How Virginia’s Pre-Trial Discovery Rules Favor The Prosecution

by Jamison Koehler on November 9, 2010

Establishing a friendly and professional relationship with the commonwealth’s attorney and local law enforcement officers should be the goal of all defense counsel.

– Virginia Lawyers Practice Handbook on “Defending Criminal Cases in Virginia”

I never knew how good I had it as a criminal defense attorney in Philadelphia.

Although the pre-trial discovery rules in criminal cases are remarkably similar in all three jurisdictions in which I have practiced, the rules are interpreted differently. As suggested by the guidance above from the Virginia Lawyers Practice Handbook, there is also a major difference among these jurisdictions in the balance of power between the prosecutor and defense counsel in the application of these rules.  In Virginia, everything weighs in favor of the prosecution.

“Pre-trial discovery in criminal cases” refers to the court-enforced process by which both sides to the case – prosecution and defense – exchange information in preparation for trial.  Given the stakes involved in a criminal case, the burden is heavier on the prosecution.

Generally, the prosecution has a statutory duty to turn over any statements by the defendant, the defendant’s prior record, and information on any expert witnesses that the government intends to call at trial.  The government is also required to disclose the results of any scientific tests carried out in connection with the case and any books, papers, documents, photographs and other tangible objects that are both within the government’s possession and material to the defendant’s case.  Finally, the government has a constitutional obligation to turn over any exculpatory information.

Through “reciprocal discovery,” a defendant who exercises his statutory rights to obtain pre-trial discovery from the government is required to turn over certain items in return.  These items roughly mirror the government’s obligations, including any books, papers, etc. that are within the defendant’s possession and which the defendant intends to introduce as evidence at trial.  Most jurisdictions also require the defendant to provide advance notice to the government if he plans to introduce an alibi or insanity defense.

Rules are one thing.  Implementation is another.  There are, for example, tremendous differences between Pennsylvania and Virginia in the way the discovery process for misdemeanors is handled.

I realize now that, as a public defender in Philadelphia, I was spoon-fed all the information I needed to prepare my client’s defense.  Based on a formal agreement between the District Attorney’s Office and the Defender Association of Philadelphia, all defense counsel in that city are provided a discovery packet well before trial that contains all sorts of helpful information. The material includes copies of all police reports; statements by the defendant, complaining witnesses, or eyewitnesses; photographs, videotapes, and recordings; and arrest/search warrants and affidavits of probable cause supporting those warrants. Depending on the case, the material could also include property receipts and seizure analyses; ballistics reports; and breath or blood test results.

And the courts enforce this agreement. A prosecutor might be able to convince a judge to continue a case one or two listings in order to provide any material that is missing. After that, the court will dismiss the case for lack of prosecution, and the prosecutor’s office is always far too busy to refile the charges.

Not so in Virginia.  While, like most jurisdictions, Virginia based its discovery rules on the Federal Rules of Criminal Procedure, it has declined to adopt many of the subsequent changes.  “Thus,” writes John Lichtenstein in the Virginia Lawyers Practice Handbook, “cases decided under the federal rules may or may not help in construing the Virginia rules on discovery.”

The Virginia Supreme Court has also set out separate rules of discovery for general district courts, the lower courts that handle misdemeanor cases.  Specifically, Rule 7C:5 requires the government to turn over only two pieces of information to the defendant:  (1) any statements given by the defendant to the police, and (2) any criminal record of the accused.

Under this rule, defense counsel needs to file a formal request for this information at least 10 days before trial. The information in practice, at least in Fairfax County, is then given to defense counsel orally.  It is not provided until the very morning of trial, during that hubbub of activity right before the judge takes the bench.  And in many cases it is conveyed to defense counsel not by the prosecutor but by the police officer or detective handling the case.

An experienced criminal defense attorney in Fairfax could only laugh when I expressed surprise.  “Yes,” she replied.  “We become impromptu lawyers here in Virginia.  We quickly learn how to try cases while knowing nothing more about the cases than what our clients have told us.”

It is therefore no surprise that so many blue pieces of paper – “guilty pleas” – are handed up to the judge each morning in Fairfax County.  It explains the strange dynamic I have seen between prosecutors and defense lawyers in Virginia courtrooms.  And it accounts for the guidance in the Virginia manual for criminal defense lawyers, reproduced above, suggesting that they make nice with the prosecutors and law enforcement personnel:  Hey, if you are really, really nice to the government people, maybe they will tell you just a little bit more about your case before it goes to trial.

In Philadelphia, I always felt that defense lawyers were on a more even footing with the prosecutors.  There was occasionally a prosecutor who didn’t seem to understand that the discovery rules, by design, favor the defendant.  But he or she could always be set straight, if not by the defense attorney then by the court.

And while the discovery rules are not quite as defense-friendly in D.C., you are dealing with Assistant U.S. Attorneys in D.C. who, if they don’t maintain an open file policy, are in general a pretty darn reasonable bunch of people.

