Discovery reform

[Update: In September of 2018, the Supreme Court of Virginia announced that it had approved proposed changes to the criminal discovery rules, mandating that defendants receive access to police reports and other discovery materials. For a recap on the new rules and their effect, click here].

“Criminal discovery” refers to the disclosure of information about a case by the government to a defendant. It is an essential due process safeguard, providing an accused notice of his charge and information essential to prepare his defense. Virginia’s criminal discovery rules happen to be among the most outdated and restrictive in the country: “The current rules for criminal discovery in Virginia were first adopted in 1972. The rules do not require pretrial disclosure of witness statements, a list of witnesses, or police investigative reports.” D. Ramseur, A Call for Justice: Virginia’s Need for Criminal Discovery Reform. That’s right: not even the names of witnesses or the report of the investigating officer. You have a right to more information if you’re sued for money than if you are charged with a crime—far more, in fact.

The need for criminal discovery reform in Virginia is nothing new. In fact it has been foremost on the agenda of reform advocates for over a decade. This has included the Virginia Supreme Court, which established a Special Committee on Criminal Discovery to examine the rules and advise the court of any changes that should be implemented. That committee produced findings in 2014 which were reviewed, approved, and garnered widespread support, but ultimately rejected, “summarily and without explanation.”

Most recently, in 2017, discovery reform yet again found itself one step from becoming a reality. In February 2017, SB 1563, providing for a modest expansion of a defendant’s discovery rights, passed by a 36-1 vote in the Virginia Senate, only to be killed in the House of Delegates Courts of Justice Committee.

Why is reform important? Because without mandated discovery, Virginia defendants routinely find themselves facing “trial by ambush,” creating risks of “miscarriages of justice [that] are too great.” Washington Post, “Virginia Supreme Court Should Revisit Pretrial Disclosure Rules” (Jan. 2, 2013).