Justice Matters with Bryan Porter: A needed ‘Rule’ change

Justice Matters with Bryan Porter: A needed ‘Rule’ change
(Courtesy photo)

By Bryan Porter

The process by which prosecutors and defense attorneys exchange information
about a pending criminal case is called discovery. Criminal discovery is governed by the Rules of the Virginia Supreme Court, specifically by Rule 3A:11.

Rule 3A:11 has stood virtually unchanged for almost four decades and has, in recent years, come under fire as being one of the least permissive discovery rules in the country. Critics have pointed out that the prosecution is currently required to provide very little information to criminal defendants and that the quantity of material disclosed by the prosecution varies significantly from jurisdiction to jurisdiction.

Some prosecutor’s offices hew closely to disclosing only the information required by the rule, while others, such as my office, are much more forthcoming. Indeed, in Alexandria, our standard practice is to provide “open-file” discovery to the defense.

Last year, the Virginia state bar created a task force composed of defense attorneys, prosecutors, law professors and judges to discuss changes to Rule 3A:11. The group was tasked with determining whether a consensus for rewriting the Rule could be achieved. I was flattered to be asked to serve, and was pleased to act as an unofficial secretary for the group.

The defense attorneys on the task force explained how they felt hamstrung and unable to provide effective representation for their clients if they did not have access to police reports and other germane material. Prosecutors pointed out the very real threat to victims and witnesses in violent cases and lamented a few situations where sensitive information
was provided during discovery and then wound up being posted online.

While both sides refused to back down on points of principle, it soon became clear that there was a middle ground on many reform proposals. As time progressed, I became convinced that compromise was possible. In the end, the group proposed a series of changes and reforms to Rule 3A:11, and I was pleased to learn that the Virginia Supreme Court adopted the proposed changes last week, effective July 1, 2019.

I cannot understate the importance of these changes. In my opinion, they represent the most important criminal justice reform in Virginia in the past decade. While the success of the task force belongs to the group collectively, I am proud that I played a role in bringing this reform about and that I was one of the primary authors of the text of the new Rule.

While avoiding an unnecessary dive into legal arcana, I would like to highlight some of reforms produced by the task force. First, the new Rule will require prosecutors to provide the defense with access to all relevant police reports associated with a case. Prosecutors must disclose any statement the defendant made about the facts and must disclose the statements of co-defendants about the case as well. Both the prosecution and the defense must disclose the names and opinions of any expert witnesses and both sides must provide the other with a prospective witness list prior to trial.

New provisions seek to protect victims and witnesses from undue pressure or threats of violence. In some cases, the prosecution can redact the personal information, other than the name, of a witness. If a prosecutor certifies that certain information may result in danger to a witness, he or she may mark it as “Restricted Dissemination Material” and
limit with whom the defense attorney may share it. The revised Rule will also provide the trial judge with the authority to enter a protective order to ensure that sensitive information is not disclosed unnecessarily or posted online.

The sign of a good compromise is when neither party to the negotiations walks out feeling as though they won, and that was surely the case here. The members of the task force debated in good faith, making concessions where they could, but standing on principle where they were compelled to do so. This Hegelian dialectic resulted in real discovery reform and helped us take a significant step toward a more just system. I am proud of the work of the task force and humbled to have served.

The writer is Commonwealth’s Attorney for the City of Alexandria.