June 2013 | Vol. 8, No. 1

Amendments to the Virginia Rules of Discovery pertaining to Criminal Cases

By D. Adam DeVries, P.C.
Radford, Virginia

          Proposed amendments to the Virginia Rules of Discovery pertaining to criminal cases, Rule 3A:11, are under consideration by the Supreme Court of Virginia. The Virginia Indigent Defense Commission drafted amendments to Rule 3A:11. The proposal was sent to the Virginia State Bar Council, which amended it and forwarded to the Virginia Supreme Court for consideration.

          The text of the amendments are available at http://www.vsb.org/docs/proprule-3A11-022213.pdf

          The current rules generally exclude “statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth or of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case” from the documents required to be made available to defense counsel.¹

          The proposal removes statements made by witnesses to agents of the Commonwealth, as well as reports and memoranda, from the items considered not discoverable. The proposal also adds police reports and recordings to the items that would be discoverable.

          A proposed subsection is added to require “Upon indictment, or as soon as practicable thereafter, the Commonwealth shall further provide relevant information favorable to the accused as to guilt, punishment, or a preliminary matter, including any material facts that tend to impeach or negatively affect the credibility of the Commonwealth’s witnesses.”

          The proposal addresses concerns that witnesses may be subject to intimidation by providing that “For good cause shown and pursuant to a protective order entered by a court, the Commonwealth may redact the identity and address or other similar identifying information of a witness when necessary to protect the safety of that witness or his or her family.” The current rules allow a protective order to be entered to limit or prevent discovery as appropriate.

          The proposed amendments result from concerns that exculpatory information is not making it to defense counsel. This concern is in part resulting from recent high profile convictions being vacated due to what are often termed Brady violations.

          This past March, a federal judge vacated David W. Boyce’s 1991 murder conviction because the prosecution did not disclose an exculpatory Polaroid photograph of the defendant taken the day of the crime. In the Boyce case, the prosecutor maintained an “open-file” discovery policy and certified the same to the court prior to trial.

          Since July of 2011 three Virginia capital murder convictions have been vacated by federal judges for Brady issues.

          In each case evidence was not made available to the defense. In July 2011, Justin Wolfe’s 2002 capital murder and death sentence were vacated. In March 2012, Michael Wayne Hash’s 2001 capital murder conviction and life sentence were vacated.

          There are practical concerns for law enforcement in all this. Cases on which police are working today may not go to trial for two or three years. Accordingly, the trial may be governed by rules or case law only in the deliberation stage today.

          While many legal commentators feel that the trend with exclusionary rule jurisprudence is toward a narrowing and restriction of the rule’s application, this author would suggest that rules governing discovery are trending in the opposite direction.

          Law enforcement needs to confer with the Commonwealth’s Attorney to ensure that everything discoverable is made available. This may prevent a case coming back years or decades after trial, at which point a conviction may be much more difficult.