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

The current rule is fair, favoring neither

By Michael R. Doucette

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

A proposed discovery rule by Virginia defense attorneys is a radical and unnecessary departure from long-standing criminal practice. Such a drastic proposal involves policy considerations that are more appropriately considered by the General Assembly or the Virginia Supreme Court. Neither body has promoted the idea of such a comprehensive change to the current rule.

Historically, pre-trial disclosure to criminal defendants proceeds via two distinct legal tracks.

Track one is rule driven (3A:11) and is based upon policy concerns about the administration of justice in criminal cases. This policy takes into account the very different goals of criminal prosecution versus civil litigation. Justice in criminal cases means that the guilty are apprehended and punished for their crimes.

The policy that undergirds rule 3A:11 is that Virginia’s justice system will provide fairness, but not favor, to a criminal defendant. The redraft of 3A:11 written by defense attorneys seeks a favorable rule of practice rather than a fair rule. When such a rule becomes favorable to a criminal defendant, it becomes unfair to law-abiding society.

Track two is based upon constitutional due process requirements arising out of U.S. Supreme Court cases. For 50 years, these cases have required pretrial disclosure of all exculpatory evidence, which is evidence favorable to the defendant. But this requirement flows from the Constitution rather than a rule. The Constitution sets the floor of fairness, whereas a policy-based discovery rule may either be substantially level with such floor, or it may provide greater disclosure.

The Virginia rule already provides a higher level of disclosure, which is not constitutionally required, but nonetheless, deemed to be fair. The defense bar now seeks to have Virginia’s rule re­designed to be one of favor to their clients rather than the rule that has been fair for 50 years. This rule change would provide more information to the defendant but not to the prosecution.

The proposed version of 3A:11 is based upon the assumption that there is a need for sweeping liberalization of rule-based discovery. But the examples cited are instances where the prosecutor failed to live up to his already existing constitutional duty to disclose exculpatory evidence. No group abhors the actions of rogue prosecutors like Mike Nifong (the Duke Lacrosse case) more than prosecutors. But the system worked there; Nifong was disbarred and jailed (although not long enough).

There is no need to provide a criminal defendant access to confidential components of the prosecution’s file. Witnesses are far less likely to participate in a prosecution if their identities are known to a criminal. The idea of police reports and witness statements being circulated through the community and uploaded to the Internet should be repugnant to anyone interested in the safety and privacy of victims and witnesses.

Fair trials arise when evidence is available to both sides

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.

Imagine a system wherein you or your loved one is charged with a crime, an offense for which you can be imprisoned (which is often simply based upon one person’s word). A system in which the government sends officers to take statements from the accuser and any witnesses, and to seize any other evidence. A system in which you or your loved one is denied access to that evidence unless the prosecutor decides to give it to you.

That system, unfortunately, is the current state of affairs in Virginia. Yes, there are rules and laws that require the prosecutor to give certain information to the accused; however, too often, the system breaks down.

The reasons for failure are many. Sometimes, frankly, the prosecutor inadvertently fails to disclose evidence to which the accused is entitled because of a failure to recognize it as such. For example, prosecutors are mandated to divulge any exculpatory/favorable evidence. They are simply unable to perform this task. As one prosecutor recently acknowledged, “Many times, I believe that specific information is extremely unfavorable to a defendant but the defense attorney spins that same information” to look favorable to the accused.

Sometimes the failure is intentional. In a recent case, a capital murder conviction was overturned because the prosecutor had coached a witness to lie, to give perjured testimony (evidence that only came to light after trial when the entire prosecutor’s file had been ordered disclosed).

Sometimes it is simply the failure of the prosecutor to do his job. One prosecutor’s explanation to the judge for failure to turn over exculpatory tapes was that he didn’t think there was anything exculpatory on them because he had fast forwarded.

Sometimes prosecutors simply fail to understand and appreciate their duty. In support of the current system, a prosecutor recently proclaimed, “The prosecutor may and often does root through the files of the government in order to ensure the defendant has the information that he is entitled to have for his defense.” “May” and “often does” fall short of the prosecutor’s duty.

The only fair way to assure a fair trial, when one’s life and liberty are at stake, is to make the evidence available to both sides to challenge and argue as they deem fit. Many fair-minded prosecutors in Virginia already voluntarily provide open files and copies and let the chips fall where they may. They continue to secure convictions for those who should be convicted and agree justice is served when the innocent go free.

The current system is broken. It results in too many wrongful convictions, the imprisonment of innocent citizens and exorbitant costs to taxpayers. Due process, justice and fair play demand fair trials with all the evidence made available.