Proposed Criminal Procedure Changes Will Foster Fairer Criminal Trials in Virginia State Courts

Thomas J. Bondurant, Jr. is the Chair of Gentry Locke’s Criminal & Government Investigations group and served on the Special Committee on Criminal Discovery Rules.

Under current Virginia state criminal procedures and laws, a defendant often has no idea what evidence will be presented by the Commonwealth Attorney or who may or may not testify against him/her at trial. Under Virginia law, a defendant is only entitled to know his own statements, his own criminal record, an incomplete accounting of certain documentary evidence that may be used at trial, and any evidence the state prosecutor considers exculpatory.

Many responsible Commonwealth Attorneys across Virginia have long understood the unfairness of the Virginia criminal discovery rules and have allowed defense counsel far greater access to the evidence in a pre-trial setting than legally mandated.

In October 2013 then Chief Justice Cynthia Kinser of the Virginia Supreme Court appointed an independent committee to advise the Court on the need for reform of the criminal discovery process. The committee was comprised of 29 members and drawn from the ranks of prosecutors, defense counsel, law enforcement officials, academics, victims’ advocates, judges and legislators. The Committee’s report was completed on December 2, 2014 and released to the public on March 3, 2015.

Under the proposed rule changes a criminal defendant is entitled to, among other items, police reports, witness statements, broader expert witness information, a witness list prior to trial, and greater subpoena power. The proposed rules also define what is considered discoverable exculpatory material to include information that tends to negate the guilt of the accused, mitigate the offense charged, reduce punishment, or tends to impeach the prosecution witnesses. Under the current system many Commonwealth Attorneys have their own definition of what constitutes constitutionally discoverable exculpatory material that is not as complete as the proposed change.  For “good cause” (e.g. a witness’ life is in danger) the Court is empowered to restrict or redact the release of specific information. On the other hand, the Commonwealth Attorney has a reciprocal discovery right to defense witness statements and a witness list prior to trial.

These proposed changes are long overdue and should be adopted without delay.