In the 1986 legislative session, the Virginia General Assembly attempted to produce a constitutional amendment designed to expand the right of Commonwealth's Attorneys to appeal criminal cases. The Virginia Constitution prohibits appeals by the commonwealth in criminal cases in which the accused might be sentenced to death or imprisonment, unless the case involves state revenue. Advocates of an amendment to expand prosecutorial appeals have never fully explained the historical context of the prohibition against such appeals and their complex relationship to other constitutional, statutory, and common law provisions. The subject of prosecutorial appeals involves such fundamental legal issues as former jeopardy, justification for the dismissal of a jury before verdict, the finality of judgments, and the reviewability of interlocutory orders. The piecemeal evolution of doctrines in these areas from the English common law to their present state has entangled the concept of criminal appeals by the commonwealth in a web of technical confusion. The issue of prosecutorial appeals also involves a confrontation between the public's interest in access to appellate review and the individual's interest in freedom from harassment and persecution by a powerful government. This article demonstrates that few types of prosecutorial appeals are inconsistent with other legal principles and suggests that greater access to appellate review would enhance the state's ability to protect society from crime without unfairly burdening the individual accused.
Roger D. Scott,
Double Jeopardy and the Commonwealth's Right to Writs of Error in Criminal Cases,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol20/iss3/9