“Where there was confusion there is now clarity; where there were concerns for public safety there is now judicial oversight; where access to information has been absent, a pathway to knowledge has been provided; and where trial by ambush has been the norm there is now clarity and transparency.”

– The Honorable Thomas D. Horne, Leesburg, Virginia.

In February of 2013, the Indigent Defense Task Force of the Virginia State Bar suggested revisions to the discovery rules in criminal cases in Virginia. The Supreme Court of Virginia convened a special committee to analyze and suggest revisions to the current Rules. The committee was comprised of judges, commonwealth attorneys, defense attorneys, academics, members of the Virginia legislature, law enforcement, and advocacy groups to considered changes to the Virginia criminal law procedures, as established in the Virginia Code and Rules of the Supreme Court of Virginia.

On March 3, 2015, the Supreme Court opened to comment on the findings and suggestions of the special committee. The full 72-page document is available for viewing here. The public may comment on the suggested revisions between now and June 30, 2015.

The Need For Change:

My first exposure to criminal procedure in actual practice was as a student intern-prosecutor for the City of Akron, Ohio. Ohio, like many other states, treats the right of the accused to have access to the evidence against them as simply part of the Due Process afforded to all citizens under the United States Constitution. In my two years with the City of Akron Municipal Prosecutor’s office, we had an “open file” policy. The policy dictated that the entire prosecutor’s file (save for the prosecutor’s handwritten notes and observations) was available to be viewed by any defendant and/or their defense attorney, with or without a formal discovery request. The rationale behind such a policy is clear: the state should have nothing to hide. Moreover, it is a far greater sin to punish the innocent than to let the guilty go free. The innocent have a far greater need for the discovery than the guilty. If a defendant is truly guilty, showing them the evidence against them reinforces their guilt. The defendant who did what they are accused of usually has first-hand knowledge of many of the facts that will be used against them. By contrast, the falsely accused have no way of knowing what evidence has been conjured against them. The falsely accused typically have no first-hand knowledge of the details of the alleged crime. So why keep the evidence from the accused until trial? The alleged facts should come as no surprise to the truly guilty and will do far more harm to the innocent if he or she has been falsely accused?

The prosecution has a burden to bring only those cases where the evidence of guilt is clear and is able to withstand the harshest scrutiny. Why should the prosecution take to trial any case which cannot withstand such scrutiny? If a witness made a prior inconsistent statement, or if an officer issued a written report which differs from his testimony at trial, shouldn’t the Defense have access to these statements in order to impeach the reliability of the witness’ testimony before the Judge and/or Jury? The state, first and foremost, should be searching for the truth, not just a conviction. There is no state interest in seeing the wrong person convicted while the guilty go free. The very notion of fair play and substantial justice, embodied in the Due Process Clause of the 5th Amendment to the U.S. Constitution, requires equal access to the evidence against the accused.

And yet, in Virginia, the accused have no right to access things like statements made by others against them and reports issued by law enforcement officers. The reality of Criminal Defense practice in Virginia is that, in virtually all cases, the Defendant is subjected to a trial by ambush. The prosecution is allowed to play hide-the-ball and keep nearly all of the evidence hidden from the defense until it is presented at trial (or at a preliminary hearing, where the prosecution can withhold evidence beyond what is necessary to meet the burden of probable cause).

Current Discovery Rules

Under the current Rules and Code of Virginia, Defendants and their counsel are greatly limited in terms of what is available to them. In matters before the General District Court, the only things the state must provide, and only if a motion for discovery is timely made, are as follows:

• The defendant’s prior criminal record, if any, and
• Statements which are made by the defendant to law enforcement.

In matters before the Circuit Courts, the only discovery available to criminal defendants is as follows:

• Statements which are made by the defendant to law enforcement, and
• Copies of scientific reports (ballistics, autopsies, chemical analysis, handwriting analysis, etc.)

In the Circuit Court, if a special, heightened showing is made that access to such items are material to the Defense, the Defense may photograph, copy, or inspect items of physical evidence (and or places) in the possession of the Commonwealth. Beyond these extraordinarily minimal requirements, the state has to provide the Defendant little more without additional showings of need.

The Court may, in its’ discretion, order a Bill of Particulars requiring the Commonwealth to provide greater detail as to what, when, and how the Commonwealth believes the Defendant has broken the law. Unfortunately, there is little guidance in Virginia Case law and in the statutes regarding when a Bill of Particulars should be granted. As such, few Judges know when they should or should not grant a request for a Bill of Particulars. In my experience, some Judges will grant this request under limited circumstances, but many Judges simply will not.

The only other discovery which is allowed to Defendants in Virginia is the disclosure of exculpatory evidence, as required under Brady v. Maryland, a Supreme Court case, and its progeny. Exculpatory evidence is that evidence which tends to prove the innocence of the Defendant and these cases have held that this is a fundamental right of Due Process under the United States Constitution. The duty to disclose this information, of course, only exists if it is specifically requested. What is considered “evidence which tends to prove innocence” is entirely within the Commonwealth’s discretion, and failure to provide such information it is not easily identified nor discovered.

