Committee Proposes New Criminal Discovery Rules for Virginia

Posted on March 27th, 2015, by Livesay & Myers, P.C. in Criminal Defense. Comments Off on Committee Proposes New Criminal Discovery Rules for Virginia

DiscoveryWay, way back in 2012, I wrote My Cousin Vinny and Discovery in Virginia Criminal Cases, which explained the rules for discovery of evidence in Virginia criminal cases.

It appears that those discovery rules are very likely to change. Earlier this month, the Virginia Supreme Court released a report by its “special committee on criminal discovery rules.” Chaired by retired Loudoun County Circuit Court Judge Thomas D. Horne, this committee spent the bulk of 2014 looking at the existing Rules of Discovery and determining whether any changes to them should be proposed. The committee delivered its report to the Supreme Court on December 2, 2014.

In its report, the committee proposed several new rules that, if adopted, would dramatically affect the nature of criminal practice in the Commonwealth of Virginia. It is important to keep in mind that these are recommendations only, not updated law. Here are the changes proposed by the committee:

  1. Initiating discovery by notice not motion. Currently, if the defendant wishes to receive formal discovery, a motion requesting discovery must be filed, and an order entered. In the vast majority of cases, standard form agreed discovery orders (containing generic boilerplate language) are submitted for entry. By allowing the defense to initiate discovery by a mere notice, the proposed new rule reflects that providing the requisite information to the defense is an obligation of the prosecution, not a privilege left to the discretion of the court. The new rule would not make providing discovery mandatory—a defendant would still be required to notify the prosecution it desires discovery—but would eliminate the burdensome middle step of docketing a motion to request formal permission from the court to seek discovery. This change would expedite the process for receiving discovery and greatly assist defense counsel in their representation of the accused.
  2. Making police reports and witness interviews available to the defense. This is commonly done in jurisdictions where “open file” discovery is practiced, but it is a courtesy, not a rule. Witness statements that are potentially exculpatory are already required to be produced, but the new rule would permit the defense to have a better knowledge of what all potential witnesses might say. The new rule would allow the prosecution to withhold disclosure for good cause.
  3. Having both the prosecution and defense make witness statements available (again, subject to withholding for good cause). One of the committee’s primary objectives was to eliminate “trial by ambush” in which evidence does not have to be disclosed to the opposing side until it is going to be offered at trial. This proposed modification to the rules would require both sides to disclose what their potential witnesses have stated or may state at trial.
  4. Making witness list disclosure mandatory before trial. In most civil trials, at the circuit court level at least, courts enter uniform scheduling orders, in which many of the new rules proposed by the committee are standard. However, most jurisdictions do not have criminal scheduling orders. The proposal would permit modification of witness lists, again for good cause.
  5. Modifying the rules to require each side to provide advance notice if an expert witness is to be called at trial, and to provide a summary of the qualifications and anticipated testimony of each expert witness.
  6. Expressing the prosecutor’s duty to disclose potentially exculpatory evidence as required by the U.S. Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963). The committee left the door open to creating guidelines for such disclosures in the future.
  7. Amending the subpoena rules in order to make clear who is subject to the subpoena, what can be requested, and how privacy can be maintained.

The committee addressed a variety of possible objections to their proposed new rules, such as increasing the costs to the prosecution (or even the defense) at a time when budgets are consistently constrained. They also addressed the possibility that rather than eliminating “trial by ambush” their proposals would create a different cat-and-mouse game where officers withhold information from their reports in order to keep certain things from being disclosed to the defense. The committee stressed the need for training to ensure that the justice process is as fair to both sides as possible. They also addressed one final major concern, that of protecting the victim. In order to protect victims’ rights, several of the committee’s proposals have built-in exceptions whereby information can be restricted for good cause.

In all, I see these discovery modifications as a positive for the criminal judicial process. Telling a client that I don’t have access to this or that information because it’s not required creates a distrust in the system. If justice is blind, it should not favor one side over the other in our adversarial process. The prosecution has a heavy burden to prove guilt, but heavy are the consequences of guilt to an accused as well. Our system is built on the presumption of due process, and open and equitable discovery rules at a minimum provide the accused with the belief that he or she will receive a fair hearing in Virginia.

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Livesay & Myers, P.C. is a law firm with offices in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia.

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