As it is in Virginia, based on my still very limited experience in this jurisdiction, the prosecutors sit at their desk at the bar of the court or in the little room right outside the courtroom and hold court. Hoping for a slight concession or a tiny bit of information about the case to help prepare a defense, the defense attorneys wait in line to pay homage. That’s what happens when you skew the playing field.

{ 10 comments… read them below or add one }

DA Confidential November 9, 2010 at 4:30 pm

Wow Jamison, we do things very differently here. Move to Texas, you’ll be very impressed with our discovery rules! Open file, you get pretty much whatever you want months before trial, copies of videos etc. It’s like a discovery smorgasbord.
In fact, the horror of your situation prompted me to post on the same subject. Thanks for the inspiration. :)

jamison November 9, 2010 at 7:35 pm

I’ve heard only good things about the Texas criminal justice system. And you, Mr. Confidential, seem to be a good case on point. Here is the link:

http://daconfidential.blogspot.com/2010/11/discovery-before-trial.html

I am very envious of any lawyer able to take advantage of your “open file” policy.

Kent November 9, 2010 at 8:50 pm

In my office we provided discovery at the time of arraignment to facilitate plea offers that were made at that time. This works very well for the vast majority of cases that are simple and don’t involve lots of evidence. Oregon’s statute requires reciprocal discovery. That said, defense counsel rarely provided discovery. It was usually a one-way street.

Dan Gross November 10, 2010 at 9:15 am

I’m glad I’m in DC now. South Carolina was by far the most pro government system I have ever seen. First, you must file a motion for all discovery as in VA. The Prosecutor actually schedules all criminal matters so you have ask them to schedule a motion. And this is the best part, you cannot have any motions heard until after a jury has been seated. You pick jurors using their bingo hopper method and then the jury is sent to the jury room and you get a crack at a motion to supress. And on a side note, when your client pleads not guilty, he has to ask to be tried “by God and my country.” Well I guess I should also mention the “Five Day Sight” rule that allows the goverment to withhold the actual indictment from the defense until five days before trial.

Keep fighting the good fight in VA!

jt January 27, 2013 at 3:51 pm

The problem in Virginia is that you can make the motion for discovery and motion to convey the evidence, but it does not mean that the criminal lawyer is going to receive it. You can even set a date for trial, but you may only get the DA’s evidence a few days before the trial if that.

What good are these motions if they are not going to be enforced by the judge? Where is the accountability for the judge and district attorney?

Jamison Koehler January 27, 2013 at 4:04 pm

jt: Amen to that.

keith April 24, 2013 at 3:54 pm

I have lived here is SW Virginia all my life and we have a saying about this state. Virginia the COMMUNIST COMMENWELTH

Lonny Dunn July 13, 2013 at 6:54 pm

Sounds like a situation where Virginia is ripe for a Class Action Lawsuit which is brought to bear on a few key officials, with a few affadavits attached to help certify the class – and Voila! You’ll see some folks scurrying to change the existing Rules of Court, and enforce the laws that are already on the books.

Brent Vincenzes August 14, 2013 at 11:00 am

I am a criminal law attorney practicing in Fairfax County, Virginia, and I agree with many of the points made in this post. Particularly the first sentence of the main post: it is important for defense attorneys to maintain a “friendly and professional relationship” with the police and Commonwealth. Sometimes this conflicts with my aggressive “style,” but it is still possible to be firm AND friendly. As far as the typical discovery procedures (regarding GDC, the day of trial): In my opinion, it is just plain wrong and would argue it is a due process issue directly related to fundamental fairness, justice, and liberty.

Richard D March 5, 2014 at 3:27 pm

Im preparing to defend myaelf in Stafford County Va. Ive had very little interaction with the law or courts.
How can the rules if discovery be so unbalanced, giving the Prosecution full discovery?
How is this considered legal?How can VA trump the liberties guaranteed “due process” &
& Constitutional?

In addition how can VA pass a (unlawful) rule of discovery RULE 7:C5?? THIS IS SIMPLY UNFAIR AND A VIOLATION OF MY CIVIL LIBERTIES, Bill of Rights.

I’m not an attorney but I am disgusted with learning how unjust VA judicial system is set up and NO ONE has challenged this unjust RULE??
IM NOT AN ATTORNEY OR HAVE A LEGAL BACKGROUND, BUT THE 80 HOURS of research/prep for my upcoming “arraignment”. I am going to ask the judge for a continuance to prepare for trial.
I am NOT GUILTY and I be damed if I will simply allow the my case to contribute to all of the Wheels of injustice! It is not lawful its driven by money and greed NOT JUSTICE!

The are so many conflicting laws/rules that are simply unjust it is sickening.

Wish me luck!

PS: Mr. Vincenez I concur with your arguement. So..how can this be ONLY VA ?Because VA is a COMMONWEALTH?

Leave a Comment

Previous post:

Next post: