09 November 2010

Discovering Discovery in Virginia

A lawyer experienced in practicing in a State where discovery rules and agreements favor the defendants:
The Virginia Supreme Court has also set out separate rules of discovery for general district courts, the lower courts that handle misdemeanor cases. Specifically, Rule 7C:5 requires the government to turn over only two pieces of information to the defendant: (1) any statements given by the defendant to the police, and (2) any criminal record of the accused.

Under this rule, defense counsel needs to file a formal request for this information at least 10 days before trial. The information in practice, at least in Fairfax County, is then given to defense counsel orally. It is not provided until the very morning of trial, during that hubbub of activity right before the judge takes the bench. And in many cases it is conveyed to defense counsel not by the prosecutor but by the police officer or detective handling the case.
This is basically true. In misdemeanor cases in most of the courtrooms where I've practiced in Virginia neither side does much actual discovery prior to the court date. Usually, both sides learn their cases from the officer involved on the day of court. Of course, as always, there are exceptional cases where certain misdemeanors get attention prior to the court date. Usually, these cases are ones in which the defense attorney has taken an extra step to bring the case into the limelight.

Most of the time this happens when the defense attorney contacts the Commonwealth Attorney prosecuting the case before the trial date and asks for the information he is entitled to. A personal contact a week or two before can work wonders as long as the defense attorney doesn't do it for every single case (don't call on every single driving suspended).

Of course, there are always going to be jurisdictions where the prosecutors and police are too busy to be informally helpful. And, there will also be jurisdictions where the relationship between the prosecutors and the defense bar is so bad that the informal approach is not available. In these cases there are formal options.

In most jurisdictions merely filing a discovery motion is enough to trigger a response from the Commonwealth and to get the judge to grant a continuance for lack of compliance with discovery. However, this is not technically correct because the judge never entered a formal order. If there is no other way to get discovery, the defendant can file the motion with the judge and the prosecution and then get in front of the judge (with a prosecutor present) and get the judge to sign an order requiring the prosecutor to send the defendant discovery. Doing that won't make the defense attorney any friends, but if he has to go that far to get discovery that boat has probably already sailed.

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