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Fairfax optional discovery order where the Commonwealth opts out- Part II

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Fairfax optional discovery order where the Commonwealth opts out- Part II

Fairfax optional discovery order form provides new opportunities in cases in which the prosecutor’s office opts out

Fairfax optional discovery order (“Order”) forms are addressed in part 1 of this article (here). This is the second and final part of this blog entry on this topic by me, a Fairfax criminal lawyer handling felony, misdemeanor and DUI defense for decades in Fairfax County and Northern Virginia.

What is the “defense team” in the Fairfax optional discovery order form?

The Fairfax optional discovery order form includes a provision that “any body worn camera or in car video provided to the attorney for the accused pursuant to this order shall not be given to any person outside of the defense team. The video may not be used for any purpose other than the litigation of this case, including, but not limited to, posting on media or social media sites. If either party wishes to disclose the video outside of the litigation in this case, the party must move the court for relief from this provision and notify the police officer of the motion.”

As is often the case when procedures and policies are developed without a notice and comment period, easily-remedied flaws can result in the written procedure. For instance, in the Fairfax optional discovery order, “defense team” does not define “defense team”. My view is that the defense team is not only the criminal defense lawyer and the Fairfax criminal defendant, but also the lawyer’s staff, all potential and actual defense experts and consultants, and all colleagues with whom the defendant’s lawyer consults and brainstorms.

The necessity of clarifying the “no distribution” requirement of the optional discovery order

If a Fairfax criminal lawyer opts to provide his or her client with a copy of the video footage provided for Fairfax cases under the Fairfax optional discovery Order, it is important for the lawyer to assure with the client that the defendant is only using the video for his or her own viewing, and not for showing it to others nor for distributing nor uploading to the Internet. Whether the lawyer has the client sign to that in writing is at the lawyer’s discretion.

How to enforce Virginia discovery orders?

Criminal discovery orders come up for enforcement in terms of seeking to compel compliance with a discovery order, and seeking to exclude at trial any evidence that has not timely been provided in discovery (such evidence usually comes in the form of the police officer’s testifying to undisclosed statements of the criminal defendant). I anticipate that many police officers for Fairfax cases will find it very challenging to provide discovery at least seven days before a District Court trial date pursuant to the Fairfax optional discovery order, unless non-police officer personnel is available to obtain and disseminate discovery, which I anticipate has been arranged seeing that the county attorney’s office has agreed to this optional discovery Order. At the same time, non-police personnel at the police department can only obtain discovery that they have available. Just as I see prosecutors sometimes only learn of additional discovery as late as the trial date, non-law enforcement officer personnel at the police department will have a sixth sense about the existence of discovery that they do not know about.

The court speaks through its orders

Virginia judges often point out that a court speaks through its orders. Simmons v. Virginia, 54, 58 Va.App. 594 (2009). Virginia criminal defense lawyers need to be ready for the possibility that a District Court judge will not enforce the Fairfax optional discovery order form if not signed by a judge. The safest way to preclude that possibility is to note a hearing so that the judge signs the form discovery order. If a discovery order agreed to by both parties is timely submitted to the court and not signed by a judge, the criminal defense lawyer is left to argue that by the parties signing off on an order form already agreed for use by the court, the parties’ mutual execution of the court-approved order form should make it a court order, and, if not, the court can expect to be inundated with hearings scheduled by the defense to obtain a judicial signature thereon.

Discovery is only a piece of pursuing victory for criminal defendants

As always, a full court press is needed to pursue the best defense against Fairfax cases and all criminal prosecutions. Obtaining evidence in a case does not begin nor end through seeking and obtaining discovery from prosecutors and police through the Fairfax optional discovery order form or otherwise, versus the criminal defense lawyer’s own investigation and analysis of the evidence and facts of the case. Proceeding beyond obtaining evidence and discovery, fully defending a criminal defendant calls for taking such approaches as knowing the applicable law, being ready to argue how the law should apply (including evidentiary objections), knowing what evidence might be presented at trial, preparing and presenting defense witnesses and evidence, and preparing and executing motions, jury selection / voir dire, opening statement, direct and cross examination, jury instructions and closing argument, and (in the event of a conviction) sentencing.

This is the last part of a two-part article. The first part is here

Do you have a Virginia criminal defense or DUI case against you? If so, call Fairfax criminal lawyer Jon Katz at 703-383-1100 for a free confidential initial consultation about your court-pending case.