Fairfax Rally for Discovery Reform: Recap

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On September 19, 2017, Justice Forward Virginia, along with co-sponsor VACDL, hosted its third Justice Reform Happy Hour, this time in Old Town Fairfax, VA at the French Quarter Brasserie. The focus of the event was discovery reform, and particularly upcoming efforts by Justice Forward and other advocacy groups to lobby for discovery reform legislation during the upcoming Virginia General Assembly session. 

In case you’re not a lawyer, “criminal discovery” refers to the information about a criminal case that the government is required to provide a defendant and his attorney when he’s charged with a crime. In most states, discovery consists of things like the police reports written by the officers and detectives who investigated the allegations, names of witnesses, and lists of the persons who might testify at trial. In addition, in some states, defendants are even permitted to conduct depositions, much like in civil litigation. 

In Virginia, defendants are entitled to none of those things -- not police reports, not witness information, not lists of trial witnesses, and definitely not depositions. Virginia is among only 10 so-called “closed discovery” states, where information available to a defendant is extremely limited -- and it’s arguably the worst of the bunch.

Why does this matter? Well, as our excellent speakers -- Jonathan Shapiro, Peter Greenspun and Sen. Scott Surovell -- discussed at the event, discovery is a basic and critical element of due process, which safeguards a fair trial by ensuring that both sides know what is at issue in a case so they can be prepared. The lack of it is the reason the Commonwealth can call a surprise expert as its very first witness at trial in order to catch the defense off-guard and secure a death sentence. And it is why prosecutors can use the simple matter of truth, and facts, and their power over them, as leverage to coerce defendants, influence guilty pleas and secure unfair prison sentences. Unsurprisingly, the lack of discovery is the cause of many false convictions. The Commonwealth should not be permitted to play games with the truth, and it’s high time we as advocates and allies do something about it.

What is there to do? As our speakers said, make your voice heard. It is no more complicated than that. It is expected that a comprehensive discovery reform bill will be presented in the General Assembly this year, and legislators need to hear from you. We can help you get involved: You should come to Justice Forward’s lobby bootcamp on October 10, to the joint Lobby Day on January 12, and you should volunteer to be an in-session volunteer lobbyist in Richmond in 2018--. These are all concrete actions that anyone—attorney or otherwise—can take to finally remove this black mark from the Commonwealth’s facade of justice.

Brad Haywood