi?
• A dismissal?
• An acquittal?
• A mistrial?
• A continuance?
• A dismissal for a legal defect?
• A dismissal based upon a factual determination?

The reason for the termination can be dispositive.

7. Did the defendant consent?

The defendant’s consent can materially affect the double-jeopardy analysis.

8. Was there manifest necessity?

If jeopardy had attached, determine why the trial was terminated.

9. What does the court’s order actually say?

Particularly after a dismissal, the exact language of the order may matter under Code § 19.2-265.6.

10. Are there independent speedy-trial problems?

Even when double jeopardy does not prevent reprosecution, the Commonwealth may still face statutory or constitutional speedy-trial limitations.

The Bottom Line on Double Jeopardy in Virginia

The most important rule is straightforward:

In a Virginia jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a Virginia bench trial, jeopardy generally attaches when the Commonwealth begins presenting evidence, ordinarily when the first witness is sworn.

Before that point, a nolle prosequi ordinarily does not prevent the Commonwealth from prosecuting the defendant again.

After jeopardy attaches, however, the defendant acquires a constitutional right to have the proceeding resolved through a verdict or judgment unless a legally sufficient basis exists for terminating the trial.

A nolle prosequi entered after jeopardy has attached can therefore implicate the Double Jeopardy Clause.

The leading Virginia cases include:

• Rosser v. Commonwealth, 159 Va. 1028, 167 S.E. 257 (1933);
• Miller v. Commonwealth, 217 Va. 929, 234 S.E.2d 269 (1977);
• Greenwalt v. Commonwealth, 224 Va. 498, 297 S.E.2d 709 (1982);
• Martin v. Commonwealth, 242 Va. 1, 406 S.E.2d 15 (1991);
• Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 (1988);
• Arnold v. Commonwealth, 18 Va. App. 218, 443 S.E.2d 183 (1994);
• Cummings v. Commonwealth, 24 Va. App. 248, 481 S.E.2d 493 (1997); and
• Neff v. Commonwealth, 39 Va. App. 13, 570 S.E.2d 277 (2002).

Virginia Code provisions particularly relevant to the analysis include Code §§ 19.2-265.3, 19.2-265.6, 19.2-292, and 19.2-294.

Ultimately, a double-jeopardy analysis should focus not merely on whether a case was “dismissed” or “nolle prossed,” but on what happened, when it happened, whether jeopardy had attached, why the proceeding ended, and whether the defendant consented to its termination.

Frequently Asked Questions About Double Jeopardy in Virginia

When does jeopardy attach in Virginia?

In a Virginia jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a bench trial, jeopardy generally attaches when the Commonwealth begins presenting evidence, ordinarily when the first witness is sworn.

Does a nolle prosequi prevent a new prosecution in Virginia?

Usually not if the nolle prosequi occurs before jeopardy attaches. A nolle prosequi generally terminates the existing charging instrument but does not constitute an acquittal.

Can the Commonwealth nolle prosequi a case after the jury is sworn?

The Commonwealth may request a nolle prosequi, but once jeopardy has attached, terminating the prosecution without a verdict can create a double-jeopardy problem unless there is a legally sufficient justification, such as manifest necessity.

Does a nolle prosequi mean I was acquitted?

Generally, no. A nolle prosequi is ordinarily a discontinuance rather than an adjudication of factual innocence.

Can the Commonwealth indict me again after a nolle prosequi?

Generally, yes, if jeopardy had not attached and there is no other statutory or constitutional bar to reprosecution.

Does a preliminary hearing create double jeopardy?

Generally, no. A felony preliminary hearing is not a trial for purposes of attaching jeopardy to the felony charge.

Does a dismissal always prevent reprosecution?

No. Under Code § 19.2-265.6(B), a dismissal generally does not bar subsequent prosecution unless jeopardy attached or the dismissal order expressly states that it is with prejudice.

Can repeated nolle prosequis violate a defendant’s rights?

Potentially. Even if jeopardy did not attach, repeated termination and reinitiation of prosecutions may raise statutory or constitutional speedy-trial issues or other constitutional concerns.

Virginia Criminal Defense Takeaway: If the Commonwealth seeks to nolle prosequi a criminal charge, defense counsel should determine whether jeopardy has attached before consenting or objecting to the termination of the case. In many cases, the precise point at which the jury was sworn or the first witness was sworn can determine whether the Commonwealth may prosecute the defendant again.