Code of Virginia

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

Article 4.2. Discovery.

§ 19.2-264.6. (Contingent effective date) General provisions.

A. This article shall apply to any prosecution for a felony in a circuit court and to any misdemeanor brought on direct indictment.

B. In any criminal prosecution for a felony in a circuit court or for a misdemeanor brought on direct indictment, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under this section and Rule 3A:11 of the Rules of Supreme Court of Virginia. Rule 3A:11 shall be construed to apply to such felony and misdemeanor prosecutions. This duty to disclose shall be continuing and shall apply to any additional evidence or material discovered by the attorney for the Commonwealth prior to or during trial which is subject to discovery or inspection and has been previously requested by the accused. In any criminal prosecution for a misdemeanor by trial de novo in circuit court, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 7C:5 of the Rules of Supreme Court of Virginia. The constitutional and statutory duties of the attorney for the Commonwealth to provide exculpatory, mitigating, and impeachment evidence to an accused supersedes any limitation or restriction on discovery provided pursuant to this article.

C. A party may satisfy the requirement to permit the opposing party to inspect and copy or photograph a document, recorded statement, or recorded confession by providing an actual duplicate, facsimile, or copy of the document, recorded statement, or recorded confession to the opposing party in compliance with the applicable time limits and redaction standards set forth in this article.

D. Any material or evidence disclosed or discovered pursuant to this article and filed with the clerk of court shall be placed under seal until it is either admitted as an exhibit at a trial or hearing or the court enters an order unsealing the specified material or evidence.

E. This section does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

2020, c. 1167.

§ 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.

§ 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.

§ 19.2-264.9. (Contingent effective date) Redaction and restricted dissemination material.

A. With regard to any material or evidence provided pursuant to this article, the attorney for the Commonwealth may redact the residential address, telephone number, email address, and place of employment of any witness or victim, or any family member of a witness or victim. The attorney for the Commonwealth may redact the date of birth and social security number of any person whose information is contained in material or evidence provided pursuant to this article. If the attorney for the Commonwealth redacts information pursuant to this section, he shall provide the accused with a list of the location of the redacted item in the discovery and a brief statement of why it was redacted, if such reason is not immediately apparent from the remaining portion of the document. If the attorney for the Commonwealth redacts personal identifying information pursuant to this section, the accused may file a motion seeking disclosure of the redacted information. Should the court find good cause for disclosure, it may order the attorney for the Commonwealth to provide the redacted information. In its discretion, the court ordering the provision of redacted personal identifying information may order that the information be identified as Restricted Dissemination Material pursuant to subsection B.

B. The attorney for the Commonwealth may designate any evidence or material subject to disclosure pursuant to this article as Restricted Dissemination Material, without supporting certification, if the accused's attorney agrees to such designation. The attorney for the Commonwealth shall prominently stamp or otherwise mark such items as Restricted Dissemination Material. In the absence of an agreement by the attorney for the accused, the attorney for the Commonwealth may designate any evidence or material as Restricted Dissemination Material by stamping or otherwise marking it as such and providing a certification in writing, upon information and belief, that (i) the designated material relates to the statement of a child victim or witness or (ii) disclosure of the designated material may result in clear and present danger to the safety or security of a witness or victim, danger of a witness being intimidated or tampered with, or a risk of compromising an ongoing criminal investigation or confidential law-enforcement technique.

Except as otherwise provided by order of the court or this article, Restricted Dissemination Material may be disclosed only to the accused's attorney, the agents or employees of the accused's attorney, or an expert witness. The accused's attorney may orally communicate the content of Restricted Dissemination Material to the accused or allow the accused to view the content of such material, but shall not provide the accused with copies of material so designated. Restricted Dissemination Material may not otherwise be reproduced, copied, or disseminated in any way.

The accused may at any time file a motion seeking to remove a designation made under this subsection from such evidence or material. Should the court find good cause to remove the designation, it may order that the evidence or material no longer be designated as Restricted Dissemination Material.

Within 21 days of the entry of a final order by the trial court, or upon the termination of the representation of the accused, the accused's attorney shall return to the court all originals and copies of any Restricted Dissemination Material disclosed pursuant to this subsection. The court shall maintain such returned Restricted Dissemination Material under seal. Any material sealed pursuant to this subsection shall remain available for inspection by counsel of record. For good cause shown, the court may enter an order allowing additional access to the sealed material as the court deems appropriate.

C. In any case in which an accused is not represented by an attorney, the attorney for the Commonwealth may file a motion seeking to limit the scope of discovery under this article. For good cause shown, the court may order any limitation or restriction on the provision of discovery to an accused who is unrepresented by an attorney as the court in its discretion deems appropriate.

2020, c. 1167.

