9.2 Discovery

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

9.2 DISCOVERY

9.201 Defendant's Discovery Generally.

A. Background. The trend toward more liberal discovery by the defendant in a criminal case began in the 1960s. The basic premise behind this movement was that the greater resources of the state put the criminal defendant at a disadvantage, and, therefore, fairness demands that at least certain information in the possession of the prosecutors should be made available to the defendant. This premise was reinforced with the heightened

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awareness that the prosecutorial role is to pursue justice, not merely to con-vict. ⁴

Before 1972, an accused had no right to receive or inspect evidence in the Commonwealth's possession. ⁵ The traditional view was that liberal discovery was undesirable because it would lead to: (i) perjury and suppression of evidence; (ii) possible bribery and intimidation of potential Commonwealth's witnesses; and (iii) a further imbalance in the criminal process in favor of the defendant, since the Commonwealth could not force reciprocal discovery, at least with respect to some information, due to the constitutional prohibition against compelled self-incrimination.

The Virginia rules on discovery are patterned after the discovery rules under the Federal Rules of Criminal Procedure. Since the adoption of discovery rules in 1972, however, significant modifications have been made to the federal discovery rules, but corresponding changes have not been made to the Virginia rules. Thus, cases decided under the federal rules may or may not help in construing the Virginia rules on discovery. The differences between the two discovery processes should be carefully reviewed before urging federal precedents. Counsel should note, however, that the Virginia Supreme Court has appointed a committee to study and recommend revisions to criminal discovery, but at the time of publication no formal revisions have been enacted.

There is no general constitutional right to discovery in criminal cases. ⁶ Rule 3A:11 of the Rules of the Supreme Court of Virginia is just one of several methods of securing discovery. The preliminary hearing can also be a very valuable discovery opportunity, even though the purpose of the preliminary hearing is not discovery. ⁷ The bill of particulars also may be used to gain additional information concerning the precise nature and circumstances of the charge. ⁸ Often the trial court will deny a defendant's request for a bill of particulars on a charge. ⁹ If there is a basis for a pretrial motion, a bill of particulars will be ordered to assist the defense counsel in filing those

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motions or objections. ¹⁰ Information and documents in the hands of third parties may be obtained by subpoena, ¹¹ and, under appropriate circumstances, the constitutional right to "call for evidence" in one's favor may be invoked. ¹² Finally, informal conversations with the commonwealth's attorney and police officers involved may produce information about the case and its strengths and weaknesses. Establishing a uniformly friendly, collegial, and professional relationship with the commonwealth's attorney and local law enforcement officers should be the goal of all defense counsel.

Constitutional doctrines also may require the prosecution to turn over to the defendant certain information that otherwise might not be subject to discovery under the discovery rules. Moreover, these constitutional doctrines impose, in some instances, an affirmative obligation to provide the information even in the absence of a specific discovery motion from the defense. Although these constitutionally based doctrines are not true discovery devices, they nonetheless are a valuable source of information and should be used to their maximum extent. When determining whether to grant a new trial because of a Brady violation, the court must take into consideration the use the defense may properly make of the non-disclosed information. In the Brady context such non-disclosed evidence may be, and often is, used to discredit an entire police investigation. ¹³

B. Defendant's Discovery Under Rule 3A:11.

1. Scope. Rule 3A:11 of the Rules of the Supreme Court of Virginia and section 19.2-265.4 apply to felony prosecutions in circuit court and to misdemeanor cases brought by direct indictment in circuit court. ¹⁴ Under the rule, upon timely written motion, the court must order the

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commonwealth's attorney to permit the accused to: (i) inspect and copy or photograph any relevant written statements made by the accused, or the substance of any oral statements made to any law enforcement officer, that are known by the commonwealth's attorney to be in the possession, custody, or control of the Commonwealth; ¹⁵ and (ii) inspect and copy or photograph written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine, and breath tests, and other scientific reports of a physical or mental examination of the accused or alleged victim made in connection with the particular case, or copies of the reports, that are known by the commonwealth's attorney to be in the possession, custody, or control of the Commonwealth, ¹⁶ including discovery of all writings used by experts in performing tests. ¹⁷ Counsel should note, however, that a defendant's motion to require a crime victim to submit to a physical examination is a discovery effort, and no authority exists for such a motion. ¹⁸

The rule also provides that, upon timely written motion, the court must order the commonwealth's attorney to permit the accused to inspect and copy or photograph designated books, papers, documents, tangible objects, buildings or places, or copies or portions of these items, that are in the possession, custody, or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of the defense and that the request is reasonable. ¹⁹ Many "standard discovery orders" provided by the commonwealth's attorney do not provide for the full range of discovery allowed by Rule 3A:11 but merely provide discovery of statements and documents that the Commonwealth intends to introduce in its case-in-chief. ²⁰ Counsel should move for detailed discovery and should be prepared to argue why additional information (for example, all documents and items taken from premises during the search) is material to the preparation of the defense.

The motion by the accused for discovery must be made at least 10 days before the day fixed for trial and must include all relief sought. A

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subsequent motion may be made only upon a showing that the motion would be in the interest of justice. ²¹

The items subject to discovery include those in the possession, custody, or control of the Commonwealth and not just those in the possession, custody, or control of the commonwealth's attorney. However, for purposes of Rule 3A:11, "agents of the Commonwealth" are only those who work for an agency that is involved in investigating or prosecuting the case. ²²

Some of the most important items subject to discovery under the rule are statements or confessions made by the accused. Although the rule includes written, recorded, and oral statements, it limits discovery of oral statements to those made to law enforcement officials. ²³ The Commonwealth must provide a written summary of oral statements made to law enforcement officers so that they may be "inspected, copied or photo-graphed." ²⁴ When inculpatory statements of the accused that have not been disclosed as required by discovery rules are not introduced at trial, the defendant, in order to win reversal on appeal, must demonstrate prejudice by showing that timely disclosure would have affected trial strategy. ²⁵

The right to discover the content of scientific and medical reports in the Commonwealth's possession is limited to the actual reports and does not necessarily include the data on which the reports were based. ²⁶ But much of that information can be obtained by issuing a subpoena. ²⁷ When other examinations may have been conducted by the Department of Forensic Science but might not have been provided by the Commonwealth because of the language of the discovery order, counsel should send a written request to the director for results of any investigation that has been conducted by the

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department and that is related in any way to a crime for which the client is accused. ²⁸

The portion of the rule granting the right to discover statements made by the accused and scientific reports is limited to those "known by the commonwealth's attorney to be within the possession, custody or control of the Commonwealth." The rule has been interpreted to include all information in the possession of the prosecutor's office and the police within the jurisdiction where the offense is prosecuted. ²⁹

The rule imposes no such limitation, however, on the obligation to disclose designated books, papers, tangible objects, and places in the possession, custody, or control of the Commonwealth. The right to discover these items is conditioned upon a showing of materiality and reasonableness. Moreover, the rule limits the discovery to "designated" items. The accused thus faces two potential obstacles to the discovery of these items. First, the motion must demonstrate the reasonableness of the discovery request and the materiality of the items sought. Second, the motion must seek the discovery of "designated" items. It has been urged that the proper interpretation of this language is that the accused must at least identify or "designate" the types and classes of items sought but need not identify specifically which items are sought. ³⁰ The materiality and reasonableness requirements are equally ambiguous. It has been suggested that the defense should not be required to lay a detailed foundation to support the discovery request. Rather, discovery should be ordered as long as the items sought are relevant to the subject matter and...