What are my rights to discovery in a criminal case in Virginia?

If you have been charged with a crime, you have the right to certain kinds of evidence and other information before your scheduled trial. These materials are known as discovery. Each state has its own rules on what discovery must be provided by the prosecution and the defense. Unfortunately, Virginia’s rules on disclosing evidence favors the prosecutor. However, even with the limitations on what you can obtain through the discovery process, receiving and reviewing any information that you can obtain from the prosecutor is essential to building a strong defense.

What Are Your Rights to Discovery in Virginia?

Discovery is the process by which defendants find out about the prosecutor’s case against them. This information can be crucial for a criminal defense attorney to build a strong defense to the charges and to help the person charged with the crime decide whether entering into a plea agreement is in his interests. Discovery is an ongoing obligation. If you are a defendant in a criminal proceeding, the prosecution has a duty to provide you with the following:

  • Any statement made by you
  • Your prior criminal history
  • Information on any expert witnesses the prosecution intends to use at trial
  • The results of any scientific tests performed
  • Books, papers, documents, photographs, and other tangible evidence that the prosecutor has and that is material to your case
  • Exculpatory evidence

The prosecutor has no duty to disclose his strategies, legal theories, and notes regarding your criminal case. This is known as his work product and is not required to be provided to you. Discovery is now reciprocal, which means that you as a criminal defendant have obligations to disclose certain information to the prosecutor. In general, the information that you are required to share is similar to what the prosecutor must provide to you.

What Is Exculpatory Evidence?

Under the U.S. Constitution, the prosecutor is required to provide the defendant’s attorney with any exculpatory evidence in his possession or control. This is known as Brady information and is named after a famous U.S. Supreme Court case that established the requirement that the prosecution turn over exculpatory evidence. It is usually defined as evidence that tends to dispute the defendant’s guilt or would suggest a lesser punishment. In addition, the evidence does not have to strongly suggest innocence. It must be provided if it provides significant aid to the defendant’s case, including providing any doubt as to the defendant’s guilt.

In order to ensure that they receive this required information, criminal defense attorneys often formally request this evidence in a written request or motion early on in the criminal proceeding. In addition, the attorney may interview other parties that could be aware of other exculpatory evidence.

If there are Brady violations by the prosecutor, the court could overturn a conviction and set a new trial date. The judge is more likely to find a violation if the defense counsel made a written request for the information. This is one reason a thorough discovery is so important to a defendant’s defense.

Special Rules Regarding Discovery in Misdemeanor Cases

In district courts in Virginia, which is where misdemeanor criminal cases are heard, there are special rules regarding discovery. The prosecutor is only required to provide the following information:

  • Any statement that the defendant has given to the police
  • The defendant’s criminal record

Under this rule, criminal defense attorneys must make a formal request for this information at least 10 days before the trial date. In some instances, the prosecutor may not provide it until the morning of the trial.

In the Commonwealth of Virginia, the discovery process can be slightly different depending on the jurisdiction where a criminal case is being heard. Different prosecutors can have a different interpretation of what they are required to disclose. In addition, having an experienced criminal defense attorney who has experience working with the prosecutor can make the discovery process in your case go more smoothly.

At Greenspun Shapiro PC, our criminal defense attorneys have over 100 years of combined experience handling criminal cases for our clients, fighting for their rights, and working with prosecutors in many jurisdictions. If you are facing criminal charges, do not delay in scheduling your free consultation. Start an online chat today to schedule your appointment.