Criminal Discovery
Having now had the privilege (or pain) of practicing criminal law in three different states, I can safely say that not all criminal discovery rules and practices are even remotely equal.
In law school, we all read Brady and Giglio and know well that a criminal defendant is entitled to certain information, namely exculpatory and impeachment evidence. However, I am sure more than one state criminal practitioner has had a state court judge or prosecuting attorney look at them as if they are speaking Greek whenever either Brady or Giglio is mentioned, and unfortunately, more than once in this last year, I have seen Virginia prosecutors hesitate or even refuse to turn over exculpatory or impeachment evidence without direct court involvement.
Virginia’s Discovery History
Virginia’s discovery rules are historically limited and have prevented justice for citizens of the Commonwealth, and discovery reform has been a contentious topic for Virginia. Access to discovery is essential to ensure defendants receive their right to due process. By 2021, the Virginia Supreme Court expanded criminal defendant’s access to police reports, witness statements, and witness lists. Despite being years late on this reform and still behind many states on the expanse of criminal law discovery rules, it was a welcome change in Virginia.
Virginia amended Rule 3A:11, the protocol for producing discovery in criminal matters for both the defense and the Commonwealth. The Supreme Court of Virginia states the “constitutional and statutory duties of the Commonwealth’s attorney to provide exculpatory and/or impeachment evidence to an accused supersede any limitation or restriction on discovery provided pursuant to this Rule.” While Rule 3A:11 mirrors some of the ideals of Brady and Giglio, such as the requirement to disclose exculpatory evidence to the criminal defense attorneys and the extension to include impeachment material for any prosecution witness, it can be read to allow the Commonwealth’s Attorney too much discretion, which was the hallmark of the prior discovery rules.
Often criminal defense counsel is left arguing constitutional case law in a motion to compel the production of information that clearly falls within the definitions of exculpatory or impeachment material in Brady and Giglio jurisprudence, while the prosecutor remains hyper-focused on Rule 3A:11. At other times, criminal defense counsel face a prosecutor arguing they do not have to turn over any information unless it is “exculpatory.” “Proving” exculpatory or impeachment material exists in records the defendant has never seen is nearly impossible, and I have encountered many prosecutors who insist such a threshold showing is necessary to require the government to disclose their records.
Virginia Discovery Compared to Other States
In the federal system and for states like Colorado and Maryland (where I have also practiced), criminal discovery rules are much more expansive, and the failure to provide discovery can result in sanctions or even the outright dismissal of a case. In Virginia, however, there is little recourse for criminal defendants who find themselves on the wrong side of a prosecutor with a very narrow view of their discovery obligations.
Our neighbor Maryland’s hearty criminal discovery rules not only require the prosecuting attorney to produce more, but Maryland’s rules require the prosecutor to affirmatively provide discovery without a request from the defense. “Without the necessity of request, the State’s Attorney shall provide to the defense: statements, criminal records, state’s witnesses, prior conduct, exculpatory information, impeachment information, including any relationship the witness has with the prosecutor, prior convictions, medical or psychiatric conditions of the witness, etc.” (paraphrasing Md. Crim. Rule 4-263). In Virginia, a criminal defendant must move the court to order the Commonwealth to produce discovery, and even then, Rule 3A:11 does not even require the Commonwealth to turn over police reports or witness statements. The Commonwealth can satisfy its burden by allowing “inspection and review,” leaving the defendant’s right to access discovery entirely dependent on the responsiveness and personal schedule of the individual prosecutor assigned to the case. In my experience, some Virginia prosecutors simply refuse to return the calls and emails of defense counsel, making such scheduling nearly impossible.
Thousands of miles away, Colorado adopted criminal procedure rules that more closely mirror the federal rules. On more than one occasion, I watched the Court strongly chastise a District Attorney (DA) if there was even a hint of a discovery violation, and on the first day of one of my trials, a DA dismissed an entire case when we all discovered that law enforcement failed to provide dash camera footage to the DA. Colorado Rule of Criminal Procedure 16, like Maryland’s Rule 4-263, is more expansive than Virginia’s Rule 3A:11. It requires that the prosecuting attorney ensures a flow of information between investigative personnel and disclose any information and material relevant to the charges against the accused, and it requires shorter timeframes for when discovery must be turned over to the defense.
While certainly these rules are not followed perfectly in every county in Maryland and Colorado by every practitioner, the mere fact that the rules recognize these disclosure obligations to a criminal defendant puts those defendants in a very different place compared to those in Virginia.
Conclusion
While updates to Rule 3A:11 improved on its predecessor and attempted to promote justice, it fell short of doing just that. Virginia needs to either adopt by rule or in practice more explicit discovery policies and disclosure obligations, which would require the exchange of all evidence possessed by the government to the defense, an obligation for prosecutors to seek out that information from law enforcement agencies, and an obligation to produce copies to the defense. This change would remove the burden from the prosecutor to decide which evidence is exculpatory or has impeachment value, a heavy burden that they are in a poor position to determine without insight into trial strategy from the defense. Fair access to all evidence is crucial to a fair trial in the case and is the bare minimum of what is needed to promote justice in Virginia’s criminal system.
The criminal justice system should be about due process, justice, and even public safety.
Liberal pre-trial and pre-plea discovery also does not impose undue logistical burdens on prosecutors. Trial by surprise has never been a tenet of the American justice system. If a prosecutor is confident about their case, there should be no issue with handing over all discovery, whether that is in the pre-indictment or post-indictment phase. Failure to provide discovery and sometimes a straight refusal to provide discovery does not express the values enshrined in Giglio or Brady. Without full, open discovery, more criminal defendants, including white-collar investigation defendants, will feel unjustly targeted, railroaded by the process, and victimized by their prosecution. Nothing poses a greater risk to the public trust in our justice system.
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