20 August 2005

How to Get Your Client's Record in Virginia

One of the first thing I learned is that my clients will not be able to tell me what is on their records. Sometimes there's too much to remember, sometimes things were too distant in the past, and many they didn't understand exactly what was going on and know they were convicted but not exactly what for.

So, I always want to get a copy of my client's record. I file a discovery request pursuant to the Rules. What do I get back? Well, that varies.

The District Court Rules requires that I be allowed to "inspect and copy or photograph . . . (2) any criminal record of the accused." The circuit court rules aren't as specific but allow me to "inspect and copy or photograph . . . papers . . . upon a showing that the items sought may be material to the preparation of the defense and that the request is reasonable."

Some jurisdictions give me the record which they print out from the computer hook up all prosecutors have to the State Police. Others paraphrase it and deliver me a copy of the paraphrase. One jurisdiction makes me come to the office and hand you a copy of the record to let you copy whatever you like by hand. The last two are problematic. What if the record is long and something is missed? These records are often long and complicated, even when the prior convictions are all from Virginia. When there are convictions from another State there can be all sorts of problems. Records from different States are entered differently and without time to get it figured out (perhaps even by calling someone in another State) can lead to the noting of the same conviction twice or not noting something because it doesn't appear a conviction occurred. Sitting down and hand copying invites error.

So why are there jurisdictions play silly games with the client's record? Well, the reason I've been given is that the State Police tell them they cannot give copies to defense attorneys and the State Police come by and check. If the prosecutors don't do what they are doing the State Police will disconnect them from the database (yeah, I'm skeptical about that too).

Anyway, a while back another defense attorney and I were talking about this and he pointed out that there is a way that I can actually get the unadulterated record:
§ 19.2-389. Dissemination of criminal history record information.

A. Criminal history record information shall be disseminated, whether directly or through an intermediary, only to:
. . . .
33. Other entities as otherwise provided by law.

Upon an ex parte motion of a defendant in a felony case and upon the showing that the records requested may be relevant to such case, the court shall enter an order requiring the Central Criminal Records Exchange to furnish the defendant, as soon as practicable, copies of any records of persons designated in the order on whom a report has been made under the provisions of this chapter.
I never knew that law existed and I've never seen anyone use it. Why is the whole process so ridiculous? Probably because defense attorneys have about as much pull in the General Assembly as left-handed, red-headed step children.

1 comment:

FrontierLawStudent said...

I totally agree with you! Defense attorneys should be able to request a criminal history from any agency associated with the process (Comm. Atty., Pre-Trial, Local Probation, etc.). Ken, I hope you remember that I tried my best to help the defense attorneys when I was with Pre-Trial... and I do remember the annual and "unannounced" review/inspections of the VCIN terminals at our office and the Comm. Atty's.