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  • Joseph Amonett

Criminal Discovery

Trial by ambush. That is historically how criminal defendants have been tried in Virginia. The Commonwealth’s discovery process has never been very helpful for those accused of crimes, but the Supreme Court of Virginia finally enacted new rules that expand a defendant’s right to know the evidence against him or her in certain cases. Discovery is a procedure whereby the parties to a proceeding exchange information, documents, evidence, and other material related to the case.

Rule 3A:11 of the Supreme Court of Virginia addresses criminal discovery for felonies in circuit courts and misdemeanors in circuit courts brought on direct indictment (not appealed from a Virginia general district court). Under this Rule, a defendant may file a motion for discovery and inspection provided the motion is filed at least ten calendar days before the date of trial. Any material or evidence disclosed or discovered under the Rule and filed with the clerk of court must be placed under seal until it is either admitted as an exhibit at a trial or hearing, or until the court enters an order unsealing the specified material.

One significant benefit of the new rule is that defendants are entitled to inspect and review police reports and witness statements (this has not always been the case!). This does not mean that the Commonwealth must provide copies of these reports, but it is still a step in the right direction. In contrast, prosecutors are required to allow defendants to copy or photograph any relevant written or recorded statement or confession made by the accused to any law enforcement officer. The same is true for statements made by the accused to someone other than a law enforcement officer and statements made by a co-defendant or co-conspirator if the Commonwealth intends to introduce such statements into evidence at trial. Written scientific reports that are known by the Commonwealth’s Attorney to be within the possession, custody, or control of the Commonwealth must also be disclosed.

Another great benefit of the new rule is the fact that the Commonwealth is required to disclose witness lists. This means the government must inform a defendant in writing about all people who are expected to testify at trial or sentencing. If the Commonwealth intends to introduce expert witness testimony at either trial or sentencing, the accused must be notified of that intent in writing along with the expert’s opinions, bases for those opinions, and the expert’s qualifications and contact information. Defendants must also disclose witness and expert information, but the rule does not detail which party must disclose first. We believe that the government should disclose their witnesses first given the fact it is the prosecuting party. It is especially important that you have an experienced attorney who can address this issue.

Restricted Dissemination Material (“RDM”) is another new discovery concept in Virginia. This part of the new rule provides that any discovery material designated as RDM may only be disclosed to the accused’s attorney, agents or employees of the accused’s attorney, or to expert witnesses. A defense attorney may show this material to clients, but a defendant may not keep a copy of it. The purpose of this rule is supposedly to protect victims and witnesses. Although we question whether the rule achieves that intended purpose, it is a small concession for otherwise obtaining more information necessary to prepare a defense in a criminal case. For defendants who choose to represent themselves, a Virginia court may further limit the scope of discovery. For this reason, an accused should always consider using an attorney to ensure they are acquiring the most information possible from the Commonwealth.

When a criminal defendant requests discovery, he or she will likewise need to disclose certain information to the government. First, a defendant must disclose any scientific reports that he or she intends to proffer or introduce into evidence at a trial or sentencing hearing. Second, a defendant must disclose whether he or she intends to present an alibi defense, and if so, where the accused claims to have been at the time of the alleged offense. Third, a defendant must permit the government to inspect, copy or photograph any written reports of physical or mental examination of the accused if the defendant intends to rely upon an insanity defense. Fourth, if the defendant intends to introduce expert witness testimony at either trial or sentencing, the Commonwealth must be notified of that intent in writing along with the expert’s opinions, bases for those opinions, and the expert’s qualifications and contact information. Lastly, a defendant must also disclose any witnesses expected to testify on his or her behalf at trial or sentencing.

As previously stated, Rule 3A:11 of the Supreme Court of Virginia applies only in certain cases in circuit court. Rule 7C:5 governs discovery in Virginia general district courts and that rule has not changed. Under this Rule, a defendant is entitled only to statements or confessions made by the accused to law enforcement and the defendant’s own criminal record. A defendant facing a felony charge will not have the benefit of Rule 3A:11 until the case is certified to the circuit court.

Virginia’s discovery procedures are not the only protections available to defendants. The Commonwealth is still required to disclose information or material that is helpful for proving an accused’s innocence, impeaching the credibility of a witness, and reducing a defendant’s sentence. This disclosure is protected by the Due Process clause of the 14th Amendment to the United States Constitution. All of these rules are very nuanced, and it is important for any criminal defendant to work with a knowledgeable Richmond criminal defense attorney when preparing a defense.

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