Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Law / Va. Cir.: Hearing on forensic testing is ex parte, but order is not

Va. Cir.: Hearing on forensic testing is ex parte, but order is not

A capital murder defendant who sought forensic testing of certain evidence was entitled to present his argument to the court ex parte under Code § 9.1-1104. But the statute does not authorize ex parte status for the resulting order as well.


Defendant Darwin Martinez Torres was indicted on seven felony counts, including capital murder, abduction, and rape. The defense filed a motion entitled Ex Parte Motion for Forensic Testing pursuant to Code § 9.1-1104.

After an ex parte hearing pursuant to the statute, the court granted the motion for forensic testing of certain evidence in the custody of Fairfax police. However, the parties now dispute whether the order arising out of the hearing should be issued ex parte and under seal.

Forensic-testing confidentiality

When an order is issued pursuant to Code § 9.1-1104 directing law-enforcement authorities to transmit evidence in the custody of the Commonwealth to the Department of Forensic Science for forensic testing, is that order issued ex parte and under seal? For several reasons, the court answers in the negative.

First, the plain statutory language does not authorize it. A court may act ex parte on a substantive matter only when it is authorized by rule or statute. While the statute says that the motion shall be heard ex parte, it does not say that the resulting order shall be issued ex parte. In other statutes, but not in this one, the legislature has explicitly required that the orders arising out of ex parte proceedings be sealed. Here, the absence of such authorizing language must be deemed intentional.

Second, a § 9.1-1104 order is limited in nature and scope. Its purpose is not to disclose the defendant’s theory of the case, strategy, or reason and rationale for the requested forensic testing. It must address only four issues: (1) whether the defense has met the statutory criteria; (2) the evidence to be tested; (3) which tests will be performed; and (4) the logistics necessary to effectuate the order. Neither custodial law-enforcement agencies nor the testing agency need to know the defendant’s litigation strategy.

Third, the practical difficulties of an ex parte § 9.1-1104 order support the conclusion that the legislature did not intend the order to be ex parte. If it were, Fairfax police would be required to transport evidence to and from the Department while keeping it secret from the Commonwealth’s Attorney. Yet the same prosecutor, in the course of trial preparation, will need to obtain from police the documents associated with the chain of custody for each item of evidence the Commonwealth seeks to admit at trial. These documents might well reveal that certain evidence was transported to the Department, which an ex parte order would prohibit police from disclosing.

Moreover, in preparing for trial, the prosecutor might well wish to inspect evidence based on the entirely reasonable assumption that the evidence is in police custody. But what if it is not? If the evidence is instead in the Department’s custody, how would a detective respond to a request for the evidence without violating an ex parte order?

These are not wild or improbable hypotheticals. Ultimately, it is impossible to remove the police department from the chain-of-custody equation.

Finally, § 9.1-1104’s last sentence explicitly contemplates that the Commonwealth, before trial, will be given everything that would be in a § 9.1-1104 order. Such an order will disclose no more, and considerably less, than what the Department must produce to the Commonwealth pursuant to the statute.

This distinguishes § 9.1-1104 from
§ 19.2-264.3:1.3, which authorizes both ex parte proceedings and sealed orders in connection with defense requests for experts. Those experts work for the defense, and their work product may never be used at trial – and never disclosed to the Commonwealth – if the defense decides not to offer it. Therefore, in that context, the motion, hearing, and orders are all under seal until at least after the trial is over. In contrast, § 9.1-1104 requires disclosure of the results to the Commonwealth regardless of whether the results are helpful or harmful to the defense.

Because the defense has indicated it may withdraw its request for forensic testing given this result, the Defendant will have 14 days to advise the Commonwealth and the court if he wishes to proceed in light of this opinion.

Commonwealth v. Torres, Case No. FE17-1245, Aug. 13, 2018. Fairfax Cir. (Bellows). VLW No. 018-8-073, 8 pp.

VLW 018-8-073

Virginia Lawyers Weekly