SB 1563 — Discovery in criminal cases; duty to provide.

SESSION history | hilite | pdf | print version 17103296D17104773D SENATE BILL NO.

1563 OfferedAMENDMENT JanuaryIN 20,THE 2017NATURE OF A SUBSTITUTE (Proposed by the Senate Committee for Courts of Justice on February 1, 2017) (Patron Prior to Substitute--Senator Stanley) A BILL to amend and reenact § 19.2-265.4 of the Code of Virginia, relating to discovery in criminal cases;

---------- Patron-- Stanley ---------- Referred to Committee for Courts of Justice ---------- Be it enacted by the General Assembly of Virginia:

FailureDiscovery and failure to provide discovery.

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 inunder subsectionsthis Bsection and C and under Rule 3A:11 of the Rules of the Supreme Court of Virginia;Virginia.

however, in the case of a variance between subsections B and C and Rule 3A:11, such variance shall be construed to give effect to subsections B and C.

Upon written notice by an accused to the court and to the attorney for the Commonwealth, the attorney for the Commonwealth shall permit the accused to inspect,inspect copy,and copy or photograph:

Any relevant (i) written or recorded statements or confessions made by the accused or any codefendantscodefendant, andor the substance of any oral statements or confessions made by the accused or any codefendantscodefendant to any law-enforcement officer, the existence of which is known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine, and breath tests, other written scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular casecase, that are known by the attorney for the Commonwealth to be within the possession, custody, or control of the Commonwealth;

Any books, papers, documents, tangible objects, buildings,or buildings or places, or copies or portions thereof, that are within the possession, custody, or control of the Commonwealth, provided that the attorney for the Commonwealth may object as to the reasonableness of the request;

All relevant police reports, exceptsubject to exemptions as provided in this section or otherwise providedrequired by statute;statute.

For purposes of this subdivision, "police reports" means any formal, written report of investigation by any law-enforcement officer, as defined in § 9.1-101, including reports of interviews of witnesses but not including notes or drafts;

All relevant reportsstatements preparedof byany annon-expert expert witness whom the Commonwealth intendsis required to calldesignate  duringon itsa casewitness inlist chief,pursuant when such reports relate to hissubsection expectedJ. testimony.

The Commonwealth shall disclose any statements of rebuttal witnesses not previously disclosed prior to the beginning of its rebuttal case.

For purposes of this subdivision, "statements" means a statement written or signed by the witness, a verbatim transcript, or an audio or video recording.

This subdivision shall not limit the disclosure of police reports under subdivision 3, whether or not such reports contain accounts of statements made by prospective witnesses.

ForIf good cause, the attorneyaccused forprovides thewritten Commonwealthnotice mayfor withholddiscovery orunder redactthis personallysection identifyingand information to protect the personalCommonwealth orprovides financial security of a victim or witness or medical records, or condition the disclosure of such informationdiscovery, on restricting copying or dissemination of such information, including limiting disclosure to the accused'saccused counsel.shall:

The1. accused may file a motion to compel disclosure of any information withheld or redacted.

ThePermit courtthe hearingCommonwealth suchwithin motiona afterreasonable hearingtime, frombut thenot partiesless than 10 days before trial or sentencing, to inspect, copy, or photograph any written reports of autopsy examinations, ballistic tests, fingerprint, blood, urine, and reviewingbreath theanalyses, redactedand information,other asscientific necessary,tests that may approvebe within the redactionaccused's forpossession, goodcustody, causeor shown;control and that the accused intends to proffer or introduce into evidence at the trial or sentencing;

order2. the production of the redacted material under condition as the court deems appropriate;

orDisclose orderwithin thea redactedreasonable materialtime, but not less than 10 days before trial, whether he intends to beintroduce producedevidence forto failureestablish an alibi and, if so, the accused shall disclose the place at which he claims to showhave goodbeen cause.at the time of the commission of the alleged offense;

3.

