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Virginia Supreme Court Rejects Criminal Discovery Reform

The Virginia Supreme Court recently rejected a major criminal discovery reform proposal that would have provided criminal defendants with much needed procedural protections. The following explains the legal context of this decision and what it may mean for you if you are accused of a crime.

The National Epidemic

According to the landmark case of Brady v. Maryland, the due process clause of the United States Constitution requires prosecutors to disclose exculpatory or impeachment evidence prior to trial. Exculpatory evidence is any evidence that tends to favor the defendant. Impeachment evidence is anything that tends to damage the credibility of the government’s witnesses.

In theory, this rule envisages a prosecutor conscientiously sharing any information with the accused that might possibly be relevant to his defense. In a world where the prosecutor is a platonic guardian dedicated primarily to justice without regard to career advancement, things may work like that.

In practice, however, the Brady rule has proven difficult to enforce because it leaves to the prosecutor’s discretion the question as to what constitutes exculpatory evidence. Both the incentives of the system and the prosecutor’s role as an advocate make it difficult for prosecutors to make these decisions with fairness to the defendant in mind. You do not need to assume the worst about a prosecutor to understand that they may not have the same view of what constitutes exculpatory or impeachment evidence as would a defense attorney. Simply put, even a prosecutor who makes diligent efforts in disclosure will have a hard time seeing the case through the defendant’s eyes. (This is why some states like North Carolina have mandated that prosecutors share their entire file with defendants).

Furthermore, trial judges have been reluctant to proactively enforce the requirement. Thus, in most cases the favorable evidence does not surface until later. A growing reform movement has coalesced after a nationwide study concluded that systemic flaws have led to what one federal judge has termed an “epidemic of Brady violations” that “only judges” can stop. Unfortunately, the judges on the Virginia Supreme Court have declined to do their part in addressing the issue.

The Brady Rule in Virginia

While this epidemic spans the United States, it is particularly pronounced in Virginia where defendants are routinely denied access even to police reports. Because of the systemic failures in the Commonwealth of Virginiato enforce the Brady disclosure requirement, the State Supreme Court formed a committee in 2013 to study the need for comprehensive reform. The committee included judges, defense attorneys, prosecutors, legislators, public defenders, private defense attorneys, police officers, law professors, and victim’s rights advocates. The 29-member group spent over a year meeting and discussing a range of issues related to making discovery rules more effective. Their final report was produced earlier this year, and it contained several recommendations that, if followed, would have revolutionized the criminal discovery process in the Commonwealth.

The Proposal: Avoiding “Trial by Ambush”

The committee’s chief aim was to craft new rules that would aim to prevent what they call “trial by ambush,” a phrase that has becoming a recurring theme in critiques of the Virginia criminal discovery rules. The second major goal of the committee was to ensure that discovery rules applied equally to both the state and the defense. The following is a non-exhaustive list of highlights from the committee’s specific recommendations:

  1. Modify the rule requiring the defendant to file a discovery motion, to beginning the process by mandating that discovery begin automatically when the defendant issues notice in writing;
  2. Reform subpoena rules to clarify that defendants have subpoena rights;
  3. Make police reports and witness statements available to defendants (with sensitive victim and witness information redacted);
  4. Require both parties to disclose witness lists;
  5. Require both parties to disclose summaries of expert witness reports;
  6. Clarify the timing requirements of alibi evidence disclosure; and
  7. Impose sanctions in the form of attorney fees for certain discovery violations.

The Court’s Stunning Refusal to Address the Issue

Astoundingly, despite the massive amount of research and debate that went into forming the committee’s recommendations, the Virginia Supreme Court has recently rejected them in their entirety and with virtually no comment. This has left many of the committee’s members dumbfounded and disappointed, particularly those representatives of the criminal defense bar. Essentially the court has, despite formal acknowledgement of the major problems, refused to take any action to address the problem, leaving criminal defendants in the same disadvantaged state they were in before the committee was formed.

Contact a Virginia Criminal Defense Attorney

What does this mean for you as a criminal defendant? In short, it means that the justice system is still very hostile territory and you cannot just walk into court expecting a prosecutor to treat you fairly—especially if you are unrepresented. It means that prosecutors have neither a legal duty nor a professional expectation to hand over evidence that favors you. It means that you need a battle tested attorney to fight for you until they have no choice but to give it up. If you are accused of a crime, don’t make the mistake of thinking that you can expect fair treatment without quality representation. Contact the Leesburg criminal defense attorneys at Simms Showers today. Let us fight for you to ensure that you get fair treatment.

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