In September 2018, the Virginia Supreme Court finally approved new discovery requirements for Commonwealth Attorneys and defense attorneys alike. The new rules will affect Circuit Court criminal cases by expanding discovery for both sides. For the accused, the new rules now give access to 1) police reports, 2) witnesses’ statements, 3) expert witnesses’ opinions even when no report is prepared, and, 4) a witness list and contact information for witnesses expected to testify for the Commonwealth. None of these things were previously required to be disclosed under the existing discovery rules.
New discovery rules similar to those passed have been the subject of discussion for a number of years. In the past five years, the Supreme Court of Virginia has considered changing criminal discovery procedures three times. However, it only passed the new rules in 2018 despite support from the joint task force comprised of criminal defense attorneys, prosecutors, and others in the past. This reform was long overdue in Virginia because most other states have much more expansive criminal discovery rules.
Defense attorneys and supporters of criminal justice reform in Virginia were excited that these new rules would bring fairness to criminal proceedings and reduce the likelihood of a trial by ambush. The new rules were set to go into effect on July 1, 2019. However, criminal discovery reform has been delayed as of January 29, 2019, when the Supreme Court of Virginia issued an order delaying the effective date of the rules until July 1, 2020.
The Supreme Court of Virginia gave this reasoning in support of its move: “Having received requests from the chairs of the Senate Finance Committee and the House Appropriations Committee to delay the effective date of the criminal discovery rules to allow further assessment of this significant issue [referring to the “additional responsibilities upon the Commonwealth’s Attorneys” to assess body camera footage], the Court agreed to postpone the effective date of the rules until July 1, 2020.” Letter from Chief Justice Lemons.
What’s odd about this delay is that this is not a new issue and was known in or before September 2018. More importantly, Chief Justice Lemons noted in his January 2019 letter that the body camera footage issues are separate and apart from the new discovery rules. Nevertheless, this additional investigation leaves the door open to the possibility of the new rules not going into effect if the Supreme Court of Virginia finds that the burden imposed by bodycam footage (which is not required by law and is not used by every law enforcement agency) is so high that it would impact prosecutor’s ability to comply with these new rules.
For now, criminal justice reform, which is “overdue” in Virginia according to Chief Justice Lemons, is delayed for another year. But as the law acknowledges, “justice delayed is justice denied.” Criminal discovery reform in Virginia has needed to happen for a long time, and this additional year of delay makes the injustice suffered by criminal defendants all the more palpable. Let’s hope that the rules take effect in 2020 as currently planned.