Criminal Discovery: The Current Situation in Virginia
Virginia is identified as one of fourteen states that provide criminal defendants with the least discovery in the nation.{1} 1 The Legal Aid Society of New York State, 2013 Discovery Reform Proposal. In Virginia, defendants are not entitled to police reports, witness lists or witness statements. Many Virginia jurisdictions have recognized that the current discovery system does not provide for the most effective and efficient method of achieving justice. As a result, those jurisdictions have chosen to provide more expansive discovery than what is provided under the current Rule 3A:11. However, by providing for more expansive discovery at their own discretion, those jurisdictions have created another type of imbalance where the rules are inconsistent across the Commonwealth. Inconsistent discovery practices can lead to fundamental and systemic inequality and inequity. The criminal justice system works best when the defense is aware of the evidence prior to trial; the sharing of information leads to more prepared defense attorneys who can better advise their clients and work to achieve the goals of our justice system.
Reform Efforts
In 2014, the Virginia Supreme Court convened the Special Committee on Criminal Discovery Rules. Recommendations included allowing the defense to inspect “all relevant police reports,” including “any formal, written report of investigation by any law enforcement officer” and “reports of interviews of witnesses”{2} 2 Report of the Special Committee on Criminal Discovery Rules (March 3, 2015). and would’ve required the Commonwealth to disclose a written list of names of all witnesses expected to testify at trial at least seven days before trial, while providing several mechanisms for the protection of sensitive information so that witnesses and victims would be ensured that they may safely come forward without the threat of retribution or harm. However, in 2015, the Supreme Court failed to adopt any of the recommendations of the Special Committee. After which, NACDL became involved in the reform efforts, including securing legislation for the 2017 legislative session (SB 1563), convening the Virginia Fair Trial Coalition, and hosting community forums on the need for discovery reform across the state. Please see the May 2017 Champion Magazine article, “Advocacy Case Study: Tackling Discovery Reform in Virginia” for more information on the reform efforts in the state.
Resources
- NACDL Comments Re: The Proposed Revisions to Rules 3A:11 and 3A:12 Received from the Virginia State Bar Criminal Discovery Reform Task Force
- Virginia Discovery Reform Legislation – SB 1563
- SB 1563 Talking Points
- Need for Criminal Discovery Reform in Virginia
- Webcast: America Needs Sensible Discovery Reform
- Join the Virginia Fair Trial Coalition - the coalition’s goal is to reform the current criminal discovery rules in Virginia by requiring that the accused, in every criminal prosecution, promptly receive all information within the possession of prosecutors, law enforcement agencies and other investigatory agencies involved in the case investigation and prosecution.
Articles/Scholarly Journals
- Douglas A. Ramseur, A Call for Justice: Virginia's Need for Criminal Discovery Reform, 19 Rich. J.L. & Pub. Int. 247 (2016)
- Jenia I. Turner and Allison D. Redlich, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, 73 Wash. & Lee L. Rev. 285 (2016)
- Rob Poggenklass, Change Criminal Discovery Rules to End Trial by Ambush in the Commonwealth, ACLU of Virginia (May 26, 2015)
- Frank Green, Justices reject recommendations on pretrial discovery in criminal cases, Richmond Times-Dispatch (Nov. 27, 2015)
- Beth Schwartzapfel, Undiscovered: Defendants say evidence laws force them to take pleas while “blindfolded”, The Marshall Project (8/7/2017)
For more information, please contact Monica Reid, NACDL’s Director of Advocacy, at mreid@nacdl.org.
