Code of Virginia

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Code of Virginia
Title 19.2. Criminal Procedure
Chapter 15. Trial and Its Incidents
3/8/2021

§ 19.2-264.7. (Contingent effective date) Initiation and timing of discovery.

A. A party requesting discovery pursuant to this article shall, before filing any motion before a judge, request in writing that the other party voluntarily comply with such request. Such request shall be made at least 30 days prior to the day fixed for trial. Upon receiving a negative or unsatisfactory response, or upon the passage of seven days following the receipt of the request without response, the party requesting discovery may file a motion for discovery under the provisions of this article concerning any matter as to which voluntary discovery was not made pursuant to the request.

B. Discovery under this section shall be provided in a reasonable time before trial to give the party receiving discovery the opportunity to make meaningful use of the provided information in preparation for trial. If discovery is not provided within such time, even if the disclosure complies with timing requirements pursuant to subsection E or an alternative agreement or order, the aggrieved party shall be entitled to a continuance of an appropriate length to make meaningful use of the discovery.

C. To the extent that discovery authorized in this article is voluntarily made in response to a request or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this section.

D. If the parties proceed under the voluntary compliance provisions of this section, each party shall certify, prior to plea or trial, that he has complied with the provisions of this section. No adverse consequence to the party or counsel for the party shall result from the filing of a certificate of compliance in good faith, but the court may grant a remedy or sanction for a discovery violation as provided in § 19.2-264.14.

E. Discovery pursuant to this article shall be provided at a reasonable time before trial, but in no case shall it be provided later than (i) 14 days before trial on a misdemeanor in circuit court; (ii) 30 days before trial on a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of 30 years or less; or (iii) 90 days before trial on a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of more than 30 years.

F. Upon an indictment or information, where the attorney for the Commonwealth has made a guilty plea offer requiring a plea to a crime, the attorney for the Commonwealth shall disclose to the defense, and shall permit the defense to discover, inspect, copy, photograph, and test, all items and information that would be discoverable prior to trial under § 19.2-264.8 and that are within the possession, custody, or control of the prosecution. The attorney for the Commonwealth shall disclose the discoverable items and information not less than seven calendar days prior to the expiration date of any guilty plea offer by the attorney for the Commonwealth or any deadline imposed by the court for acceptance of the guilty plea offer. The attorney for the Commonwealth may comply with this subsection by certifying, in writing, that this article was complied with prior to the date set for the preliminary hearing in the district court, provided that such certification includes a list that states, with specificity, what items were provided to the defense under this section. If the attorney for the Commonwealth does not comply with the requirements of this subsection, then, on motion by the accused alleging a violation of this subsection, the court shall consider the impact of any violation on the accused's decision to accept or reject a guilty plea offer. If the court finds that such violation materially affected the accused's decision, and if the attorney for the Commonwealth declines to reinstate the lapsed or withdrawn guilty plea offer, the court shall preclude the admission at trial of any evidence not disclosed as required under this subsection. The court may take other appropriate action as necessary to address such violation. The rights under this subsection do not apply to items or information that is the subject of a protection order issued pursuant to § 19.2-264.12, but if such information tends to be exculpatory, the court shall reconsider the protection order. An accused may waive his rights under this subsection, but a guilty plea offer may not be conditioned on such waiver.

2020, c. 1167.

The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.