3.9 Discovery

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

3.9 DISCOVERY

There is no common law right to discovery. ¹⁴⁰ The primary sources of modern discovery rules are found in Rule 3A:11 of the Rules of the Supreme Court of Virginia and the federal constitutional doctrine known as the Brady ¹⁴¹ rule. Although most discovery will occur under these provisions, there are a number of other potential sources for discovery.

Section 8 of Article I of the Virginia Constitution affords the criminal defendant the right "to call for evidence in his favor." Henshaw v. Commonwealth ¹⁴² construed Section 8 of Article I as giving a criminal defendant "a right to view, photograph, and take measurements of the crime scene, provided that the defendant makes a showing that a substantial basis exists for claiming that the proposed inspection and observation will enable the defendant to obtain evidence relevant and material to his defense or to be able to meaningfully defend himself." Section 8 of Article I also has been interpreted to recognize the defendant's right to procure documentary evidence held by a third party. If documents or objects in the hands of a third party are material to the proceedings, they are the proper subjects of a subpoena duces tecum. The scope of a subpoena duces tecum is not limited to objects or documents that are admissible at trial but includes documents that affect "the preparation

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and presentation of an accused's case." ¹⁴³ In addition, Section 8 of Article I allows admission of evidence of third-party guilt, if such evidence "clearly or directly" points to the guilt of a third party. ¹⁴⁴

Defendants raising a selective-prosecution claim have a limited right to discovery of government files relating to prosecutions, although a "presumption of regularity" supports prosecutorial decisions, and the standard for discovery is a "demanding" and "rigorous" one that the defendant must meet with "clear evidence." ¹⁴⁵ The standard was not met in United States v. Olvis, ¹⁴⁶ because "statistical evidence of racial disparity is insufficient to infer that prosecutors in a particular case acted with a discriminatory purpose."

An informal source of discovery is the motion for a bill of particulars, ¹⁴⁷ which may disclose information relating to the nature of the charge. Likewise, although not intended as part of the discovery process, the preliminary hearing often yields important information. Lastly, it should be noted that informal discovery can occur pursuant to an agreement between defense counsel and the prosecutor. ¹⁴⁸ In fact, some commonwealth's attorneys subscribe to an "open office" philosophy and voluntarily discuss the nature of the Commonwealth's case. ¹⁴⁹ In Swisher v. Commonwealth, ¹⁵⁰ the Virginia Supreme Court noted that the defendant "was aware, well before

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trial, of the entirety of the Commonwealth's evidence through the Commonwealth's undisputed open file policy." Strickler v. Greene ¹⁵¹ held that when the commonwealth's attorney maintains an "open file policy," the defense need not make a Brady request for exculpatory evidence. "The presumption . . . that prosecutors have fully 'discharged their official duties' is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred."

Upon habeas review in Muhammad v. Kelly, ¹⁵² the Fourth Circuit Court stated:

Let it be clear that we by no means condone the actions of the Commonwealth in this case. As a matter of practice, the prosecution should err on the side of disclosure, especially when a defendant is facing the specter of execution. When questioned at oral argument regarding why this information was withheld or why the Commonwealth did not take the step of instituting an open-file policy, the Commonwealth had no explanation. Yet, at this stage of the criminal process, we deal only with actions that were clear violations of the Constitution. While not admirable, the Commonwealth's actions did not violate the Constitution.

Section 19.2-212(B) of the Virginia Code provides for discovery of evidence presented to a special grand jury:

Upon motion to the presiding judge, the attorney for the Commonwealth shall be permitted to review any evidence that was presented to the special grand jury, and shall be permitted to make notes and to duplicate portions of the evidence as he deems necessary for use in a criminal investigation or proceeding. The attorney for the Commonwealth shall maintain the secrecy of all information obtained from a review or duplication of the evidence presented to the special grand jury. Upon motion to the presiding judge by a person indicted after a special grand jury investigation, similar permission to review, note or duplicate

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evidence shall be extended if it appears that the permission is consistent with the ends of justice and is necessary to reasonably inform such person of the nature of the evidence to be presented against him, or to adequately prepare his defense.

