The Virginia State Bar’s Indigent Defense Task Force has approved by a vote of 53-3 a proposed rule which would, among other things, entitle criminal defendants to obtain police reports in criminal cases. As it currently stands, a defendant has only a limited right to obtain information about the case against him. This limited discovery makes it difficult for an accused person to mount an appropriate defense, and in some cases requires courts to overturn criminal convictions.
The motivation to provide police reports to defendants largely comes from a pair of recent, high-profile cases where young men were convicted of murder and prosecutors withheld exculpatory information which tended to show that the defendants were innocent. The United States Supreme Court requires prosecutors to hand over exculpatory material, and a criminal conviction will be overturned if it is later learned that the prosecutors did not do so. Currently, Virginia entrusts prosecutors to look at the evidence and turn over anything that is exculpatory. But, prosecutors often don’t realize that material is exculpatory because they don’t know what the defense is. As a result, the prosecutor has no way of knowing whether a particular piece of evidence is important to a defendant without more context.
Prosecutors have expressed three primary concerns about the new procedure. First, they argue that sensitive information about the victim might be released to the defendant. However, the proposed rule contains a provision allowing prosecutors to redact personal identification information. Prosecutors also argue that the additional discovery will create an administrative burden. But, federal prosecutors and prosecutors in most other states already provide this information, and there seems to be no indication that the criminal justice system has shut down in those jurisdictions. Finally, prosecutors have argued that defendants might fabricate a defense using the information contained in the police reports. This argument was squarely rejected by the federal court that reviewed one of the wrongful convictions that led to the proposed rule change. The federal court noted that it is for a jury to decide whether a witness or defendant is being truthful when they testify, and that it is unethical for a prosecutor withhold information showing that the defendant might be innocent for fear that it might be used by the defendant for that purpose.
The Supreme Court of Virginia will now consider the proposed rule and the arguments of the proponents and opponents of providing this information to criminal defendants.