Va. Sup. Ct. R. 3A:17.1

(a) Application. ‒ This Rule applies in cases of trial by jury when the jury finds the

defendant guilty of a felony or a Class 1 misdemeanor and the accused has requested that

the jury ascertain punishment of the offense pursuant to Code § 19.2-295(A).

(b) Bifurcated Proceedings. ‒ In any jury trial in which the jury returns a verdict of

guilty to one or more felony offenses, or Class 1 misdemeanor, a separate proceeding

limited to the ascertainment of punishment must be held as soon as practicable before the

same jury.

(c) Instruction at Guilt Phase. ‒ At the conclusion of all of the evidence in the guilt

phase of the trial, the court must instruct the jury as to punishment with respect to any

Class 2, 3 or 4 misdemeanor being tried in the same proceeding or any lesser-included

Class 2, 3 or 4 misdemeanor of any charged felony offense which may be properly

considered by the jury. The jury may not be instructed until the punishment phase with

reference to the punishment for any charged or lesser-included felony offense or Class 1

misdemeanor.

(d) Opening Statements at Penalty Phase. ‒ Both the Commonwealth and the defense

are entitled if they choose, to make an opening statement prior to the presentation of any

evidence to the jury relevant to the penalty to be imposed. The Commonwealth must give

its statement first.

(e) Presentation of Evidence at Penalty Phase. ‒ If the jury convicts the defendant of

one or more felony offenses, or a Class 1 misdemeanor the penalty phase must proceed in

the following order:

(1) The Commonwealth may present any victim impact testimony pursuant to § 19.2-

295.3 and may present the defendant's prior criminal history, including prior convictions

and the punishments imposed, by certified, attested, or exemplified copies of the final

order(s) as provided by law. As a prerequisite to the introduction of such evidence, the

Commonwealth must have advised the defense, in accord with the requirements of law,

of its intention to introduce such evidence.

(2) The defense may introduce relevant admissible evidence related to punishment.

The defense must have the opportunity to present such evidence irrespective of whether

or not the Commonwealth presents evidence of previous criminal history.

(3) The Commonwealth may introduce relevant, admissible evidence related to

punishment in rebuttal.

(4) The defense may introduce relevant, admissible evidence related to punishment

in rebuttal.

(f) Closing Arguments at Penalty Phase. ‒ Both the Commonwealth and defense are

entitled to make a closing argument on the subject of punishment if they elect to do so.

The Commonwealth must be given the opportunity to argue first, followed by the

defense. Rebuttal argument may be made by the Commonwealth.

(g) Change of Plea. ‒ The accused may enter a plea of guilty to the whole of the

indictment at any time until the jury returns a verdict on the issue of the defendant's guilt

or innocence.

(h) Non-Unanimous Jury at the Penalty Phase. ‒ Should the jury fail to reach

unanimous agreement as to punishment on any charge for which it returned a verdict of

guilty, the court will fix punishment.