The Virginia Freedom of Information Act ¹⁵³ "does not require a commonwealth's attorney's office or other law enforcement official to release actual records relating to a criminal incident, but only to provide a summary of the information available from the specified records subject to any mandatory or discretionary exemptions provided for in the statute." ¹⁵⁴

When granting a motion for discovery, the court must specify the time, place, and manner of making the discovery and may prescribe terms and conditions. ¹⁵⁵ Although counsel may informally arrange the manner of discovery, the Virginia Supreme Court has cautioned "members of the trial bar that generally it is advisable to have a court order or written stipulation specify precisely what is to be discoverable, thereby avoiding misunderstandings that may lead to fatal consequences on appeal." ¹⁵⁶ Counsel also has a continuing duty to notify the court or opposing counsel upon becoming aware of additional material previously requested or falling within the scope of an order previously entered. ¹⁵⁷ Counsel is entitled to a reasonable opportunity to examine the discovery material and prepare for its use at trial. ¹⁵⁸

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Sanctions for failure to provide discovery are authorized by Rule 3A:11(g) of the Rules of the Supreme Court of Virginia and section 19.2-265.4 of the Virginia Code.

3.901 Discovery Under Rule 3A:11. Discovery under Rule 3A:11 of the Rules of the Supreme Court of Virginia begins with a defense motion. For a comprehensive discovery motion, which includes discovery pertaining to the penalty phase of a capital case, with supporting memorandum, see Appendices 3-16 and 3-17 of this chapter. ¹⁵⁹ A discovery motion must be written, ¹⁶⁰ must be made at least 10 days before the day fixed for trial, ¹⁶¹ and may request the following three forms of discovery: (i) statements of the defendant; (ii) forensic and scientific reports; and (iii) inspection and copying of tangible items.

A. Statements of the Defendant. Rule 3A:11(b)(1)(i) statements are not limited to confessions or other post-arrest statements. Naulty v. Commonwealth ¹⁶² held that a videotape of the defendant purchasing illegal drugs was a recorded statement of the defendant, discoverable under the Virginia rule. The rule, however, does distinguish between written or recorded statements and oral statements. "The language of Rule 3A:11(b)(1) requires the prosecutor to turn over written and recorded statements by the accused whether made to a law enforcement officer or not." ¹⁶³ If the defendant's statement is oral, the defense is entitled to its substance only if the statement was made to a law enforcement officer. For example, in Hackman v. Commonwealth, ¹⁶⁴ two prosecution witnesses made statements to investigating officers in which they repeated conversations they had with the defendant. The court held that these statements were not discoverable because

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they were not "statements" made by the defendant within the meaning of Rule 3A:11 but were instead statements given by witnesses who heard the accused speak. Rule 3A:11(b)(2) specifically exempts from discovery statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth. ¹⁶⁵ If the oral statement is discoverable, "Rule 3A:11(b)(1) requires the Commonwealth to reduce the substance of oral statements to writing, so they can be properly inspected, copied or photographed by the accused, as provided for in the Rule." ¹⁶⁶

For the defendant's statement to be discoverable pursuant to Rule 3A:11(b)(1)(i), its existence must be known to the commonwealth's attorney. ¹⁶⁷ This requirement is satisfied if the prosecutor "should have known" of the statement. ¹⁶⁸ "Constructive knowledge is attributed to the prosecutor where information is in the possession of the police, so long as the officer is not a law enforcement official of a different jurisdiction." ¹⁶⁹ "The Commonwealth is charged with the responsibility to interview all government personnel involved in a case in order to comply with its discovery obligations." ¹⁷⁰

B. Forensic and Scientific Reports. Pursuant to Rule 3A:11(b)(1)(ii), written forensic and scientific reports are discoverable if they are "known by the Commonwealth's attorney to be within the possession, custody or control of the Commonwealth." As long as the knowledge requirement is met, the defendant is entitled to all relevant written forensic and scientific reports made in connection with the particular case. Specifically mentioned in the rule are written reports of autopsies, ballistics tests, fingerprint analysis, handwriting analysis, blood, urine, and breath tests, and physical or mental examinations of the accused or the alleged victim.

The only other requirements of Rule 3A:11(b)(1)(ii) are that the reports be made in connection with the particular case and that the reports be...