Discovery Laws in Virginia
The following is information on the discovery rule in VA and how it impacts the defense side investigation for your criminal case. To learn more about discovery or to discuss your case, call and schedule a consultation with a Virginia criminal defense attorney today.
Discovery in Virginia
The discovery rule in Virginia is very limited, especially compared with other neighboring states. In Virginia, discovery rules are governed by the statute and constitutional laws. The most on point constitutional law or constitutional case regarding discovery is Brady vs. Maryland. The Rules of the Virginia Supreme Court (pdf) are compliant with Brady, but they only require that the Commonwealth shares certain information. As for this information, it includes anything that is exculpatory and tends to disprove guilt and improve innocence, statements, recordings or videos of the accused, as well as the accused’s criminal history.
Other states, notably Maryland, make defendants entitled to a lot bigger piece of information, including certain police reports and certain other writings. Virginia is more limited. The reason is, in Virginia, studies have suggested that standard discovery rules are appropriate but at this point the Virginia Supreme Court has resisted expanding the Virginia discovery rule. However, it is important for an experienced criminal defense attorney to know how the Virginia discovery rules impact their case and how the Virginia discovery rules are interpreted by the local jurisdiction.
Each local Commonwealth Attorney’s office has a little bit different understanding of how they apply discovery in misdemeanor cases, in felony cases and in certain serious felony cases. These rules may differ from case to case and sometimes even from prosecutor to prosecutor. It is important to know who you are dealing with and where you are dealing with them in order to come to grips with what discovery will mean for your client in their case.
Brady Information in Virginia Criminal Cases
Brady Information is also known as exculpatory information. This is information that tends to disprove guilt and improve innocence. Brady Information is a tough concept for both prosecutors and defense attorneys alike. The reason it is a tough concept is because it is the role of the prosecutor to identify what information is subject to Brady and provide that to the defense attorneys. However, prosecutors are often limited in identifying Brady materials because it may be information that is simply not known to them. This may not be known to them simply because they didn’t adequately research the file or, in many cases, because it wasn’t in the police reports.
Prosecutors must be vigilant about going through police reports, talking with witnesses and following up on their own investigations in order to figure out what information they must turn over to the defense counsel. Likewise, defense counsel must be vigilant and not necessarily trust the information they get from the prosecutors, but rather do their own independent investigations of the facts to find out what information is out there and how it may result in Brady material.