In addition, prosecutors will soon be required to provide to the defense a list of names and addresses of all witnesses expected to testify at trial or sentencing, though addresses and other identifying information may be withheld if approved by a judge. The prosecution also must notify the defense if it intends to call any expert witnesses and provide their qualifications and expected testimony, as is done in civil cases but was not required in criminal cases.
“This is a huge deal,” said defense lawyer Alex Levay, a member of numerous task forces which pushed for discovery reform dating from the 1990s. “This is a huge step forward for justice and fairness and providing the information that everyone should be provided when their liberty is at stake.”
“It was long overdue,” said Chief Justice Donald W. Lemons said in an interview with The Washington Post, “and it’s finally here.” He said that as a private attorney, “I handled criminal defense cases, and I do understand the dilemmas.”
Prosecutors who have complained that they must reveal their own cases while defendants may keep their case secret received a new boost from the Supreme Court, too: Defendants now must provide their expected witness list to the prosecution. At least one prosecutor voiced concern that this could create legal quagmires down the road, and one defense attorney said it could lead to witness intimidation by police.
Lemons noted that the rule doesn’t go into effect until July of next year, in order to enable the Virginia General Assembly to consider additional funding for prosecutors, both to handle the new discovery rules and to process the footage from police body cameras, a task that can be highly time-consuming.
“The Supreme Court has basically instituted an obligation on our office that takes resources,” said Loudoun County Commonwealth’s Attorney James E. Plowman, the vice president of the state prosecutors’ association. “Is there an understanding on the legislative side that they’re going to have to pony up and provide more bodies?” He noted that the state funds only 25 percent of his office, and Loudoun pays for the other 75 percent.
Lemons said he hopes the General Assembly could provide more funding for prosecutors in its next session, before the rule goes into effect. Plowman said delaying the implementation of the rule until after the session was a good idea.
Defendants do not have a constitutional right to police reports or witness lists, but most states have required them to be provided, either through laws or court rules. Virginia is one of only eight states that does not require prosecutors to provide a witness list, a 2014 survey found. In 2004, the American Bar Association ranked Virginia last among all states in terms of protections for criminal defendants. In voicing support for the new rule on behalf of Gov. Ralph Northam (D), Virginia Secretary of Public Safety Brian Moran wrote that “Virginia is one of two states in the country with the most limited discovery in criminal cases.”
A state task force in 2015 proposed changes to Rule 3A:11 which would have required prosecutors to hand over police reports, witness statements and a witness list. But the Supreme Court issued a one-paragraph order saying it “declined to adopt the committee’s recommendations.”
Lemons said Thursday that “the language of that order was specifically intended to send a message that we’re not opposed to criminal discovery reform. And we never have been.” He said the court simply wanted to know which aspects of the rule were opposed by the defense bar, or the prosecution, and “what the various parties were giving up.”
The chief justice noted that the state legislature tried in its last two sessions to devise reforms themselves but failed. “I made an effort,” Lemons said, “to let the bar know they ought to take another shot at it.”
The Virginia State Bar launched another task force, headed by state Court of Appeals Judge Robert J. Humphreys, which solicited comments from the public and various legal organizations and proposed a new rule that had something for everybody: statements and a witness list provided to the defense, and a witness list provided to the prosecution. The rules allow either side to ask a judge to allow them to withhold witness information. It also more clearly defines who is subject to subpoena for documents.
The Virginia Association of Commonwealth’s Attorneys issued a statement Thursday that said it “supported the general concept of criminal discovery reform” but suggested modifications to the task force’s proposal, some of which were adopted.
“I am absolutely delighted,” said defense attorney Corinne Magee, vice president of the Virginia Association of Criminal Defense Lawyers. “Regardless of what jurisdiction I’m in, this is going to assure that I get a copy of a police report, and that prosecutors aren’t trying to spring jailhouse snitches without our knowledge.” She said clients have been amazed to learn they didn’t have a right to their police reports, and that she has resolved many cases with guilty pleas once given access to police files.
State Sen. Scott Surovell (D), a criminal defense attorney, called the new rule “the most significant change in criminal procedure we’ve had in Virginiain the 21 years I’ve been practicing law.” He said he thought the legislature’s changing political makeup after the 2017 elections pushed the Supreme Court to take action before a more liberal General Assembly did. “Most of these reforms have happened in other states and the world did not come to a crashing end,” Surovell said.
Prosecutors have previously said about two-thirds of commonwealth’s attorneys in Virginia already allow defense attorneys to review or make copies of police files, including most in Northern Virginia. “You have commonwealth’s attorney’s offices across the state,” Levay said, “who realize that fairness and justice requires a more open discovery process,” and he said prosecutors such as Alexandria’s Bryan Porter helped move the process forward this time. Levay said smaller or more rural counties have resisted providing such information to the defense.
Arlington Commonwealth’s Attorney Theo Stamos said she welcomed the change. “I always thought the rules were too restrictive,” she said, noting that her prosecutors have opened files to defense lawyers for many years. She echoed Plowman that “we could use more resources to comply with the rule.”
The National Association of Criminal Defense Lawyers issued a statement lauding the move by Virginia as “meaningful changes.” Association president Drew Findling said that “Virginia’s amended rules are an important step forward toward leveling the playing field and ensuring that accused persons and their counsel are able to prepare the defense to which they are entitled.”