Code of Virginia

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

§ 19.2-264.8. (Contingent effective date) Discovery by the accused.

A. The attorney for the Commonwealth shall disclose to the accused, and permit him to discover, inspect, copy, photograph, and test, all items and information that relate to the subject matter of the case and are in the possession, custody, or control of the Commonwealth or persons under the Commonwealth's direction or control, including but not limited to:

1. All written or recorded statements, and the substance of all oral statements, made by the accused or a co-accused to a public servant engaged in law-enforcement activity or to a person then acting under his direction or in cooperation with him.

2. The names of and adequate contact information for all persons other than law-enforcement personnel whom the attorney for the Commonwealth knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Nothing in this paragraph shall require the disclosure of physical addresses; however, upon a motion and good cause shown, the court may direct the disclosure of a physical address. Notwithstanding the requirements of § 19.2-264.9, information under this subdivision relating to a confidential informant may be withheld and redacted from discovery materials, but the attorney for the Commonwealth shall notify the accused in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.

3. All statements, written or recorded, or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of law-enforcement officers and other investigators, and law-enforcement agency reports. Such information shall include statements, written or recorded, or summarized in any writing or recording, by persons to be called as witnesses at any pretrial hearing.

4. Written reports of autopsy examinations, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine, and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case that are within the possession, custody, or control of the attorney for the Commonwealth. Additionally, the attorney for the Commonwealth shall notify the accused in writing of the attorney for the Commonwealth's intent to introduce expert opinion testimony at trial or sentencing and to provide the accused with (i) any written report of the expert witness setting forth the witness's opinions and the bases and reasons for those opinions or, if there is no such report, a written summary of the expected expert testimony setting forth the witness's opinions and the bases and reasons for those opinions and (ii) the witness's qualifications and contact information.

Nothing in this subsection shall render inadmissible an expert witness's testimony at the trial or sentencing further explaining the opinions, bases, and reasons disclosed pursuant to this article, or the expert witness's qualifications, solely because the further explanatory language was not included in the notice and disclosure provided under this article. Providing a copy of a certificate of analysis from the Virginia Department of Forensic Science or any other agency listed in § 19.2-187, signed by hand or by electronic means by the person performing the analysis or examination, shall satisfy the requirements of this subsection.

5. All tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident, and a designation by the attorney for the Commonwealth as to which of the recordings under this paragraph he intends to introduce at trial or any pretrial hearing.

6. All evidence and information, including that which is known to police or other law-enforcement agencies acting on the state or local government's behalf in the case, that tends to (i) negate the accused's guilt as to a charged offense, (ii) reduce the degree of or mitigate the accused's culpability as to a charged offense, (iii) support a potential defense to a charged offense, (iv) impeach the credibility of a testifying witness for the Commonwealth, (v) undermine evidence of the accused's identity as a perpetrator of a charged offense, (vi) provide a basis for a motion to suppress evidence, or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the attorney for the Commonwealth credits the information. The attorney for the Commonwealth shall disclose the information expeditiously upon its receipt and shall not delay disclosure consistent with the ethical responsibilities of the attorney for the Commonwealth under Rule 3.8 of the Virginia Rules of Professional Conduct.

7. A summary of all promises, rewards, and inducements made to, or in favor of, persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses and copies of all documents relevant to a promise, reward, or inducement.

8. A list of all tangible objects obtained from, or allegedly possessed by, the accused or a co-accused. The list shall include a designation by the attorney for the Commonwealth as to (i) which tangible objects were physically or constructively possessed by the accused and were recovered during a search or seizure by a law-enforcement officer or an agent thereof and (ii) which tangible objects were recovered by a law-enforcement officer or an agent thereof after allegedly being abandoned by the accused. If the attorney for the Commonwealth intends to prove the accused's possession of any tangible objects by means of a statutory presumption of possession, he shall designate such intention as to each such object. If reasonably practicable, the attorney for the Commonwealth shall also designate the location from which each tangible object was recovered. The accused shall have a right to inspect, copy, photograph, and test the listed tangible objects.

9. Whether a search warrant has been executed and all documents relating thereto, including the warrant, the warrant application, supporting affidavits, a law-enforcement inventory of all property seized under the warrant, and a transcript of all testimony or other oral communications offered in support of the warrant application.

10. All tangible property that relates to the subject matter of the case, along with a designation of which items the attorney for the Commonwealth intends to introduce in his case-in-chief at trial or a pretrial hearing. If in the exercise of reasonable diligence the attorney for the Commonwealth has not formed such intention within the time period specified in this section, the attorney for the Commonwealth shall notify the accused in writing as soon as practicable and subject to the continuing duty to disclose.

