Currently the Supreme Court of Virginia is considering proposed amendments to Rule 3A:11 which would allow defense attorneys complete access to police reports, witness statements, which would include names and addresses, and forensic video interviews.
The Virginia State Bar’s Indigent Defense Task Force has asked the court for policies governing discovery, the formal process by which the defense and prosecutors exchange information, to be overhauled.
Louisa County Commonwealth’s Attorney Rusty McGuire and law enforcement in Louisa County have expressed concerns about the proposed changes, while others fully support the proposed changes.
According to defense attorney Jack Maus, the proposed rule would not give defense attorneys full disclosure of everything the prosecution knows.
The proposed rule under discovery and inspection states, upon a written motion of an accused, a court shall order the Commonwealth’s attorney to permit the accused to inspect, copy or photograph designated books, police reports, papers, recordings…
Essentially, Maus said, the defense would have to show that it [police report] may be material to the preparation of the defense and that the request is reasonable.
“I think Virginia has one of the most restrictive discovery rules around,” defense attorney Stephen Harris said. “It’s very bare bones,”
Defense attorney Richard Harry said he believes receiving exculpatory information is a joke, because if the prosecutor doesn’t believe it supports a conviction, it is extremely easy to overlook the information and ‘Who will ever know the better?’
“All taxpayers pay for the police to investigate crimes,” Harry said. “Why shouldn’t the accused get the benefit of knowing what the police know and report.”
According to McGuire, the commonwealth’s attorney’s office currently has an open-file discovery. Defense attorneys can look at the file, but are not allowed to obtain copies, make notes or record information from the file.
Not all Louisa defense attorneys agree. According to Harris and Maus, McGuire gives a “thumb-nail sketch” of the file.
Maus said it’s difficult to determine what part of the police report McGuire is reading from, and if he wants to call that open file, he could, but to Maus it really is not.
“I think they [defense attorneys] should know their [witnesses] names,” Harris said.
Harris said he likes to know who the witnesses are and what they are expected to say. He also prefers being able to draw his own conclusions from the facts.
“I think the court would be very appropriate in saying hide and conceal the identifying information [of the witnesses] other than the name,” Harris said.
According to Maus, the commonwealth could manufacture problems with releasing information, because they like the rule the way it is.
“They are at the high end of an un-level playing field and they want to keep it that way,” Maus said.
To back his point on a defendant knowing the state’s witnesses, McGuire cited the 2012 case of Markus Houchens.
When Houchens learned who the witnesses were, he threatened to kill two of them. He wrote letters to family members telling them these two witnesses needed to die.
When he was unable to have the witnesses harmed, he enlisted family and friends to commit perjury in court. Due to the vigilance of the commonwealth’s attorney’s office, these potential witnesses were arrested on the day of the trial, while search warrants were executed and letters from Houchens were found detailing what they needed to testify to in court.
To read the entire story, see the June 13 edition of The Central Virginian.