16 July 2013

New Discovery Rule in Virgina?
Flaws and Fixes

For as long as I have been practicing law in Virginia the big fight in criminal discovery has been over police reports. The defense Bar has lost this fight over and over again arguing everything from the Constitution to FOIA. Now they are trying to get the Virginia Supreme Court to change the Rule.

Virginia's discovery is limited. The prosecution doesn't have to tell the defendant the names of its witnesses or give the defense any statements made by anyone other than the defendant himself. Of course, the police report is the Holy Grail for this information since most reports have the name, address, phone number, and statement of each witness. It's also a wonderful tool for use in impeaching the officer. "Officer Smith, on page 32 of your report you state the purse was dark blue and today you've told the jury it was black. Which was it? Why should the jury believe anything else you've said if you aren't being truthful about this?"

All that said, in the vast majority of cases it would not matter if the defendant was given the police report. In most minor felonies - larceny, writing bad checks, embezzlement, malicious wounding, possession of drugs, etc. - an "open file" policy makes life easier all around and may lead to cases settling more quickly.  However, there are a number of cases where this is not the case and herein lies the failure in the proposed rule.
Proposed 3A:11(b)(4) - For good cause shown and pursuant to a protective order entered by a court, the Commonwealth may redact the identity and address or other similar identifying information of a witness when necessary to protect the safety of that witness or his or her family.
There are only two ways in which this can work. First, the Commonwealth Attorney can get the judge to sign a standing order allowing the prosecutor, at his discretion, to decide when to withhold this information. Second, the prosecutor would be allowed to have ex parte hearings with the judge. If the prosecutor has to provide this information in open court, with the defendant present, what's the point since the defendant will probably hear enough to identify the witness anyway?  The problem is, I don't think that Proposed 3A:11(b)(4) allows either of these and if I don't I'm sure those of you in the defense bar surely do not.

Here's a better example of what this subsection of the Rule should read like:
 3A:11(b)(4) - (i) The Commonwealth Attorney, or a designated deputy, may redact information from any report or statement when such information would endanger a person or harm an ongoing investigation. A letter notifying the Court that redaction has occurred shall be entered into the Court's file and copied to the defendant.  

(ii) A defendant may challenge the redaction. Upon challenge the defendant shall argue his case to the Court. Thereafter, the Court shall have an ex parte hearing with the Commonwealth in which the Commonwealth must justify its redaction.

(iii)  This shall not relieve the Commonwealth of the duty to make any constitutionally required disclosures.
Something like this would allow open discovery in most cases and provide a workable solution for those cases in which open discovery would be deleterious. Of course, it will therefore leave everyone unhappy. Too many people - on both sides of the aisle - view what we do as a war wherein we must destroy the enemy and craft rules and laws to our advantage and their disadvantage rather than a contest to determine truth as best we can. The Rule as currently written favors prosecutors. The Rule as proposed favors defendants. The Rule as I have laid out above is more of a middle way, fairer to both sides.


Wade said...

Are there any good reasons for refusing to allow defense counsel to have information about witnesses in a pending case? In my discussions/arguments with prosecutors, they usually whine about the possibility of harassment/intimidation, but they can never cite any instances where counsel have engaged in that behavior. Since there are usually bail conditions and statutes protecting witnesses from harassment and intimidation by defendants (or their agents), why do prosecutors need to subvert justice by hiding information from the defense? Doesn't hiding witness information from the defense prevent a full and complete confrontation of the witnesses as required by the Constitution? (as written, not as amended by the Supreme Court)

I don't like either iteration of the proposed rule. A better solution would be to simply allow for the same discovery in criminal cases that is available in civil cases, only with strict enforcement of the limits on the lengths and numbers of interrogatories and depositions. I've been practicing criminal law for about eight years now, and I still don't understand why we allow for more thorough discovery and confrontation in small claims civil cases than we do in criminal cases where the government is trying to throw a person in prison.

Ken Lammers said...

[ Sorry, I removed this part of my comment as inappropriately potentially identifying individual(s) ]

HOWEVER, call me pollyannaish, but I still choose to believe that 99% of defense counsel play by the rules. I don't think they would personally go out of bounds. Still, it is my understanding of the ethics rules that a defense attorney is an agent of his client and therefore required to give every bit of information he receives to his client. Call your Bar ethics advisor; I'll bet he tells you the same thing. And wouldn't it also be malpractice if a defense attorney didn't talk with his client about the named witnesses against him?

Sure, there are bail conditions and statutes that supposedly protect witnesses. That's a paper protection against someone I believe to have already committed a crime and whom I may believe capable of committing another. Do I think this applies to your basic shoplifter or guy caught with some cocaine in his pocket? No. However, I get more concerned when there appears to be an organized group involved, or the initial crime was violent, or the defendant is facing a substantial portion of his life in prison.

Look, every prosecutor in the world can point to cases wherein witnesses are harassed. A common occurrence of this is in domestic violence cases wherein the whole family comes down on Mary for that charge she took out on Bob for hitting her. There are also issues with the names of witnesses getting posted on electronic bulletin boards by unnamed persons. These things happen in relatively minor cases. Imagine what goes on in more serious cases. In fact, if you know, and are trusted by, a prosecutor who handles cases above basic felony level go ask what they know and strongly suspect has happened in those cases.

As I said above, my version of the rule would not make the all-or-nothing people on either side of the aisle happy. Instead, it's just meant to provide broad discovery in the great majority of cases while reserving protections for those few cases which need it.

Anonymous said...

Ken, At the end of your post, you write "Too many people - on both sides of the aisle - view what we do as a war wherein we must destroy the enemy and craft rules and laws to our advantage and their disadvantage rather than a contest to determine truth as best we can."

As a crim defense lawyer, I agree that some prosecutors and defense lawyers are mean, unprofessional, etc.. But, the role of each side is different. As VA ethics rules state, a prosecutor is a 'minister of justice.' In contrast, as a defense lawyer, I am an advocate for my accused client.

For the sake of morality, the goal of truth-seeking is good. But in the criminal justice system, the defense ought not be primarily focused on 'a contest to determine truth.' The role of the defense is to hold the government to its burden and to raise all valid legal arguments as provided by law. For example, the Commonwealth may have good cause to think 'X stole the car.' Thus, the Commonwealth's goal is to try to show in court with admissible evidence any truth to this assertion. In contrast, a defense lawyer may put on no evidence, argue doubt about the Commonwealth's evidence, and get a 'not guilty,' even if the defense lawyer knows his client X stole the car.

Ken Lammers said...

Anon: Sorry, that was an oversimplification on my part. In an individual case you are absolutely correct.

I was more referring to a phenomenon I have seen over and over again through the years wherein lawyers from either side push - through the Bar, the legislature, the Supreme Court's Rules, etc. - to hobble the other side.

Anonymous said...

I agree. Of course every business, advocacy group, interest group, etc. has lobbyists who push for laws and reg's to hobble the 'other side.' However, in the criminal justice arena, you make a fair point calling for more enlightened reform/ modification of laws. Criminal justice ought not be a field of competition to beat down the other side. It's disheartening when certain actors in the criminal justice field (whether lawyers, prosecutors, judges, police) seem to disregard this. If I could wave a magic wand, it'd be nice to have some wise philosopher policy-maker dudes, like Plato envisioned.