Court OKs criminal discovery reform

The Supreme Court of Virgnia has adopted proposed criminal discovery rule changes recommended in December by a Virginia State Bar task force. Only minor changes were made in the task force recommendation, according to attorneys who reviewed the court’s order.

The Sept. 5 announcement followed approval at the court’s Aug. 28 business meeting, according to a statement from Chief Justice Donald W. Lemons. The rules are set to take effect July 1 of next year to allow time to assess impacts on prosecutors’ offices.

One defense attorney called the adoption of criminal discovery rules a “watershed moment” for criminal justice in Virginia. Defense attorneys have long complained that discovery practices vary widely, with some prosecutors holding back key information.

Police reports accessible

With the revisions, courts would order prosecutors to allow an accused to “inspect and review” police reports.

Getting a hard copy is not automatic. “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 Supreme Court beefed up the language for discovery of police reports from the task force recommendation. The new rule expressly includes witness statements and summaries of oral statements.

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.

Pressure for change

The proposal that emerged from the 13-member task force chaired by Court of Appeals Judge Robert J. Humphreys was put up for comment this year. Despite opposition from many prosecutors and – at least initially – from the Virginia State Police, the overwhelming majority of the written comments supported the reforms.

“Criminal discovery reform is a complex matter, and while there is not 100% agreement on all issues, this proposal has significant support from the numerous stakeholders involved in the criminal discovery process,” Lemons said in a statement that accompanied the court’s order.

In addition, while legislative proposals to amend the criminal discovery process failed in 2016 and 2017, legislators suggested a fix eventually would come from Capitol Square if it did not come from the court.

Other provisions

Under the revised rules, prosecutors can be ordered to allow the accused to inspect, review and copy or photograph any recorded statement or confession by the accused. Defense lawyers also get access to scientific reports and other documents shown to be material to preparation of the accused’s defense.

The material provided would not normally be open to the public. The rules would provide that any discovery material filed with the clerk would be placed under seal until admitted at trial or ordered unsealed by a court.

Revised Rule 3A:11 would not authorize discovery of prosecutors’ work product, including internal reports, witness statements, memoranda and other internal documents. Names of confidential informants could remain confidential unless the informant is to testify at trial.

A key concern of some law enforcement and victim advocacy interests is preventing the accused from learning personal information about those who will testify for the state. The revised rules say prosecutors can redact the residential address, telephone number, email address and other personal information of victims, witnesses and their families. A judge could allow access to that information for good cause.

While an accused could view material designed as “Restricted Dissemination Material,” the material could not be copied and provided to the accused.

Reaction

“I think it’s great overall,” said Douglas A. Ramseur with the Richmond office of the Capital Defender. Ramseur served on the Humphries task force. “It’s a real watershed moment for criminal justice in Virginia.”

He said Virginia was one of the two worst states in the country in terms of rules governing criminal discovery.

The rules reflect a compromise between defense and prosecution, Ramseur said. “I don’t think either side gets all it wants on this,” he said.

Henrico County Commonwealth’s Attorney Shannon Taylor – another member of the task force – welcomed the court’s decision. She said she hopes to implement the new rules before the official effective date.

“It would be nice if there were several jurisdictions that implement now,” Taylor said.

McLean defense lawyer Corinne J. Magee, vice-president of the Virginia Association of Criminal Defense Lawyers, said she was “delighted” by the revised rules.

“My major concern is, by providing the names and address of defense witnesses, those individuals frequently are ‘visited’ by law enforcement personnel to determine the nature of their testimony,” Magee said. Those witnesses suddenly become less willing to appear and testify on behalf of the defendant, she said.

“However, if we have to provide that information in return for receiving the similar information on the Commonwealth’s witnesses, it is a necessary compromise,” Magee said.

One welcome addition to the discovery rules is the substance of oral statements made by the accused to persons other than law enforcement officers, Magee said.

“Having been broadsided by jailhouse snitches with ‘secret confessions’ in numerous trials over the past 35 years, I think this is one of the most important additions to these rules,” she said.

VACDL president Seth Weston of Roanoke agreed the revisions are welcome for the defense.

“These changes are overall good for our clients because it guarantees access to police reports as well as statements made to other than law enforcement, disclosure of which currently greatly depends on the whims of the prosecutor,” Weston said.

“No more trial by ambush,” tweeted Del. Jennifer Carroll Foy, a public defender.

The Virginia Association of Commonwealth’s Attorneys was planning a statement on the new rules, but it was not available as of press time.

Delay to study cost impacts

Two factors caused the court to delay the effective date to next summer, Lemons said. A state compensation board working group is studying how much police body-worn cameras will increase the workloads of prosecutors’ offices. Some prosecutors took the position their office needs to review all footage recorded by police in connection with criminal charges.

The new discovery rules also may have a financial impact, Lemons said.

“Accordingly, the Court is delaying the effect date of these rule revisions until July 1, 2019, to give the General Assembly time to receive the report from the Compensation Board’s working group and consider the cost of implementation of these rules,” Lemons wrote.