The Law Firm of

Erin L.T. Ranney, PLLC


Phone:   (804) 318-1151  or (804) 212-5252
 
The Criminal Discovery Process
One of the most difficult conversations that we have with criminal defendant clients is the explanation of the criminal discovery process in Virginia.  Criminal discovery and reciprocal discovery (discovery owed to the Commonwealth by a defendant!) is governed largely by the Rules of the Supreme Court of Virginia.  These rules have recently changed, however those rules only apply in Circuit Court matters.  Those sections are: 
Rule 3A:11 - Circuit Court Discovery
Rule 3A:11. Discovery and Inspection.

(a) General Provisions. — 
(1) This Rule applies to any prosecution for a felony in a circuit
court and to any misdemeanor brought on direct indictment.
(2) The constitutional and statutory duties of the Commonwealth’s attorney to provide
exculpatory and/or impeachment evidence to an accused supersede any limitation or restriction
on discovery provided pursuant to this Rule.
(3) 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 Rule.
(4) Any material or evidence disclosed or discovered pursuant to this Rule 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.

(b) Discovery by the Accused. — Upon written motion of an accused a court shall order the
Commonwealth’s attorney to: (1) Permit the accused to inspect and review any relevant reports
prepared by law enforcement officers and made in connection with the particular case, including
any written witness statements or written summaries of oral statements contained within such
reports, that are known to the Commonwealth’s attorney to be in the possession, custody or
control of the Commonwealth. Nothing in this Rule requires that the Commonwealth provide the
accused with copies of the relevant law enforcement reports, although it may do so in its
discretion. The court’s order providing for inspection and review of these reports shall be subject
to the provisions of subparts (c)(1) and (c)(2) of this Rule regarding redaction and restrictions on
dissemination of designated material.
(2) Permit the accused to inspect, review and copy or photograph any relevant:
(A) written or recorded statements or confessions, or the substance of any oral statements
or confessions, made by the accused to any law enforcement officer, that are known to the
Commonwealth’s attorney to be within the possession, custody or control of the Commonwealth;
(B) written or recorded statements or confessions, or the substance of any oral statements
or confessions, made by the accused to any person other than a law enforcement officer, that the
Commonwealth intends to introduce into evidence against the accused at trial;
(C) written or recorded statements, or the substance of any oral statements, made by a
co-defendant or co-conspirator that the Commonwealth intends to introduce into evidence
against the accused at trial; and
(D) 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 known by the Commonwealth’s attorney to be within the possession,
custody, or control of the Commonwealth.
(3) Permit the accused to inspect, review and copy or photograph designated books, papers,
documents, tangible objects, recordings, buildings or places, or copies or portions thereof, that
are known by the Commonwealth’s attorney to be within the possession, custody, or control of
the Commonwealth, upon a showing that the items sought may be material to preparation of the
accused’s defense and that the request is reasonable.
(4)(A) Notify the accused in writing of 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.
(B) Nothing in subparts (b)(4)(A)(i) and (ii) of this Rule shall render inadmissible an
expert witness’s testimony at the trial or sentencing further explaining the opinions, bases and
reasons disclosed pursuant to this Rule, or the expert witness’s qualifications, just because the
further explanatory language was not included in the notice and disclosure provided under this
Rule.
Providing a copy of a certificate of analysis from the Virginia Department of Forensic Science
or any other agency listed in Virginia Code § 19.2-187, signed by hand or by electronic means
by the person performing the analysis or examination, shall satisfy the requirements of subparts
(b)(4)(A)(i) and (ii) of this Rule.
(5) 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 subpart (c)(1) of this Rule and to any protective orders entered by the court pursuant to
subpart (g).
(6) This Rule does not authorize the discovery or inspection of the work product of the
Commonwealth’s attorney, including internal reports, witness statements, memoranda,
correspondence, legal research or other internal documents prepared by the office of the
Commonwealth’s attorney or its agents in anticipation of trial.
(7) This Rule does not authorize the discovery of the names and/or personal identifying
information of confidential informants whom the Commonwealth does not intend to call at trial
and with regard to whose identity the Commonwealth asserts it holds a privilege.

