“While the Court continues to recognize that criminal discovery reform is overdue, it also recognizes that when separate branches of government work cooperatively, it benefits the citizens of the Commonwealth,” Chief Justice Donald W. Lemons said in a statement Tuesday announcing the move.
Virginia’s discovery rules are among the nation’s most restrictive; they have not changed since 1972 and give defendants little idea of what evidence will be used against them at trial. While individual commonwealth’s attorneys often share materials with defendants, the policies vary widely and are inconsistently followed.
House Appropriations Committee Chairman Chris Jones (R-Suffolk), who first revealed the delay during a hearing last week, said prosecutors approached him late last year and expressed concerns about putting the reform into practice.
“It is far-reaching and is going to change really the way they do business in the context of redaction and the like,” Jones said in an interview. “And so it could have really a deleterious impact on the operation of offices.”
In particular, he said, they were worried about making these changes while also dealing with an increase in body-camera evidence. “It was . . . the convergence of these two things at one time,” Jones said.
Reviewing footage from police-worn body cameras is time-intensive, a problem law enforcement agencies across the country are facing. The cost of complying with the new transparency rules is less clear.
Douglas Ramseur, a death penalty lawyer who worked on the new discovery rules, said there’s no evidence that forcing prosecutors to be more open will cost anything. A study of discovery policy in Virginia and neighboring North Carolina suggested that transparency was ultimately more efficient because it dramatically cut down disputes over evidence.
“My wish is that they would go ahead and allow the new discovery rules to go into effect, and I think we’ll see that they actually make things more efficient,” Ramseur said.
The law requires that prosecutors turn over material that could exonerate a defendant or impeach a witness. In his statement, Lemons noted that prosecutors already must review any body-worn camera footage “with or without the rules” to comply with that mandate.
Prosecutors would save time, Ramseur said, by simply handing over the recordings: “I don’t think it makes it worse, I think it makes it easier.”
Some commonwealth’s attorneys have expressed concern over victim and witness safety and suggested that redacting evidence to protect those people will be time-consuming. The new rules do allow for protective agreements or orders that keep material from being disseminated beyond defense attorneys. They also require defendants to turn over witness lists.
“This has been a pretty long process to get to this point,” said Brad Haywood, the public defender in Arlington County. “It took a lot of effort, there was a lot of input from both sides, and what they reached was a compromise.”