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.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.
(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.