(c) Redaction and Restricted Dissemination Material. — (1) With regard to any material or
evidence provided pursuant to this Rule,
(A) the Commonwealth may redact the residential address, telephone number, email
address and place of employment of any witness or victim, or any member of a witness’s or
victim’s family, who satisfies the conditions outlined in §19.2-11.2 of the Code of Virginia. 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 Rule; and
(B) If the Commonwealth redacts personal identifying information pursuant to this
subpart of the Rule, the accused may file a motion seeking disclosure of the redacted
information. Should the court find good cause for disclosure, it may order 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 subpart (c)(2) of this Rule.
(2) The Commonwealth may designate evidence or material disclosed pursuant to this Rule
as “Restricted Dissemination Material” by prominently stamping or otherwise marking such
items as “Restricted Dissemination Material.”
(A) The Commonwealth may designate any evidence or material subject to disclosure
pursuant to this Rule as “Restricted Dissemination Material,” without supporting certification, if
the accused’s attorney agrees to the designation.
(B) 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 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.
(C) Except as otherwise provided by order of the court or these Rules, “Restricted
Dissemination Material” may only be disclosed to the accused’s attorney, the agents or
employees of the accused’s attorney, or to 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.
(D) If the Commonwealth designates evidence or material as “Restricted Dissemination
Material” pursuant to subpart (c)(2)(B) of this Rule, the accused may at any time file a motion
seeking to remove that designation 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.”
(E) 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 Rule. The court
shall maintain such returned “Restricted Dissemination Material” under seal. Any material sealed
pursuant to this subpart 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 in its discretion deems appropriate.
(F) In any case in which an accused is not represented by an attorney, the
Commonwealth may file a motion seeking to limit the scope of discovery pursuant to this Rule.
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.

(d) Discovery by the Commonwealth. — If the court grants disclosure to the accused under
subpart (b) of this Rule, it shall also order the accused to: (1) Permit 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 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 of Title 19.2;
provided, however, that no statement made by the accused in the course of such an examination
disclosed pursuant to this Rule shall be used by the Commonwealth in its case-in-chief, whether
the examination was conducted with or without the consent of the accused.
(4)(A) Notify the Commonwealth in writing of the accused’s intent to introduce expert
opinion testimony at trial or sentencing and to provide 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.
(B) Nothing in subparts (d)(4)(A)(i) and (ii) of this Rule shall render inadmissible an
expert witness’s testimony at the trial or sentencing further explaining the opinions, bases and
reasons disclosed pursuant to this Rule, or the expert witness’s qualifications, just because the
further explanatory language was not included in the notice and disclosure provided under this
Rule.
Providing a copy of a certificate of analysis from the Virginia Department of Forensic
Science or any other agency listed in Virginia Code § 19.2-187, signed by hand or by electronic
means by the person performing the analysis or examination, shall satisfy the requirements of
subparts (d)(4)(A)(i) and (ii) of this Rule.
(5) Provide to 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
protective order entered by the court pursuant to subpart (g) of this Rule.

(e) Time of Motion. — A motion by the accused under this Rule must be made at least 10
calendar days before the day fixed for trial. The motion shall identify all relief sought pursuant to
this Rule. A subsequent motion may be made only upon a showing of cause why such motion
would be in the interest of justice.

(f) Time, Place and Manner of Discovery and Inspection. — The order granting relief under
this Rule shall specify in writing the time, place and manner of making the discovery and
inspection ordered. The court in its discretion may prescribe such terms and conditions as are
reasonable and just.

(g) Protective Order. — (1) 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 Rule. 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:
(A) a requirement that the parties not disclose the contents of any material or evidence
disclosed or discovered pursuant to this Rule in any public forum, including any website;
(B) a requirement that the parties not disclose the contents of any material or evidence
disclosed or discovered pursuant to this Rule to any third-party who is not an agent or employee
of the parties or an expert witness;
(C) authorization to either party to withhold the residential address, telephone number,
email address or place of employment of any witness not covered by the terms of subpart (c)(1)
of this Rule; or
(D) authorization for either party in appropriate circumstances to withhold from
disclosure or place additional restrictions on dissemination of information otherwise discoverable
but not exculpatory.
(2) 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.