If he intends to rely upon a defense as provided in § 19.2-168, permit 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, provided, however, that no statement made by the accused in the course of an examination shall be used by the Commonwealth in its case-in-chief, whether the examination shall be with or without the consent of the accused;

and 4.

Disclose all relevant statements, as defined in subdivision B 4, of any non-expert witness, other than the defendant, whom the defense is required to designate on a witness list pursuant to subsection J.

The accused shall disclose any statements of surrebuttal witnesses, not previously disclosed, prior to the beginning of it surrebuttal case.

IfWhenever the accusedCommonwealth filesintends ato writtenintroduce noticeexpert inopinion accordancetestimony withat subsectiontrial, B,the attorney for the accusedCommonwealth shall permitnotify in writing the Commonwealthaccused of the Commonwealth's intent to inspect,present copy,such ortestimony photographnot (i)later anythan written14 reportsdays ofbefore autopsytrial, examinations;or as otherwise ordered by the court.

ballisticThe tests;notice shall include the witness's name and contact information, a summary of the witness's qualifications, the substance of the facts and opinions to which the witness is expected to testify, a summary of the grounds for each opinion, and copies of written reports, if any, prepared by the witness.

fingerprint,Whenever blood,the urine,accused andintends breathto analyses;introduce expert testimony at trial, he shall notify the attorney for the Commonwealth in writing of the intent to present such testimony not later than seven days before trial, or as otherwise ordered by the court.

andThe othernotice scientificshall testsinclude thatthe arewitness's withinname theand possession,contact custody,information, ora controlsummary of the accusedwitness's andqualifications, that the accusedsubstance intendsof to introduce in evidence at the trialfacts or sentencing and (ii)opinions resultsto orwhich reportsthe ofwitness physicalis orexpected mentalto examinationstestify, ora tests,summary measurements,of or experiments made in connection with the case,grounds orfor copieseach thereof,opinion, within the possession and controlcopies of thewritten accusedreports, thatif theany, accused intends to introduce in evidence at the trial or that were prepared by a witness whom the accusedwitness. intends to call at the trial, when such results or reports relate to his expected testimony.

SuchWith dutyleave toof providecourt discoveryfor pursuantgood tocause thisshown, subsectionthe shallparties bemay insupplement additionthe tonotice anyof dutyexpert towitness providetestimony, discoveryand pursuantthe toCommonwealth Rulemay 3A:11offer ofwritten thenotice Rules of Supremerebuttal Courtexpert ofwitness Virginia.testimony.

B.When such testimony is allowed, the court shall require disclosure compliant with the provisions of this subsection as to the testimony to be offered by the expert.

Where a party intends to introduce expert testimony through a representative of the Department of Forensic Science, a party may provide the other party with a copy of a certificate of analysis prepared by the Department of Forensic Science and signed either by hand or by electronic means by the person performing the analysis or examination, in satisfaction of the requirements of this subsection.

If the court finds that a party has failed to provide this notice in a timely manner, the court may grant such relief as it deems appropriate, including the granting of a continuance or the exclusion of the expert testimony.

IfA atnotice anyby time during the course of the proceedings it is brought to the attention of the court that the attorney for the Commonwealth or the accused hasunder failedsubsection toB complyshall withbe thismade section,at theleast court10 maydays orderbefore the Commonwealthday orfixed thefor accusedtrial. to permit the discovery or inspection, grant a continuance, or prohibit the Commonwealth or the accused from introducing evidence not disclosed, or the court may enter such other order as it deems just under the circumstances.

The notice shall include all relief sought under this section.

F.

Neither the Commonwealth nor the accused shall be required to disclose mental impressions, opinions, theories, or conclusions of attorneys or their agents.

G.

The Commonwealth and the accused shall agree as to the time, place, and manner of making the discovery and inspection permitted under this section.

If the parties are unable to agree, upon motion of either party the court shall enter an order as to the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just, including imposition of an award of attorney fees or other appropriate sanction if the failure of a party to agree as to the time, place, and manner of making the discovery and inspection is deemed unreasonable.