Although Virginia has some of the most restrictive criminal discovery rules in the nation (rules which have not changed since 1972), I'm proud of the Roanoke County Commonwealth's Attorney's office, which has led the state in having an open file policy. We need to continue to lead the Commonwealth in this area by implementing automatic discovery procedures that will make our court system more efficient and make our system more just.
Our current rules require criminal defense attorneys to review (but not copy) the evidence against their client at the CA's office, which is an enormous time commitment. This is especially important in light of the fact that Virginia's court-appointed attorneys are the worst paid in the nation, with billing caps restricting payment to 1.5 hours for misdemeanors and 5 hours for most felonies. Requiring these underpaid defenders to waste time reviewing files at the office is inefficient for them, for the prosecutor, and ultimately for the court. Cases are being continued and defendants and attorneys are often making decisions because of inadequate or untimely information.
We can fix this problem by automatically sending defense attorneys the evidence that will be used against their clients. I believe in a system where both sides are adequately prepared to present their best arguments to the judge, and so I believe that we should do everything possible to ensure that system is fair and efficient.
Our discovery system should be:
Open: with the exception of prosecutor's notes and strategies, defense attorneys should have full access to see the evidence against their clients.
Automatic: In this age of technology, defense attorney should not have to sit in the CA's conference room and dictate the file so their staff can later transcribe it; the file (and updates to it) should be sent automatically.
Early: In order to eliminate surprise (so-called "trial by ambush"), reduce continuances, and allow the greatest amount of preparation possible, in the most efficient way possible.
Protective of vulnerable witnesses and victims: Through the use of redaction and protective agreements (preventing dissemination of the file by defense attorneys), vulnerable witness and victims must be protected, in addition to ongoing investigations. This is a sensitive process that is only applicable in a small percentage of our cases, but thankfully it's a process that the office already understands and implements.