In Virginia, a party to a criminal action may not be issued a subpoena duces tecum, ordering the production of records or other tangible items. Va. S .Ct. R. 3A:12(b). Rule 3A:12(b) applies to General District Court proceedings through Va. Code § 16.1-131.

At first blush, this rule might sound harmless to criminal defendants, until considering that at least as to police investigatory functions, the police are considered by caselaw to be a party to the criminal action, and thus not subject to being issued a subpoena duces tecum. Cox v. Com, 227 Va. 324, 329 n. 4 (1984); Ramirez v. Com., 20 Va.App. 292 (1995).

Of course, where a police agency’s functions are less investigatory and more ministerial — for instance administering breath alcohol tests in DWI cases or issuing directives for post-arrest inventory searches — the argument can be made that such a function does not amount to being a party to the criminal action. If the situation were otherwise, the Virginia government could simply shield government functions from records subpoenas merely by shifting those functions to the police department.

Unfortunately, Virginia’s rule generally preventing a criminal defendant from subpoenaing police documents is another aspect of the insufficient discovery available to Virginia criminal defendants.