Sunday, September 9, 2018

Virginia mandates prosecutors turn over investigative information to defense

For defendants facing a criminal trial in Virginia, there is no requirement that prosecutors provide any police reports, witness statements or a witness list to the defense team. Some prosecutors do it anyway; some do not, reported the Washington Post.
But, following years of study and debate, the state Supreme Court will soon mandate that prosecutors share details of their case with the accused. In an order issued Wednesday, the court changed Virginia’s rules of criminal procedure to require commonwealth’s attorneys to allow defendants to review — but not copy — all relevant police reports in a case and all witness statements. Those reports and statements were specifically excluded from pretrial discovery.
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.
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