12 January 2005

No Police Report for YOU!!!

Amanda asked an ancillary question to her presentence report question answered here: "And why are you not allowed a copy of the police report? Do you get to see any portion of it before the trial, or have any idea of what it contains before the prosecutor starts to refer from it?"

Here is the discovery I am allowed by the Rules of the Virginia Supreme Court. It's too big to post in toto but here's the part which keeps me from getting police reports:
3A:11(b)(2) - This subparagraph does not authorize the discovery . . . 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 [expert and medical reports].
As a practical matter this allows any prosecutor who so desires to deny me access to the report. Now, in a number of jurisdictions the prosecutor just turns over a copy as part of an "open file" policy. In others, the prosecutor will read over the report and tell you what he thinks you need to know. In some there is no communication which is not mandated.

What might be in the police report that's mandated? First, there are the statements made by the client. The prosecutor must turn these over to me under 3A:11(b)(1). As well, there is the requirement under Brady that prosecutors disclose evidence which might tend to show that my client is not guilty. However, even assuming that a prosecutor would see eye to eye with me about what is exculpatory the prosecutor can just tell me the information without giving me the report.

Personally, I think the jurisdictions which turn over the police reports operate better. There are no silly little games about what the officer is going to say or what the officer thought happened that night (or at least there are far fewer). If the Rules or the law were to change such that discovery required police reports to be turned over perhaps we could change criminal procedure somewhat and stop requiring so many policemen to come to court every day. As it is all the officers have to come to court for every offense, if for no other reason than the fact that they fill the spot of the police report. Pretty much every day I walk into the courtroom, grab Officer Smith, go out in the hallway, and get him to tell me the information which I could have gotten through the report.

Now, I understand that in some Virginia jurisdictions there is basically a state of open warfare between prosecutors and defense attorneys. I don't practice in any of them but I hear that in some places it is so hard to get any information from the police report that defense attorneys try to get it by suing prosecutors under the Freedom Of Information Act.


Chad said...

In my jurisdiction, we have what could probably be described as an open file policy. I'm not going to let defense attorneys just come in and comb through my files, but I find it's easier to get cases moving and resolved if I provide whatever I'm not expressly forbidden to provide.

I guess the way to describe my office policy (I'm a Commonwealth's Attorney, btw) is this: if there's a question whether the defense might be entitled to the material, we provide it.

Now, that's a general rule, but there are several defense attorneys that we simply can't trust with anything, and we sometimes fight them tooth and nail for everything they get. But with most attorneys, we don't have those problems.


John Jenkins said...

It's good to know that Oklahoma is ahead of someone on this issue. Here, the prosecution is *required* to turn over all police reports.

Mister DA said...

My state is mixed. Very littel in formal discovery is mandated in arraignment court, lots in felony court. As a matter of internal policy dating back to about 1972 we _always_ provide the defense with the police reports - sometime with addresses and phone numbers of victims redacted (there is a bit of a conflict with our victim's rights law that we resolve on a case by case basis)- and everything else that's not truly attorney work product or protected by some statute or another.

As JB and our host note, it works a lot better than the old trial by ambush procedure.

BTW, this tends to be the practice across the state, not just my enlightened corner.

Anonymous said...

I'm quite confused. What kinds of things do these untrustworthy
attorneys do with documents that they should be prevented from having them? I mean, at the moment, I'm imagining something like "It's okay to give a police report to attorney A, but attorney B will do something horrible with it so try not to let him have it."
Except I can't think what the horrible thing would be. Defend his client using information from the documents? I'm not being snide, I'm honestly flummoxed.


Mister DA said...

Oh, give the names and address of the witnesses to the defendant's thuggish friends so they can harass and intimidate those witnesses who dare to show up to testify?[-)

Seriously, we've only had this happen once in the 17 or so years I've been associated with this office. Which is why we don't worry about it. It's mostly a remnant of the good old trial by ambush way of thinking.