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Virginia — The land that turned its back on Jencks

Fairfax County/Northern Virginia criminal defense/DWI defense attorney urges Virginia prosecutors voluntarily to disclose their witnesses

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Compared to the other jurisdictions where I practice (Maryland, the District of Columbia, and federal courts), the governing Virginia criminal discovery rules are the thinnest. The Virginia General District Court discovery rule (Rule 7C:5) is particularly razor-thin, while the Circuit Court discovery rule (Rule 3A:11) a little less thin.

Unfortunately, Virginia has not joined the jurisdictions that require providing criminal defendants a prosecution witness’s written statements and substance of oral statements after the witness testifies for the prosecution. This rule is known as the Jencks Act, 18 U.S.C. § 3500. All federal prosecutions are governed by the Jencks Act, which also governs prosecutions in the District of Columbia Superior Court. D.C. SCR-Crim. Rule 26.2. The Jencks Act also applies in Maryland. Carr v. State, 284 Md. 455 (1979).

However, the Virginia Supreme Court generally refuses to apply Jencks, having concluded that the Jencks rule “is not ordinarily of constitutional dimension but is a rule of evidence governing trials before federal tribunals.” Bellfield v. Com., 215 Va. 303 (1974),cert. denied,  420 U.S. 965 (1975); see also U.S. v. Augenblick, 393 U.S. 348, 356 (1969) (the Supreme Court’s “Jencks decision [353 U.S. 657 (1957)] and the Jencks Act were not cast in constitutional terms”).

The wise approach for all prosecutors is to provide Jencks material, whether or not Jencks applies in their jurisdiction. Otherwise, the prosecution runs too great a risk of not releasing exculpatory/Brady material, 373 U.S. 83 (1963), which the prosecution always has the obligation to divulge to the defense. Letting prosecutors decide what is exculpatory evidence is like letting the fox guard the henhouse; even well-intentioned prosecutors are not all-knowing people who can always tell whether material is the least bit exculpatory. Also, prosecutors tend to be so busy that they are at risk of missing disclosing Brady material when not simply disclosing all prosecution witness statements.

In any event, even if Virginia adopts the Jencks rule, the rule is no picnic in terms of its making Jencks material available only after the prosecutions’ trial direct examination of a witness concludes, unless the judge intervenes to require earlier disclosure than that. Jencks material often is too voluminous to sufficiently review, digest, and address after, rather than before, the applicable witness testifies on direct examination.