(h) Continuing Duty to Disclose; Failure to Comply. — If, after disposition of a motion under
this Rule, counsel or a party discovers before or during trial additional material previously
requested or falling within the scope of an order previously entered, that is subject to discovery
or inspection under this Rule but has not previously been disclosed, the party shall promptly
notify the other party or their counsel or the court of the existence of the additional material. If at
any time during the pendency of the case it is brought to the attention of the court that a party has
failed to comply with this Rule or with an order issued pursuant to this Rule, the court shall order
such party to permit the discovery or inspection of materials not previously disclosed, and may
grant such other relief authorized by Virginia law as it may in its discretion deem appropriate.

Rule 7C:5 - General District Court Discovery

Rule 7C:5. Discovery.
(a) Application of Rule. This Rule applies only to the prosecution for a misdemeanor which may be punished by confinement in jail and to a preliminary hearing for a felony.
(b) Definitions. For purposes of discovery under this Rule 1) the prosecuting attorney is the attorney for the Commonwealth or the city attorney, county attorney, or town attorney, who is responsible for prosecuting the case; 2) if no prosecuting attorney prosecutes the case, the representative of the Commonwealth shall be the law enforcement officer, or, if none, such person who appears on behalf of the Commonwealth, county, city or town in the case.
(c) Discovery by the Accused. Upon motion of an accused, the court shall order the prosecuting attorney or representative of the Commonwealth to permit the accused to hear, inspect and copy or photograph the following information or material when the existence of such is known or becomes known to the prosecuting attorney or representative of the Commonwealth and such material or information is to be offered in evidence against the accused in a General District Court:
(1) any relevant written or recorded statements or confessions made by the accused, or copies thereof and the substance of any oral statements and confessions made by the accused to any law enforcement officer; and
(2) any criminal record of the accused.
(d) Time of Motion. A motion by the accused under this Rule shall be made in writing and filed with the Court and a copy thereof mailed, faxed, or otherwise delivered to the prosecuting attorney and, if applicable, to the representative of the Commonwealth at least 10 days before the day fixed for trial or preliminary hearing. The motion shall include the specific information or material sought under this Rule.
(e) Time, Place and Manner of Discovery and Inspection. An order granting relief under this Rule shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.
(f) Failure to Comply. If at any time during the course of the proceedings, it is brought to the attention of the court that the prosecuting attorney or representative of the Commonwealth has failed to comply with this Rule or with an order issued pursuant to this Rule, the court shall order the prosecuting attorney or representative of the Commonwealth to permit the discovery or inspection of the material not previously disclosed, and may grant such continuance to the accused as it deems appropriate.


Rule 8:15 - Juvenile and Domestic Relations Court Criminal Discovery

Rule 8:15. Discovery.
(a) Adult Criminal Case. In any cases involving adults charged with crime, the provisions of Rule 7C:5 shall govern discovery.
(b) Juvenile Delinquency Cases. In juvenile delinquency cases, when the juvenile is charged with an act that would be a felony if committed by an adult, or in a transfer hearing or a preliminary hearing to certify charges pursuant to § 16.1-269.1, the court shall, upon motion timely made by the juvenile or the Commonwealth's Attorney, and for good cause, enter such orders in aid of discovery and inspection of evidence as provided under Rule 3A:11.
In juvenile delinquency cases when the juvenile is charged with an act that would be a misdemeanor if committed by an adult, the court shall, upon motion timely made and for good cause, enter such orders for discovery as provided under Rule 7C:5.
(c) Other Cases. In all other proceedings, the court may, upon motion timely made and for good cause, enter such orders in aid of discovery and inspection of evidence as permitted under Part Four of the Rules, except that no depositions may be taken.
(d) In proceedings concerning civil support, the judge may require parties to file a statement of gross income together with documentation in support of the statement.

http://www.courts.state.va.us/courts/scv/rulesofcourt.pdf



Follow Us On: