Virginia Supreme Court Says 'No Thanks' to Improving State's Dismal Court System

Although prosecutors in Northern Virginia mostly make their files available to defense lawyers, that’s not true across the Commonwealth, defense lawyers said. “Justice is different in one jurisdiction than the next,” said Norfolk defense lawyer Douglas Ramseur. “You could be charged in Richmond and Norfolk and get a completely different amount of information. That seems to me completely inappropriate and unseemly for our system.” He added that prosecutors who like one defense lawyer may provide more access than to a lawyer they don’t like, giving prosecutors unfair leverage.

The proposed Rule 3A:11[b] would allow the defense to inspect "all relevant police reports," such as "reports of interviews of witnesses." The new rule would also allow the inspection of "all relevant statements of any non-expert witness," including written or signed statements, transcripts, or recordings.

The inclusion of police reports and witness statements in the routine discovery process will greatly improve the adversarial process. Under the proposed rules, defense attorneys will have access to the most basic information about their clients' cases. No person should have to stand trial without knowing basic information about the government's case against him. And in a criminal justice system that "is for the most part a system of pleas, not a system of trials," defendants must have access to this critical information before trial so that they can make an informed decision about whether to take a plea bargain or go to trial.

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Proposed Rule 3A:11(i) would, for the first time, formally enact the rule of Brady v. Maryland into Virginia criminal procedure. More than 50 years ago, the United States Supreme Court held that, as a matter of federal constitutional law, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution…

This proposal is consistent with Brady and with adversarial principles. By requiring disclosure of exculpatory evidence upon indictment, waiver of indictment, or before entry of a plea, and by requiring the disclosure of impeachment evidence seven days before trial, the proposed rule provides stronger protection to defendants than offered by current constitutional jurisprudence...

By making clear that prosecutors must make disclosures of Brady evidence before trial, the proposed rule would place appropriate emphasis on the duty of a prosecutor to seek justice, not merely to convict.

On December 2,2014 came the Special Committee on Criminal Discovery Rules and submitted its final report, which included proposed revisions to Rules 3A:l1, 3A:12, 7C:5, 8:15, and which also proposed the adoption of Rule 3A:12.1. Having considered the Committee's report and the public comments submitted in response thereto, the Court declines to adopt the Committee's recommendations.

Virginia Chief Justice Donald W. Lemons said in a statement to The Washington Post that the entire proposal was simply too much all at once. While commending the report, Lemons wrote that “such fundamental and sweeping changes in the system, especially in light of the strong public comments opposing them, seem unwise at this time.”

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“It would be difficult for the court to accept some of the proposals and not all of them as a package because the court cannot be certain about the interdependent nature of these compromises.”

[T]he Supreme Court asked for public comment and received 318 pages of letters and emails. The overwhelming majority, coming from defense lawyers and some defendants, supported the rules changes. But the Virginia Commonwealth’s Attorney Services Council and Virginia State Police filed long, detailed objections.