Finger on the scale? Debating the fairness of Virginia’s limited criminal discovery

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Court Squared is a regular column on local legal and justice issues by Charlottesville attorney Ron Cooper.

If you’ve ever sat in on a trial, on top of the multitude of emotions you’re experiencing depending on why you’re there, you’ll instantly recognize that real world litigation looks nothing like an episode of Law & Order. Like in most everything else, real trial proceedings are a lot less sexy than those portrayed on TV—unless we’re talking about the bizarre Cop Rock, because there’s nothing sexy about courtroom musicals.

Likewise, the drama of an actual criminal case may not even be the trial itself. Before most trials, the opposing parties exchange information and evidence in a pretrial procedure known as “discovery.” The discovery process is the essential ingredient in every attorney’s trial preparation recipe. Because it can have such a significant impact on the outcome of the ensuing trial, attorneys are rightfully invested in the discovery process.

But depending on who you ask, Virginia’s discovery rules are either fair and reasonable or biased and inadequate.

“Unlike in Federal Court where there are constitutional protections available, Virginia defense lawyers get essentially nothing during the discovery phase,” said local criminal defense attorney Dean L’hospital. “The accused don’t even have the right to view the police reports associated with their cases.”

Currently, criminal defendants and their attorneys are entitled to statements or confessions made by the defendant and certain forensic reports and medical analyses. Federal law mandates the defense also receive any evidence that tends to show the defendant is not guilty.

Discovery rules vary across the U.S.

“States are all over the map on this issue,” said local public defender Jim Hingeley. “As far as I’m aware, Virginia is at the most restrictive end of the [criminal] discovery spectrum along with a few other states,” said local public defender Jim Hingeley

Earlier this year, the Indigent Defense Task Force (IDTF), sent a proposal to the Virginia Supreme Court recommending that the Court broaden discovery in criminal matters to allow defendants access to relevant police reports and recordings and information that negatively affects the credibility of the Commonwealth’s witnesses, among other things.

The Virginia Association of Commonwealth’s Attorneys (VACA) spoke out strongly against the IDTF’s proposed amendments.

“The idea of police reports, recordings, and witness statements being copied and circulated through the community and even uploaded to the Internet is repugnant to Virginia’s prosecutors and anyone else with an interest in the safety and privacy of victims and witnesses,” reads VACA’s letter.

But the Virginia Association of Criminal Defense Lawyers (VACDL) disagrees.

“[A] person accused of a crime would have a better opportunity to defend himself if he knew the substance of the allegation and the results of the investigation of the allegation by law enforcement,” reads the VACDL’s letter in favor of the amendments. The Commonwealth could opt to withhold information in certain cases with a protective order, VACDL said.

The Virginia Victim Assistance Network said that even with safeguards, the proposed changes could negatively affect victim and witness safety, and discourage their participation in investigations and trials.

“A protective order is absolutely insufficient to guard against dissemination of [police reports, recordings, and witness statements] by a recalcitrant criminal offender who is facing far more consequences for their underlying criminal behavior that the punishment associated with a contempt charge which might flow from violating a protective order,” reads VACA’s letter echoing the Victim Assistance Network’s concerns.

Some Commonwealth’s Attorney’s offices in Virginia—including Charlottesville’s and Albemarle’s—opt to work more collaboratively, adopting what’s known as an “open file policy.”

Charlottesville Commonwealth’s Attorney Dave Chapman said choosing to share more information with the defense helps avoid mistrust and antagonism between opposing attorneys. “We have an expansive open file policy because it’s the right thing to do,” he said.

But the philosophy isn’t consistent across Virginia, and Hingeley said that’s a big problem. Codifying a more uniform approach to open file policies would go a long way toward providing adequate discovery in Virginia, he said.

Albemarle Commonwealth’s Attorney Denise Lunsford, who worked as a defense attorney for 18 years, said she’s not opposed to changing discovery rules—as long as they don’t tip the balance too far in favor of defendants. She’s concerned about the fact that the changes would require the prosecutors to turn over a broader spectrum of investigative materials, principally police reports and recordings of witness statements, without placing a corresponding duty on the defense to provide similar information regarding defense witnesses.

“There needs to be more reciprocity in terms of what the defense should provide to the prosecution,” said Lunsford.

Chapman agreed. “The proposed modifications are intended to maximize advantage rather than merely ensure fairness,” he said.

The Virginia Supreme Court recently decided to appoint a committee to perform its own study on criminal discovery. It’s not clear how long the study will take, but a spokesman said the Court was committed to bringing all stakeholders to the table.

L’hospital thinks change is overdue.

“As long as the prosecutor has ultimate control over when and what information to disseminate, defense attorneys will be subjugated and beholden to prosecutors, rather than being equals on a fair playing field,” he said.

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