The end result is that the Commonwealth has access to all of the witnesses, their statements, the officers, and the officer’s reports. The Commonwealth has a list of all of the physical evidence and its location. The Commonwealth Attorney alone gets to decide, which, if any of these items, tend to exculpate the Defendant. Since the Commonwealth Attorney is not seeking to prove the Defendant innocent, the Commonwealth Attorney often fails to appreciate which facts are helpful to the Defense. Add to that the fact that the Defendant has no meaningful way to review whether the Commonwealth Attorney has abided by its responsibility to disclose evidence which tends to disprove guilt, and you begin to understand why “open file” discovery is viewed as one of the only meaningful ways to ensure fair access to ALL of the evidence.

Under Virginia rules, the truly guilty defendants are in a much better position to defend their case, because they are more likely to be aware of the allegations than those who stand falsely accused. The truly innocent defendant, in Virginia, is often completely in the dark.

The Proposed Changes

The executive summary highlights the following proposed changes to the Rules (followed by my commentary) as being the most significant:

• Routine discovery shall be triggered by the filing of written notice by the accused rather than requiring the accused to file a motion seeking discovery.

This change would certainly streamline the process. Instead of requiring a formal motion and the entry of an Order, the discovery would be automatic upon simple request. Judges should like this, Defense Attorneys should like this. I cannot fathom why the Commonwealth would object to this modification – other than it may make more work for them.

• Police reports, including witness interviews, shall be subject to discovery, with a broad provision for withholding, redacting or restricting disclosure of police reports for good cause.

Police reports should always be available to the accused. While I question the need to redact and restrict, the requirement of good cause and a hearing on that issue will hopefully limit such redactions to limited cases where it might actually be necessary.

• Witness statements shall be subject to discovery on a reciprocal basis, with a broad provision for withholding, redacting or restricting disclosure of witness statements for good cause.

I disagree with the reciprocity requirement. How exactly would that work? If a defense attorney speaks to a witness for the Defendant, that conversation is protected work product. If the witness says something that incriminates the Defendant, the Defense attorney cannot turn that over without violating his or her duty to the client. Moreover, the risk of abuse by the state to harass and intimidate defense witnesses is of greater concern than the alleged risk of intimidation of witnesses for the Commonwealth. Finally, the Defendant does not even have to put forward a defense. As such, requiring the Defendant to release statements of possible witnesses in advance of trial is troubling. Nevertheless, Defendant’s should have access to the statements made to law enforcement against them, so I am largely in favor of this amendment.

• Witness lists shall be provided by each party shortly before trial, subject to modification by the court for good cause shown.

Again, I disagree with the reciprocity requirement, but on the whole, this appears to be a good rule change.

• The prosecutor’s duty to disclose exculpatory information shall be set forth explicitly by rule.
  This makes perfect sense. The duty already exists, so why isn’t it already in the Rules?
• The Rule governing subpoena duces tecums shall be modified: (1) to set out in detail the trial court’s authority to quash, prohibit or limit disclosure; (2) to define who is — and who is not — a “party” for purposes of a subpoena duces tecum; (3) to incorporate statutory privacy provisions involving health records and certain other confidential information; and (4) to provide for ex parte proceedings in certain narrow circumstances.
• The Committee proposes that the parties in a criminal case be required to provide on a reciprocal basis expert witness disclosures similar to that provided in civil cases.

I have no problem with the requirement that experts be identified in advance of trial. If the defendant is going to the trouble of hiring an expert, it is not unreasonable to require that expert be disclosed in advance of the hearing if they are expected to testify.

A Call for Action

On the whole, the proposed changes are good for the criminal justice process in Virginia. Understandably, the Commonwealth’s Attorney’s, who have for years been playing with all the cards in a stacked deck, are opposed to these proposed changes. The minority view published in the Committee’s report includes the suggestion that the public at large will be less safe if these procedural rules are amended. Such fearmongering is shameful.

The Commonwealth Attorneys have suggested that their first duty is “to protect the public and ‘to do no harm.’” First off, those are two separate duties. Second, I think they are mistaking their duties with the Hippocratic oath taken by doctors. Third, their first duty is actually to find the truth. They cannot protect the public if they do not know the truth.

Since the Commonwealth Attorneys and law enforcement are against these proposed changes, the only hope for passage is if there is public support for the enactment of these changes. As the suggested rules are open for public comment until June 30, 2015, I encourage anyone in favor of these proposed rule changes to speak out in their favor and comment as may be appropriate by sending a letter to:

Patricia L. Harrington, Clerk
Supreme Court of Virginia
100 North Ninth Street, 5th Floor
Richmond, VA 23219

OR via email with the subject line, “Comment on Criminal Discovery Rules” to:
scvclerk@courts.state.va.us

I further suggest you speak with your local state representative to show your support for the proposed legislative changes. Without the support of the legislature, these proposals will be dead on arrival. With your help, Judge Horne’s vision of clarity, transparency, and fairness in the legal process in Virginia might actually be realized. We as Virginians have a duty to ensure a fair and just process is in place for everyone in the Commonwealth.