Should Virginia’s pretrial disclosure rules be changed to give defendants greater access to evidence?

Defense counsels seek to tip justice’s scale

By Michael R. Doucette

Doucette is commonwealth’s attorney for Lynchburg and president of the Virginia Association of Commonwealth’s Attorneys.

Deborah Caldwell-Bono’s commentary exemplifies the current confusion generated by the Indigent Defense Task Force’s proposed discovery rule change. The IDTF confuses the different nature of statutory discovery of police reports, which contain the personal identifying information of victims and witnesses, with constitutional exculpatory evidence.

For more than 50 years, prosecutors have had the constitutional duty to turn over any evidence material to guilt or punishment that is in their possession and is favorable to the accused. In thousands and thousands of cases each year, prosecutors honor that obligation. But because of a handful of high-profile cases in which exculpatory evidence was not fully turned over, the IDTF now claims we need to modify the rules dealing, not with exculpatory evidence, but with discovery.

Basically, they are saying because a few prosecutors did not follow the rules requiring disclosure of exculpatory evidence, we now are going to make them disclose the inculpatory evidence.

This new evidence they want disclosed will include police reports with the names, addresses, phone numbers and other identifying information of victims and witnesses. It also will include these witnesses’ statements. Such disclosure can have a significant chilling effect on the cooperation of law-abiding citizens and will make justice more difficult to attain. Prosecutors who previously had an “open file” policy are rethinking their position after seeing police reports and witness statements being posted on the Internet or circulated among gang members.

For many years, defense attorneys have worked with the present discovery rule. They effectively and exhaustively cross-examine prosecution witnesses at preliminary hearings so they will be prepared for trial. Nothing has changed recently concerning defense counsels’ abilities. What has changed is that defense attorneys sense an opportunity to modify the present fair rule into a future favorable rule. Favorable to criminal defendants.

Prosecutors call all the shots, and lawmakers let them

By Deborah Caldwell-Bono

Caldwell-Bono is a Roanoke defense attorney and a member of the board of directors for the Virginia Association of Criminal Defense Lawyers.

The prosecutor’s assertions that being fair would lead to dire consequences is contradicted by experience. The federal system provides for full disclosure and has operated for decades without such repercussions. Those jurisdictions in Virginia wherein the prosecutors elect to provide opposing counsel full access to and copies of documents have suffered no such dire consequences.

Orders directing that copies are not to be provided to third parties nor to be taken from the defense attorney’s office unless in counsel’s possession provide safeguards against public dissemination.

The General Assembly is not going to be considering legislation on this issue when the committee that reviews proposed bills regarding criminal matters is prosecution-oriented and kills any such bills proposed. If the bill never gets out of committee, legislators as a whole never have the opportunity to fix the problem.

All it takes to initiate a criminal prosecution in Virginia is for an individual to go before a magistrate, raise his right hand and swear to tell the truth. A criminal charge is then issued.

The police then gather “evidence” such as witness statements. Thereafter, the prosecutor has total control over the disclosure of such evidence. Whether opposing counsel learns of statements, has access to statements or gets copies of statements is decided by the prosecutor. Defense counsel cannot obtain witness statements from the police, as the police are deemed to be agents of the prosecutor.

Although most Virginia prosecutors are fair-minded and have full disclosure, a minority favor convictions over justice. No individual should be wrongfully convicted, incarcerated or sentenced to death because a prosecutor failed to do his or her job.

Justice demands full access to both parties. The current system is about as fair as having one team in the Super Bowl make all the calls.