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Fairfax Discovery Coming Sooner for District Court Criminal Cases

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Fairfax discovery is scheduled to arrive sooner for the asking in  Virginia criminal district court cases

Fairfax discovery evidence in criminal district court cases for many years often only showed up on the first General District Court date or at best not long before. As a Fairfax DUI and criminal lawyer, in the last few months I experienced sometimes receiving such discovery more quickly than that. Now the county’s commonwealth’s attorney’s office — with an increased staffing budget in advance — offers Virginia criminal defense lawyers to request as short as a two-week turnaround for providing discovery in General District Court cases. The upside of this will be for the defense to be better prepared earlier on. Furthermore, I would not be surprised if the county’s general district court as a result changed its written policy making first-time Fairfax DUI court dates only have to go to trial that day if both parties agree to do so.

What does the new commonwealth’s attorney’s General District Court Fairfax discovery policy say?

This one page updated Fairfax discovery policy from the prosecutor’s office does not seem to be available online. That advisory is posted at the office’s reception desk, with the following key highlights, typed here verbatim: “1. Please fill out the carbon copy Agreed Discovery Order and file with our office. 2. Please fill out the order by marking if you want written or oral and provide a due date. a. We are asking for two weeks to respond to discovery orders. b. If you want it faster than that, please file and docket a discovery motion with the court… 7. What do you get? a. Police report b. Body Camera Footage c. Defendant statements. 8. If you would like additional items not typically covered by [Virginia Supreme Court Rule] 7C:5, please either speak with the assigned [Assistant Commonwealth’s Attorney (ACA)], the Duty ACA or file and docket a discovery motion with the Court…”

What material should be added to the Fairfax discovery policy of the prosecutor’s office for Virginia DUI and criminal cases?

The foregoing Fairfax discovery policy omits addressing Brady / exculpatory criminal evidence, as well as in car video (ICV) (versus body worn camera video), and photographic and audio evidence. I simply add all the foregoing in handwriting to the above-referenced Agreed Discovery Order form. The current prosecutorial administration does has not disturbed my Brady addition. For my video, film, photographic and audio evidence notation, some prosecutors will add such verbiage as “relevant” or “in the possession of the Commonwealth’s Attorney’s Office.” However, “relevant” is too vague a term for Fairfax discovery and does not belong. “In the possession of the commonwealth’s attorney’s office” can be misconstrued as omitting police, who also have discovery obligations in tandem with the prosecutor’s office. When I need to litigate this and other discovery issues, I can easily obtain a discovery hearing any weekday morning with notice as late as 8:30 the same morning for misdemeanor cases, and two days in advance for felony prosecutions.

How else does this discovery policy change help Virginia DUI and criminal defendants?

This Fairfax discovery policy change from the prosecutor’s office is a sea change from the days years ago when some Virginia prosecutors would contest whether the District Court discovery rules necessarily entitled me to receive police reports, and when prosecutors would not frequently provide me police reports. The last Fairfax prosecutorial administration later in its tenure routinely provided police reports, at least in redacted form that removed what the redacting prosecutor considered non-discoverable sensitive information about witnesses. That practice continues with the current administration. Also, the current administration’s video evidence to me typically is delivered electronically in downloadable format.

What is the best way for me to obtain and use criminal discovery / evidence to my maximum advantage?

Do not rely solely on prosecutors and police for obtaining Fairfax discovery and evidence, nor evidence in other Virginia criminal courts. A qualified DUI and criminal defense lawyer will independently seek out and review discovery and evidence for the greatest advantage of the criminal defendant. When the prosecutor refuses to provide all discovery that the defense wants, the criminal defense lawyer can docket a motions hearing to seek judicial relief on the matter.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Nearly 100% of Jon Katz’s law practice focuses on criminal and DWI defense. Learn the positive difference that Jon can make for your defense through a free in-person confidential consultation, scheduled at 703-383-1100.