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Criminal discovery reform again.

Byline: Peter Vieth

The latest study of Virginia criminal discovery rules produced a fresh report just in time to forestall a legislative rewrite effort this month. Once again, a multi-discipline group is recommending defense access to police reports. The next move is up to the Supreme Court of Virginia. The Virginia State Bars Criminal Discovery Reform Task Force unanimously approved amendments to two court rules Dec. 4. The proposed changes, including police report access, are to be submitted this spring to the Supreme Courts advisory committee on rules of practice and procedure. The 13-member task force was chaired by Court of Appeals Judge Robert J. Humphreys. The amendments would authorize judges to allow defense lawyers to inspect and review police reports. Nothing in this rule requires the Commonwealth provide the accused with copies of the relevant law enforcement reports, Rule 3A:11(b)(1) would say. The VSB panel also urged the reciprocal exchange of witness lists by defense counsel and prosecutors and recommended that defense counsel provide expert witness information, as now required of prosecutors. Other changes are intended to add protections against exposure of victims and witnesses. The proposed rule amendments are available through the VSBs website at Initial comments indicated not all observers are fully on board. Legislation shelved The panels recommendations led the General Assembly to postpone work on its own package of rule revisions. Sen. Bill Stanley, R-Moneta, agreed Jan. 17 to have his criminal discovery bill set aside until next year. He told fellow legislators the VSB task force proposal captures a lot of what were doing in this discovery reform bill. In the House, a subcommittee on Jan. 22 recommended killing a companion bill offered by Del. Jennifer Carroll Foy, an Arlington County public defender. Its really very impressive what that commission did, Stanley told colleagues. He cautioned that he would return to the task if the Supreme Court did not address the discovery issue. If the Supreme Court fails to act, then the legislature will be forced to act, Stanley said. Prosecutor resistance With the task force, a key dispute over language governing police report access and related issues was negotiated through private meetings between Alexandria Commonwealths Attorney Bryan L. Porter and Capital Defender Douglas A. Ramseur of Richmond. Ramseur was hopeful the plan would meet with approval from the court. Porter deferred on any immediate substantive comment, and one prosecutor expressed reservations. Fairfax County Commonwealths Attorney Ray Morrogh said his office discloses police reports to defense counsel, but redacts information that might invade the privacy of civilians or good Samaritans who cooperate with police, unless the information is exculpatory, might lead to exculpatory evidence or has evidentiary value. This rule will limit our ability to do so, Morrogh said. Prince William County Commonwealths Attorney Paul Ebert did not respond to a request for comment. Virginia Beach Commonwealths Attorney Colin D. Stolle declined to comment. Ramseur hoped prosecutors would get behind the compromise proposal. In a Jan. 24 interview, he said he expected quibbles from both sides of criminal practice. That, to me, is a great sign of well-balanced proposal, he said. It is my hope that the commonwealths attorneys and the Virginia Association of Commonwealths Attorneys as an organization will see that this is a well-balanced proposal that addresses many of the concerns that have been voiced for a long time, Ramseur said. Restricted material Ramseur said the proposal addresses several different concerns. It allows defense lawyers to know what the evidence is and allows both sides to know who the witnesses will be, he said. It provides stringent and redundant protection against witness identification and addresses the workload increase for prosecutors offices, Ramseur said. A novel idea in the proposal creates a category of restricted dissemination material for disclosure to a defense attorney or defense agents and experts. The defense lawyer could describe the content to the defendant or allow the defendant to view the content, but could not provide copies. In Ramseurs words, It can be referred to, shown to them They just cant get a copy of it. The special category is designed to address concern about witness identification, Ramseur said. Third effort The criminal discovery reform movement lurched through an initial effort that fizzled in 2013, leading to calls for a more balanced study. A 23-member interdisciplinary group chaired by retired Loudoun County Circuit Judge Thomas D. Horne crafted a compromise rejected by the Supreme Court in 2015. The proposal from the Humphreys-led task force is not unlike that presented by the Horne commission, Ramseur said. The broad strokes are the same, he said. When the Supreme Court declined to adopt the Horne panels recommendation, Chief Justice Donald W. Lemons said a more incremental approach might be acceptable to the court. In April, then-VSB president Michael W. Robinson appointed the Humphreys task force to try once more.

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Title Annotation:Virginia
Author:Vieth, Peter
Publication:Virginia Lawyers Weekly
Date:Jan 29, 2018
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