Subpoenas for prosecutors usually will not get approved in Virginia, says Fairfax criminal lawyer

Subpoenas (WS’s) for prosecutors’ testimony are sometimes essential for a fair criminal trial, for instance in the event that the prosecutor witnessed inconsistent statements by a complaining witness, but refuses to admit nor stipulate nor otherwise fully reveal those inconsistencies to the judge nor jury, other than reporting details of inconsistency to the criminal defense lawyer. Torres Cruz v. Virginia, ___ Va. App. ___ (2025). As a Fairfax criminal lawyer, I read with interest this Torres Cruz case. A jury convicted Torres Cruz of two counts of forcible sodomy and one count of aggravated sexual battery. At least a week before trial (by my calculation), “On May 17, 2022, Victoria Jensen (‘Jensen’), the Assistant Commonwealth’s Attorney assigned to Cruz’s case, met with [complaining witness] Y.T. to discuss her testimony while preparing for trial. Two professional support staff members, Nicole Terrell (‘Terrell’) and Kim Myers (‘Myers’), were also present and participated in the meeting. During their discussion, Y.T. advised that Cruz ‘told her not [to] tell anyone and that “something bad” would happen to her brother.”‘ On the morning set for Torres Cruz’s trial to commence, “the Commonwealth sent Cruz’s trial counsel an email advising him of the statement made by Y.T. during the May 17, 2022 meeting. The email also advised that the statement was potentially inconsistent with a statement Y.T. had previously given during a forensic interview wherein she had advised the forensic nurse that Cruz ‘wouldn’t threaten [her]’ and ‘told [her] not to tell anybody.’ As a result, the trial court continued the jury trial to December 6, 2022, to permit trial counsel for Cruz to further investigate the disclosure.” Torres Cruz. The defense subsequently requested that the Court issue a subpoena for prosecutor Jensen, as the governing Virginia rules require court approval to issue WS’s on members of the Bar. The court denied that request, and Torres Cruz argued against that denial as part of his appeal.

Obtaining subpoenas for members of the bar will rarely be granted in Virginia

After surveying the state of affairs in other state and federal courts in the nation, Torres Cruz sets a high bar for witness subpoenas to be issued for members of the bar: [C]onsistent with guidance from our Supreme Court and the overwhelming consensus of the federal circuits and several states, we hold that issuing a subpoena to the prosecutor handling a case is permitted only if required by a compelling need… When inquiring whether there is such a compelling need, courts should look to the quality and quantity of the alternatives available and whether the defendant has exhausted them…” Torres Cruz (citations omitted). Here, Torres Cruz points out that the defendant’s lawyers had the alternative to cross examine the alleged victim in the matter (which his lawyers did) and to subpoena the non-lawyer commonwealth’s attorney’s office employees who were present for the meeting with Y.T. Torres Cruz. 

Issue WS’s for prosecution office employees when the court will not order the testimony of the prosecutor

Rather than seeing Torres Cruz as a total victory for the prosecution, Virginia criminal defense lawyers can use this case to issue subpoenas on non-lawyer staffmembers of prosecutors’ offices, and to enforce having them testify. Unclear is why Torres Cruz’s lawyers did not issue a subpoena for either of the two non-lawyer commonwealth attorney’s office staffmembers present for the May 17, 2022, meeting with the alleged victim. That decision was either strategic for the trial or potential appeal, or was otherwise not considered.

Is the law meant to protect Virginia criminal defendants?

One of the best criminal defense continuing legal education speakers was fond of saying that procedural rules are usually written to assist prosecutors, not criminal defendants. This is in effect the case when we see the insulation for prosecutors (yes, and for all lawyers generally) against witness subpoenas. I add that when a procedural rule or published appellate court opinion favors a criminal defendant, the resistance or hostility by too many judges (and even one judge is too many for such resistance or hostility) is fully palpable, making me thank the availability of seeking appellate relief from convictions.

Fairfax criminal lawyer Jonathan Katz knows that your trial and settlement negotiations against Virginia felony, misdemeanor and DUI prosecutions can feel like a freefall, a runaway roller coaster, or not much better. When you have Jon Katz busting his butt for your defense, you are covering against the risks of conviction and harsh sentencing. Usually Jon can meet with you within one business day of your calling for your free in-person initial confidential consultation about your court-pending case. To schedule your meeting with Jon Katz, call 703-383-1100, Info@KatzJustice.com or (text) 571-406-7268.