9.2 DISCOVERY

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 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 demanded 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 awareness that the prosecutorial role is to pursue justice, not merely to convict. ¹⁷⁴⁸

Before 1972, an accused had no right to receive or inspect evidence in the Commonwealth's possession. ¹⁷⁴⁹ 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 were patterned after the discovery rules under the Federal Rules of Criminal Procedure. Since Virginia's 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 Virginia courts to rule favorably on federal precedents.

The Virginia Supreme Court appointed a committee to study and recommend revisions to the criminal discovery rule for consideration by the legislature. The changes made will be discussed in some detail below.

There is no general constitutional right to discovery in criminal cases. ¹⁷⁵⁰ However, the practitioner should refer to Virginia Supreme Court Rule 7C:5 (applicable to misdemeanors which may be punished by confinement to jail and to preliminary hearings in General District Court proceedings) and to Rule 3A:11 as amended, and applicable to criminal proceedings in circuit courts and to juvenile and domestic relations district courts, except proceedings concerning a child in a juvenile and domestic relations district court as an initial source of reference for securing discovery. The preliminary hearing can also be a very valuable discovery opportunity, even though the purpose of the preliminary hearing is not discovery. ¹⁷⁵¹ The bill of particulars also may be used to gain additional information concerning the precise nature and circumstances of the charge. ¹⁷⁵² Often the trial court will deny a defendant's request for a bill of particulars on a charge. ¹⁷⁵³ If there is a basis for a pretrial motion, a bill of particulars will be ordered to assist the defense counsel in filing those motions or objections. ¹⁷⁵⁴ Information and documents in the hands of third parties may be obtained by subpoena, ¹⁷⁵⁵ and, under appropriate circumstances, the constitutional right to "call for evidence" in one's favor may be invoked. ¹⁷⁵⁶ 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 Commonwealth's attorneys 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. ¹⁷⁵⁷

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

1. Scope.

Rule 3A:11 of the Rules of the Supreme Court of Virginia and Virginia Code section 19.2-265.4 apply to felony prosecutions in circuit court and to misdemeanor cases brought by direct indictment in circuit court. ¹⁷⁵⁸ The discussion that follows applies to the newest version of Rule 3A:11, which underwent substantial revision effective July 1, 2020.

The amended rule adds language codifying the Commonwealth's duties under Brady regarding exculpatory evidence ¹⁷⁵⁹ and allows parties to satisfy discovery requirements imposed by the rule to do so by copying (and redacting, if applicable) and transmitting the document to the opposing party. ¹⁷⁶⁰ Rule 3A:11 further provides that material or evidence disclosed or discovered and filed with the clerk of court "must be placed under seal until it is either admitted . . . or the court enters an order unsealing [it]." ¹⁷⁶¹ Additionally, under the rule, upon timely written motion, at least 10 calendar days before trial, ¹⁷⁶² the court must order the Commonwealth's attorney to permit the accused to: (i) inspect and review and copy or photograph any relevant reports prepared by law enforcement officers and made in connection with the particular case, including any written witness statements or written summaries of oral statements contained within such reports, that are known to the Commonwealth's attorney to be in the possession, custody, or control of the Commonwealth; ¹⁷⁶³ and (ii) inspect, review, and copy or photograph certain other relevant statements made by the accused to law enforcement officers or others; written or recorded statements or the substance of an oral statements of codefendants/?co-conspirators that the Commonwealth intends to introduce into evidence; and autopsy examinations, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine, and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim; ¹⁷⁶⁴ and (iii) "inspect, review and copy or photograph designated books, papers, documents, tangible objects, recordings, buildings or places, or copies or portions thereof . . . upon a showing that the items sought may be material to preparation of the accused's defense and that the request is reasonable." ¹⁷⁶⁵

The Commonwealth's duty to permit the accused to inspect, review, and copy or photograph any relevant recorded statements or confessions or the substance of any oral statements or confessions made by the accused to any law enforcement officer continues from the prior version of the rule. ¹⁷⁶⁶ The current language limits this disclosure to those statements by the defendant that are known by the Commonwealth's attorney to be in the "possession, custody, or control" of the Commonwealth, thus presumably providing a safe harbor for failure to disclose if the prosecutor lacks the requisite personal knowledge. The current version of the rule adds that the written or recorded statements or confessions made by the accused to any person who is not a law enforcement officer must be divulged only if the Commonwealth intends to introduce these into evidence against the accused at trial. ¹⁷⁶⁷ The same is true of written or recorded statements and the substance of any oral statements made by a codefendant or a co-conspirator; these need not be produced pursuant to a discovery request unless the Commonwealth intends to introduce them into evidence at trial. ¹⁷⁶⁸

Rule 3A:11(b)(4)(A) further requires the Commonwealth to advise the accused, in writing, of its intent to introduce expert opinion testimony at trial or sentencing and to provide the accused with copies of written report(s) of such expert witnesses as well as the expert witnesses' qualifications and contact information. If there is no written report, the Commonwealth must still provide a written summary of the expected expert testimony. Subpart (5) of Rule 3A:11(b) requires the Commonwealth to provide the accused with the Commonwealth's witness list (and the witnesses' addresses, if known). Subpart (6) of Rule 3A:11(b) exempts the Commonwealth from disclosing its work product, and subpart (7) exempts the Commonwealth from disclosing the names and personal identifying information of confidential informants "whom the Commonwealth does not intend to call at trial and with regard to whose identity the Commonwealth asserts it holds a privilege."

Rule 3A:11(c) contains rules governing redaction and restricted dissemination of material required to be produced by the Commonwealth.

Subpart (g) of Rule 3A:11 outlines new provisions for the entry of a protective order, on the motion of either party, with regard to discovery, and subpart (h) imposes upon the parties a continuing duty to disclose as well as remedies if either party fails in its ongoing duties.

Counsel should note 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. ¹⁷⁶⁹

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. ¹⁷⁷⁰ Counsel should move for detailed discovery and should be prepared to argue why additional information (for example, all documents and items taken...