5.3 The Discovery Process

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

5.3 THE DISCOVERY PROCESS

5.301 In General.

In Virginia, discovery in criminal or serious traffic cases is limited. If no factors militate against formal discovery, counsel should file for discovery soon after the initial client interview has been conducted. The benefit of making a discovery motion is two-fold: first, if the client has a poor or impaired memory of the events surrounding the stop, discovery may allow counsel to obtain facts that the client has been unable to provide; ⁹⁷⁸ second, if the Commonwealth does not answer the request, a continuance may be granted and the court will order the Commonwealth to provide discovery. ⁹⁷⁹ Furthermore, counsel can move the court for a continuance if any statements or records are introduced by the Commonwealth for the first time at trial if they were not provided in answer to the motion for discovery. If nothing else is accomplished, the request can initially put the Commonwealth in a defensive posture, which can aid in the negotiation process. Additionally, counsel may demonstrate to the court that the arresting officer failed to adequately describe or accurately instruct the accused on how to perform the field sobriety tests or that the stop was not done according to the arresting officer's description in his or her report.

5.302 Factors Against Filing Discovery.

There are circumstances when filing for discovery may not be advisable. For instance, the client could have been very recently convicted of a DUI or other offense that may not have appeared on the DMV record obtained by the arresting officer close to the time of the present charge. In this situation, the client could be prejudiced by causing a commonwealth's attorney to run a second DMV record check a month later to answer the defendant's own discovery request. If the Commonwealth discovers the prior conviction because of this, the discovery request will have unwittingly caused the client to be confronted with an enhanced charge. ⁹⁸⁰ There are other situations in which a discovery request is likely to emphasize a problem with the prosecutorial case and provide time for the prosecution to repair that problem. This type of factual determination can be made based on the information the client provides at the first meeting or that counsel gains from other more informal means, such as interviewing the officers involved in the stop and arrest.

5.303 Discovery in General District Court.

The scope of discovery in misdemeanor cases is limited. Some commonwealth's attorneys' offices maintain an open-file policy without formal discovery, and counsel is allowed to inspect the file. It is important to become familiar with the local practice in every court. Alternative methods of obtaining this information should be explored when it appears that the request may highlight something unfavorable about the client.

In the general district court, Rule 7C:5 controls the discovery process. Discovery is available only on misdemeanor charges that carry the possibility of jail time or preliminary hearings for felony cases. ⁹⁸¹ Under this rule, discoverable material includes any relevant written or recorded statements made by the accused, the substance of any oral statements made by the accused to the police, and the criminal record of the defendant. ⁹⁸² Although not required, the commonwealth's attorney will often also provide the defendant's traffic record in response to a discovery request. A Brady ⁹⁸³ request for the disclosure of any exculpatory evidence can also be included in the motion along with a statement that the duty to produce is continuing without further requests. ⁹⁸⁴ In many jurisdictions, this motion will yield the entire investigatory file. Prosecutors are busy and many times will call the arresting officer and ask him or her to provide counsel with the entire file on the case, which is simply produced with little or no review or redaction. If discovery is not provided, counsel may consider a motion to compel, ⁹⁸⁵ although at the district court level, it may be better to bring this to the judge's attention at the trial. If the Commonwealth attempts to introduce material that should have been provided in response to a discovery request, the court can sanction the Commonwealth by either offering a continuance to the defense or by not permitting introduction of the withheld material.

A motion for a bill of particulars, a broader request for information, is also available pursuant to section 16.1-69.25:1 in courts not of record. ⁹⁸⁶ The motion must be made before a plea is entered and at least seven days before the trial date. ⁹⁸⁷ A bill of particulars could be useful in jurisdictions that do not have an open-file policy as this request can be drafted more broadly than a discovery motion; counsel might use the client interview form provided in Chapter 4 of this book to formulate the request for information that was lacking from the client. ⁹⁸⁸

With regard to the forensic evidence, the Department of Forensic Science (DFS) maintains and certifies equipment for breath tests and also trains and licenses operators. Blood samples taken by law enforcement agencies for DUI cases when drug use is suspected or when the accused cannot successfully complete the breath test for medical reasons are also tested there. The DFS website contains a form for a basic Freedom of Information Act request to the Department. ⁹⁸⁹ With respect to breath-testing, it appears that this is the method necessary to gain information from DFS that they do not...