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News Release ~ 02/09/2017

Nation's Criminal Defense Bar Calls on Virginia House of Delegates to Pass Criminal Discovery Reform

Washington, DC (Feb. 9, 2017) – The National Association of Criminal Defense Lawyers (NACDL) today urges the Virginia House of Delegates to pass criminal discovery reform measures to increase fairness and access to justice in the Commonwealth. On February 7, 2017, the Senate passed SB 1563 by a vote of 39-1, and the bill now moves on to the House.

In November 2013, the Virginia Supreme Court tasked The Special Committee on Criminal Discovery Rules to study Virginia's discovery requirements. The Special Committee consisted of defense lawyers, prosecutors, judges, professors, and law enforcement officers who studied the issues for over a year. The Committee's recommendations included allowing the defense to inspect police reports and witness interview reports, requiring both Commonwealth's Attorneys and defense counsel to disclose witness lists before trial, and taking measures to protect witnesses and victims. The Virginia Supreme Court subsequently shelved the recommendations, but SB 1563 incorporates them.

Virginia lags behind most other states in discovery practices. Due to its restrictive rules, Virginia is identified as one of fourteen states that provide criminal defendants with the least discovery in the nation. Unlike in civil trials, Virginia does not currently require prosecutors or defense lawyers to share a summary of expert witness testimony with the other party. Additionally, defendants are not entitled to witness lists, witness statements, or police reports. These restrictions lead to what some refer to as "trial by ambush."

NACDL President Barry J. Pollack said: "A criminal trial is a search for the truth. It should not be a place for unfair surprise or gamesmanship. This bill helps level the playing field. By passing it into law, the Commonwealth of Virginia has the opportunity to ensure that when its citizens are accused of crimes, they will get a fair trial, juries will not be deprived of critical evidence, and justice will be served."

Even though some jurisdictions have voluntarily expanded their discovery, doing so creates an imbalance with other regions of the Commonwealth. As Douglas Ramseur, a Capital Defender for Central Virginia and member of the special committee, told the Washington Post after the Supreme Court's refusal to adopt the recommendations, "You could be charged in Richmond and Norfolk and get a completely different amount of information. That seems to me completely inappropriate and unseemly for our system."

Just as it overwhelmingly made it through the Senate, so too does NACDL call on the Virginia Criminal Law Subcommittee of the House Courts of Justice Committee, the full committee, and the full House to swiftly pass the Senate's bill and provide necessary discovery reform and equal access to fair justice for all Virginians.

To learn more about NACDL's state advocacy efforts, visit http://advocacy.nacdl.org/. And to learn more about NACDL's extensive work in the area of discovery reform, please visit www.nacdl.org/discoveryreform.

Contact

Ezra Dunkle-Polier, NACDL Public Affairs & Communications Assistant, (202) 465-7656 or edunkle-polier@nacdl.org for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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