Open File Discovery in Virginia Criminal Cases Goes Statewide!

Yes, that’s correct, criminal justice reform in Virginia has taken another big step. Defense attorneys in all counties across Virginia will now receive open file discovery.

But first, what is discovery? Discovery in the criminal justice context is the process or investigation of the evidence the prosecution has in their possession that they intend to use in their case against the defendant. It generally includes the arresting officer’s reports, witness statements, and any other pieces of evidence that can either help the prosecution’s case (inculpatory evidence) or weaken their case (exculpatory evidence) by showing that the defendant is not guilty. The discovery process is intended to prevent any surprises at trial and potentially enable the prosecution and the defense to reach an outside resolution due to the way the evidence can be presented in court and interpreted by a judge or jury.

It seems fair that the defense should get all those things, yet, not all counties provide open file discovery at the direction of their Commonwealth Attorney (CA) – Virginia’s version of the District Attorney (DA) – who is the top prosecutor of each county. They are elected every 4 years in the state’s general election and implement some very important guidelines for how their office will prosecute cases. Some CAs make it difficult for the defense to procure basic information about a case so that the defense attorney cannot effectively prepare his case. Some CAs even try to withhold discovery by legally making objections to defense requests or motions in court where we implore the judge to make them show what evidence they have.

Well, no more. No more making the accused and her attorney wait or sharing the bare minimum and using such tactics to coerce unpleasant deals and ensuring convictions. Starting July 1, 2020, Virginia will have Open File Discovery. The new rules will require the prosecutor to provide defense attorneys with everything in their file on the defendant. We will now receive copies of police reports, statements by witnesses and lists of witnesses so that the defense knows what the prosecutor knows.

There are many other new laws associated with the open file discovery that may benefit individuals who are charged with a crime. We will be sure to post a list of all new changes that go into effect next week. Will the changes be in the interest of justice as hoped for? Again, only time will tell.