§ 19.2-264.10. (Contingent effective date) Discovery by the Commonwealth.

If the court grants disclosure to the accused under § 19.2-264.8, it shall also order the accused to:

1. Permit the attorney for the Commonwealth to inspect and copy or photograph any written reports of autopsy examinations, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine, and breath analyses, and other scientific testing within the accused's possession, custody, or control that the defense intends to proffer or introduce into evidence at trial or sentencing.

2. Disclose whether the accused intends to introduce evidence to establish an alibi and, if so, disclose the place at which the accused claims to have been at the time the alleged offense was committed.

3. Permit the attorney for the Commonwealth to inspect, copy, or photograph any written reports of physical or mental examination of the accused made in connection with the particular case if the accused intends to rely upon the defense of insanity pursuant to Chapter 11 (§ 19.2-167 et seq.), provided that no statement made by the accused in the course of such an examination disclosed under this article shall be used by the attorney for the Commonwealth in its case-in-chief, whether the examination was conducted with or without the consent of the accused.

4. Notify the attorney for the Commonwealth in writing of the accused's intent to introduce expert opinion testimony at trial or sentencing and to provide the attorney for the Commonwealth 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 subdivision shall render inadmissible an expert witness's testimony at the trial or sentencing further explaining the opinions, bases, and reasons disclosed, or the expert witness's qualifications, solely because the further explanatory language was not included in the notice and disclosure provided. 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 subdivision.

5. Provide to the attorney for the Commonwealth a list of the names and, if known, the addresses of all persons who are expected to testify on behalf of the accused at trial or sentencing. The accused's attorney may redact the personal identifying information of any witness if so authorized by a protection order entered by the court pursuant to § 19.2-264.12. Failure to provide such information shall entitle the attorney for the Commonwealth to a continuance. Such failure shall not constitute a bar on such witness's testimony unless good cause or intentional withholding is shown.

2020, c. 1167.

§ 19.2-264.11. (Contingent effective date) Admissibility of discovery.

The fact that a party has indicated during the discovery process an intention to offer specified evidence or to call a specified witness is not admissible in evidence or grounds for adverse comment at a hearing or a trial.

2020, c. 1167.

§ 19.2-264.12. (Contingent effective date) Protection order.

A. Upon the motion of either party and for good cause, the court may enter a protective order with regard to the discovery or inspection required by this article. The court in its discretion may order any condition that it deems necessary to the orderly adjudication of the case or to the fair administration of justice. These conditions may include, but are not limited to:

1. A requirement that the parties not disclose the contents of any material or evidence disclosed or discovered pursuant to this article in any public forum, including any website;

2. A requirement that the parties not disclose the contents of any material or evidence disclosed or discovered pursuant to this article to any third party who is not an agent or employee of the parties or an expert witness;

3. Authorization to either party to withhold the residential address, telephone number, email address, or place of employment of any witness not covered by the provisions of § 19.2-264.9; or

4. Authorization for either party in appropriate circumstances to withhold from disclosure or place additional restrictions on dissemination of information otherwise discoverable but not exculpatory.

B. Should either party believe in good faith that the terms of a protective order entered by the court have been violated, such party may move the court to enforce the order and to impose any necessary and appropriate sanction authorized by Virginia law.

2020, c. 1167.

§ 19.2-264.13. (Contingent effective date) Continuing duty to disclose.

If, after disposition of a motion made pursuant to this article, a party or counsel to a party discovers, whether before, during, or after trial, additional material previously requested or falling within the scope of an order previously entered, that is subject to discovery or inspection under this article but has not previously been disclosed, the party shall promptly notify the other party or the other party's counsel and the court of the existence of the additional material.

2020, c. 1167.

§ 19.2-264.14. (Contingent effective date) Failure to provide discovery or otherwise comply.

A. If at any time during the course of the proceedings the court determines that a party has failed to comply with this article or with an order issued pursuant to this article, the court, in addition to exercising its contempt powers, may (i) order the party to permit discovery or inspection; (ii) grant a continuance or recess; (iii) prohibit the party from introducing evidence that was not disclosed; (iv) declare a mistrial; (v) dismiss the charge, with or without prejudice; or (vi) enter such other order as it deems just under the circumstances.

B. In determining appropriate sanctions, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this article or an order issued pursuant to this article.

C. For purposes of determining whether to impose personal sanctions for untimely disclosure of a law-enforcement or investigatory agency file, the courts shall presume that the attorney for the Commonwealth and his staff have acted in good faith if such attorney for the Commonwealth and his staff have made a reasonably diligent inquiry of such agency and disclosed the responsive materials.

D. Before the court imposes any sanction, it shall make a specific finding justifying the imposed sanction.

2020, c. 1167.