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Criminal discovery comment sought

The latest proposal to reform criminal discovery in Virginia is being put up for comment by the state Supreme Court.

The court is asking for comments on proposed revisions to Rules 3A:11 and 3A:12 regarding criminal discovery. The court’s Feb. 23 announcement is accompanied by a marked up version of the rules that corresponds with the recent recommendation of a Virginia State Bar Criminal Discovery Reform Task Force.

The 13-member task force, led by Court of Appeals Judge Robert J. Humphreys, unanimously approved a package of suggested changes on Dec. 4.

Among other recommendations, the proposed amendments would authorize judges to allow defense lawyers to “inspect and review” police reports. “Nothing in this rule requires that the Commonwealth provide the accused with copies of the relevant law enforcement reports, although it may do so in its discretion” Rule 3A:11(b)(1) would read.

The proposals also provide for reciprocal exchange of witness lists and recommend that defense lawyers provide expert witness information, as is now required of prosecutors.

At least one prosecutor is skeptical. Fairfax County Commonwealth’s Attorney Ray Morrogh said in January that the new police report language would hamper his office’s ability to protect victims and uninvolved witnesses who provide information to police.

Efforts to reform criminal discovery in Virginia date back to 2004 when a report criticized the state’s efforts to ensure adequate representation for indigent criminal defendants.

The court said comments on the latest recommendations should be sent by June 1 to scvclerk@vacourts.gov with the subject line “comment on Rules 3A:11 and 3A:12.”

Comments also can be mailed to

Patricia L. Harrington, Clerk

Supreme Court of Virginia

100 North Ninth Street

5th Floor

Richmond, VA 23219

NB: On March 2, the court published a corrected version of the criminal discovery reform  proposal here: http://www.courts.state.va.us/news/items/2018_0302_scv_press_release_cr_discovery_rule.pdf