Is the Third Time a Charm for Discovery Reform in Virginia?
It is a simple question, and it is possible for it to have a simple answer. Should a criminal defendant and the defendant’s attorney have the opportunity to know all of the evidence against him or her before trial? Maybe you thought defendants already did. In Virginia, you would be wrong.
The Task Force for Discovery Reform:
In April of last year, a Virginia State Bar task force was formed to take up the cause of discovery reform. As the Virginia Association of Criminal Defense Lawyers pointed out, this was not the first time that this kind of reform has been attempted. Hopefully, it can be the last.
Earlier this month, the results of the task force were announced. The Virginia Supreme Court is seeking public comments on the results and will do so until June 1. After that, they will decide whether or not to rule on the matter.
The Discovery Reform Task Force’s Proposal:
According to one news report, “the proposed changes would require both sides to exchange witness lists and expert reports and permit the defense to read, but not copy, police reports.” This prevention from copying ensures that official reports stay out of public sight – like on social media, for instance. Meanwhile, defendants still obtain access to them.
Until now, Commonwealth’s Attorneys have not been legally required to share these things, subject to some minor exceptions. It should be noted that some share this information anyway, and they are to be praised for that. Without the legal requirement, however, some do not. When that occurs, it allows for what one prominent University of Richmond law professor and member of the task force calls “trial by ambush.”
Will Discovery Reform Occur?
We can only hope. Many states already have the kind of discovery process that Virginia is seeking now that this task force’s work is complete. The right to a fair trial has to include a defendant’s ability to know how to defend himself or herself. That is a logical and warranted expectation.
Whether or not this actually occurs depends on the Virginia Supreme Court. They have denied two previous attempts at discovery reform, but hope has been renewed in this latest task force’s compromises. Time will tell if this will result in the positive improvement that Virginia’s criminal justice system needs.
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