However, Virginia's discovery rules do not require anything nearly so accommodating. Rule 3A:11(b) is as follows:
(b) Discovery by the Accused.As is obvious above, there are lots of things which defendants are not entitled to under the rule. No police reports, no witness statements, no witness lists, &cetera. There are a number of prosecutors who don't give a bit of evidence over which is not required by 3A:11.
(1) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph any relevant (i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case, or copies thereof, that are known by the Commonwealth's attorney to be within the possession, custody or control of the Commonwealth.
(2) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph designated books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, that are within the possession, custody, or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. This subparagraph does not authorize the discovery or inspection of statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth or of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case, except as provided in clause (ii) of subparagraph (b)(1) of this Rule.
Of course, Brady still applies and without an open file the prosecutor places himself squarely in the crosshairs when time comes to explain every possible piece of evidence which could have possibly been used in some exculpatory or impeachment manner. Recently federal district court judge Raymond Jackson took a slap at Virginia prosecutors who do not have open file policies and specifically went after two of whom he disapproved.
In describing why the Commonwealth's Attorney's Office does not have an open-file policy, Mr. Smith stated the following at the habeas evidentiary hearing: "I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided." Tr. 110. In effect, Smith admits here that his contempt of defendants who "fabricate a defense" guides his perspective on disclosing information. This is particularly troubling in the case at bar where the record is replete with statements from Smith and Jones regarding the scrutiny and credibility determinations that they made (as opposed to the jury) regarding the relevance of any potential exculpatory evidence. Essentially, in an effort to ensure that no defense would be "fabricated," Smith and Jones' actions served to deprive Greene of any substantive defense in a case where his life would rest on the jury's verdict. The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process. See, e.g., Kyles v. Whitley, 514 U.S. 419, 439-40 (1995) ("Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial's outcome as to destroy confidence in its result. This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence ... [a]nd it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.").The interesting language therein is "[t]he Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process." The question becomes, does this refer to the policy of not having open files or does it refer to the court's finding that the prosecutors in this case failed to ferret out every last possible Brady issue in their file and turn it over?
I don't think it means that only open file policies are constitutional. Alternatively, if the judge did mean it that way, I think he overstepped. The Virginia discovery system is constitutional, it just requires more vigilance on the part of the prosecutor for Brady issues. In that vein, I think this is most likely just a statement the judge is making after having worked himself up into a fervor over his perception of errors and purposeful wrongdoing by the prosecutors.
In the long run, I don't see this as having any real affect on Virginia's discovery rules. To begin with, it carries no precedential weight. As well, like most habeas findings, it is likely to be overturned on appeal (not speaking of merits here, just statistical likelihood).
1 Yes, I realize this may have to be done eventually, but initially it should not be made available.