After considering for years whether to revise its criminal procedure rules to broaden defendants’ access to information that will be used to prosecute them, the Virginia Supreme Court has decided to expand defendants’ pre-trial access to prosecutors’ evidence.

An order issued September 5 by the top state court will require state prosecutors (known locally as commonwealth’s attorneys) to let criminal defendant review witness statements and police reports intended to be part of the prosecution case.

Before the change, since such evidence was explicitly exempted from pre-trial discovery, commonwealth’s attorneys were under no legal obligation to share such evidence with defendants or their lawyers. Independently, each prosecution office was left free to decide whether it would or would not provide that information, there was no consistent statewide practice, although prosecutors have previously estimated about two-thirds of them furnish access to such data (adding that smaller or more rural offices are less likely to do so).

The new rule will allow defendants and defense legal teams to review, but not to copy, the material. Also, prosecutors will also have to provide defendants and their lawyers with a list of witnesses expected to testify at a trial or sentencing hearing; for the protection of the witnesses, their addresses or other identifying data could be withheld at the request of either side, if a judge approves.

Another change made by the high court order deals with expert witnesses. Prosecutors who plan to use expert witnesses will be required to disclose their experts’ identities and qualifications, as well as outline their expected testimony. That has long been required in civil trials in the state, but was not previously the rule for criminal trials. And for the first time, the new order will require defendants to provide prosecutors with a list of defense witnesses.

The new order will not take effect until July, in order to give the state legislature, which adjourned in mid-March, time to consider whether to decide if it wants to provide state prosecutors with additional funding, to offset the increased costs of complying with the new order or for processing footage from police body cameras.

Some task forces and commissions have been studying Virginia’s discovery procedures for several decades. In 2015, a state task force made recommendations very similar to those in the new order, but the Virginia Supreme Court refused to adopt them, with little explanation. At that time, Virginia was one of only eight states which did not require prosecutors to furnish defendants with a witness list. In 2004, the American Bar Association ranked Virginia dead last among the states in the procedural protections provided to criminal defendants.

In an interview with the Washington Post, the Virginia Supreme Court’s chief justice called the changes in the new order “long overdue,” and noted that the state legislature had tried, but failed, in its two most recent sessions to resolve the issue. Instead, a 13-member task force of the state bar association tackled the issue, taking comments from all sides and coming up with the proposal adopted by the top state court.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).