9.5 Discovery

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.5 DISCOVERY

9.501 Defendant's Discovery Generally. 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 providing liberal discovery to the defendant 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 noted before urging federal precedents.

There is no general constitutional right to discovery in criminal cases. ³⁵³ 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. The bill of particulars also may be used to gain additional information concerning the precise nature and circumstances of the charge. ³⁵⁴ Often the trial court will deny a defendant's request for a bill of particulars on a charge if the indictment provides enough notice with what the defendant is charged. ³⁵⁵ If there is a basis for a pretrial motion, a bill of particulars may be ordered to assist the defense counsel in filing those motions or objections. ³⁵⁶ Information and documents in the hands of third

[Page 734]

parties may be obtained by subpoena, ³⁵⁷ and, under appropriate circumstances, the constitutional right to "call for evidence" in one's favor may be invoked. ³⁵⁸ 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 friendly 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 (non-disclosure of exculpatory evidence), ³⁵⁹ the court must take into consideration how the defense may properly use the non-disclosed information. In the Brady context such non-disclosed evidence may be, and often is, used to discredit an entire police investigation. ³⁶⁰

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

A. Scope. In 2018, major changes to Rule 3A:11 were adopted by the Virginia Supreme Court to make the playing field more level for the defendant. ³⁶¹ After decades of limited criminal discovery, Rule 3A:11 was

[Page 735]

expanded to require commonwealth's attorneys to allow defendants to review—but not copy—all relevant police reports in a case and all witness statements and to provide to the defense a list of names and addresses of all witnesses expected to testify at trial or sentencing, although addresses and other identifying information may be withheld if approved by a judge. The prosecution also must notify the defense if it intends to call any expert witnesses and provide their qualifications and expected testimony, as is done in civil cases but was not required in criminal cases. Likewise, defendants now must provide their expected witness list to the prosecution.

Rule 3A:11 of the Rules of the Supreme Court of Virginia and Va. Code § 19.2-265.4 apply to felony prosecutions in circuit court and to misdemeanor cases brought by direct indictment in circuit court. ³⁶² Under the rule, upon timely written motion, the court must order the commonwealth's attorney to permit the accused to: (i) inspect and copy or photograph any relevant written statements, or the substance of any oral statements made by the accused to any law enforcement officer, that are known by the commonwealth's attorney to be in the possession, custody, or control of the Commonwealth; ³⁶³ and (ii) inspect and copy or photograph written reports of autopsy examinations, 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 that are known by the commonwealth's attorney to be in the possession, custody, or control of the Commonwealth, ³⁶⁴ including discovery of all writings used by experts in performing tests. ³⁶⁵ 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. ³⁶⁶

The rule also provides that, upon timely written motion, the court must order the commonwealth's attorney to permit the accused to inspect, review, and copy or photograph designated books, papers, documents, tangible

[Page 736]

objects, recordings, buildings or places, or copies or portions of these items, that are known by the commonwealth's attorney to be in the possession, custody, or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of the accused's defense and that the request is reasonable. ³⁶⁷ 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. ³⁶⁸ 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 calendar days before the day fixed for trial and must identify all relief sought. A subsequent motion may be made only upon a showing that the motion would be in the interest of justice. ³⁶⁹

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. ³⁷⁰

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. ³⁷¹ The Commonwealth

[Page 737]

must provide a written summary of oral statements made to law enforcement officers so that they may be "inspected, copied or photographed." ³⁷² 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. ³⁷³

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. ³⁷⁴ But much of that information can be obtained by issuing a subpoena. ³⁷⁵ 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 department and that is related in any way to a crime for which the client is accused. ³⁷⁶

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. ³⁷⁷

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

[Page 738]

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. ³⁷⁸ . Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo. L.J. 1276, 1278-80 (1966).

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 might lead to the discovery of relevant evidence. ³⁷⁹ Although the federal rules no longer contain the limitations previously discussed, an earlier version of the federal...