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Virginia: The limits on obtaining discovery from police with FOIA and SDT’s

Feb 11, 2013 Virginia: The limits on obtaining discovery from police with FOIA and SDT’s

Unlike in the other jurisdictions where I practice, in Virginia criminal defendants are not entitled to obtain the statements of opposing witnesses before cross examining them. In some counties, the prosecutors will permit partial or full access to police reports, running from providing redacted reports, to permitting a review of police reports but not copies, to receiving a copy of the full police report. In other counties, prosecutors will not show any of the police report, and police are likely to refuse to show their reports if prosecutors will not do so.

As I have written before, prosecutors should overdisclose rather than underdisclose evidence.

In Virginia, records subpoenas generally may not be used to get around Virginia’s crabbed discovery rules.

Last Friday, Virginia’s highest court underlined that the state freedom of information act will yield little, either, to get around the state’s limited discovery rules. A criminal defense lawyer sought to obtain analytical information about a police officer’s past conduct, but the state Supreme Court only allowed the part of his freedom of information request that matched the police officer to names of others he had arrested. Harmon v. Ewing, ___ Va. ___ (Feb. 8, 2013).

It remains an uphill battle to expand Virginia’s discovery rules. It is an essential battle. 

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