Sunday, February 17, 2013
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Point/Counterpoint: The current rule is fair, favoring neither side

Doucette is commonwealth's attorney for Lynchburg and president of the Virginia Association of Commonwealth's Attorneys.

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In our weekly Point/Counterpoint feature, we invite knowledgeable people (usually two) to express their views on a current topic. After reading each other's columns, our guests then write rebuttals on the RoundTable blog, where readers can join in the conversation.

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The current rule is fair, favoring neither side

A proposed discovery rule by Virginia defense attorneys is a radical and unnecessary departure from long-standing criminal practice. Such a drastic proposal involves policy considerations that are more appropriately considered by the General Assembly or the Virginia Supreme Court. Neither body has promoted the idea of such a comprehensive change to the current rule.

Historically, pre-trial disclosure to criminal defendants proceeds via two distinct legal tracks.

Track one is rule driven (3A:11) and is based upon policy concerns about the administration of justice in criminal cases. This policy takes into account the very different goals of criminal prosecution versus civil litigation. Justice in criminal cases means that the guilty are apprehended and punished for their crimes.

The policy that undergirds rule 3A:11 is that Virginia's justice system will provide fairness, but not favor, to a criminal defendant. The redraft of 3A:11 written by defense attorneys seeks a favorable rule of practice rather than a fair rule. When such a rule becomes favorable to a criminal defendant, it becomes unfair to law-abiding society.

Track two is based upon constitutional due process requirements arising out of U.S. Supreme Court cases. For 50 years, these cases have required pretrial disclosure of all exculpatory evidence, which is evidence favorable to the defendant. But this requirement flows from the Constitution rather than a rule. The Constitution sets the floor of fairness, whereas a policy-based discovery rule may either be substantially level with such floor, or it may provide greater disclosure.

The Virginia rule already provides a higher level of disclosure, which is not constitutionally required, but nonetheless, deemed to be fair. The defense bar now seeks to have Virginia's rule redesigned to be one of favor to their clients rather than the rule that has been fair for 50 years. This rule change would provide more information to the defendant but not to the prosecution.

The proposed version of 3A:11 is based upon the assumption that there is a need for sweeping liberalization of rule-based discovery. But the examples cited are instances where the prosecutor failed to live up to his already existing constitutional duty to disclose exculpatory evidence. No group abhors the actions of rogue prosecutors like Mike Nifong (the Duke Lacrosse case) more than prosecutors. But the system worked there; Nifong was disbarred and jailed (although not long enough).

There is no need to provide a criminal defendant access to confidential components of the prosecution's file. Witnesses are far less likely to participate in a prosecution if their identities are known to a criminal. The idea of police reports and witness statements being circulated through the community and uploaded to the Internet should be repugnant to anyone interested in the safety and privacy of victims and witnesses.

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