11. A complete record of judgments of conviction for all persons accused in the case and all persons designated as potential witnesses for the Commonwealth.

12. When it is known to the attorney for the Commonwealth, the existence of any pending criminal action against all persons designated as potential witnesses for the Commonwealth.

13. The approximate date, time, and place of the offense or offenses charged and of the accused's seizure and arrest.

14. A copy of all electronically created or stored information seized or obtained by or on behalf of a law-enforcement agency from (i) the accused or (ii) a source other than the accused that relates to the subject matter of the case. If the electronically created or stored information originates from a device, account, or other electronically stored source that the attorney for the Commonwealth believes the accused owned, maintained, or had lawful access to and is within the possession, custody, or control of the attorney for the Commonwealth or persons under the direction or control of the attorney for the Commonwealth, the attorney for the Commonwealth shall provide a complete copy of the electronically created or stored information from the device or account or other source. If possession of such electronically created or stored information would be a crime under the laws of the Commonwealth or federal law, the attorney for the Commonwealth shall make those portions of the electronically created or stored information that are not criminal to possess available as specified under this subdivision and shall afford counsel for the accused access to inspect contraband portions at a supervised location that provides regular and reasonable hours for such access, including the attorney for the Commonwealth's office, a police station, or a court. This subdivision shall not be construed to alter or in any way affect the right to be free from unreasonable searches and seizures or such other rights a suspect or accused may derive from the Constitution of Virginia or the Constitution of the United States.

B. The attorney for the Commonwealth shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under § 19.2-264.8 and to cause such material or information to be made available for discovery where it exists but is not within the possession, custody, or control of the attorney for the Commonwealth, provided that the attorney for the Commonwealth shall not be required to obtain by subpoena duces tecum any material or information that the accused may thereby obtain. For purposes of § 19.2-264.8, all items and information related to the prosecution of a charge in the possession of any state or local law-enforcement agency located in the Commonwealth are deemed to be in the possession of the attorney for the Commonwealth. The attorney for the Commonwealth shall identify any laboratory having contact with evidence related to the prosecution of a charge. On a timely basis, law-enforcement and investigatory agencies shall make available to the attorney for the Commonwealth a copy of the complete files related to the investigation of the crimes committed by the accused.

C. The attorney for the Commonwealth shall endeavor to ensure that a flow of information is maintained between law-enforcement agencies, other investigative personnel, and his office sufficient to place within his possession or control all material and information pertinent to the accused and the offense or offenses charged.

D. Whenever an electronic recording of a 911 telephone call or a police radio transmission or video or audio footage from a police body-worn camera or other police recording was made or received in connection with the investigation of an apparent criminal incident, the arresting officer or lead detective shall expeditiously notify the attorney for the Commonwealth in writing upon the filing of an accusatory instrument of the existence of all such known recordings. The attorney for the Commonwealth shall take whatever reasonable steps are necessary to ensure that all known electronic recordings of 911 telephone calls, police radio transmissions, video and audio footage, and other police recordings made or available in connection with the case are preserved. Upon the accused's timely request and designation of a specific electronic recording of a 911 telephone call, the attorney for the Commonwealth shall also expeditiously take whatever reasonable steps are necessary to ensure that it is preserved. If the attorney for the Commonwealth fails to disclose such an electronic recording to the accused, the court upon motion of the accused shall impose an appropriate remedy or sanction under this section.

E. This article does not authorize the discovery of the names or personal identifying information of confidential informants whom the attorney for the Commonwealth does not intend to call at trial and with regard to whose identity the attorney for the Commonwealth asserts he holds a privilege. However, disclosure of such information shall comply with subdivision A 10 and any other obligations required by law.

F. The attorney for the Commonwealth shall provide to the accused a list of the names and, if known, the addresses of all persons who are expected to testify on behalf of the Commonwealth at trial or sentencing. This provision is subject to subdivision A 10 and to any protection order entered by the court pursuant to § 19.2-264.12. In addition, this subdivision shall not be subject to the timing requirements of subsection E of § 19.2-264.7, but shall be provided at least seven days before a misdemeanor trial, at least 14 days before a noncapital felony trial, and at least 28 days before a capital trial.

G. This article does not authorize the discovery or inspection of the work product of the attorney for the Commonwealth, including internal reports, memoranda, correspondence, legal research, or other internal documents prepared by the office of the attorney for the Commonwealth or its agents in anticipation of trial.

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.