by Peter Vieth, Virginia Lawyers Weekly November 4, 2019
ALEXANDRIA – The Supreme Court of Virginia will not enact language in the Virginia Rules that would require prosecutors to disclose “particular evidence” they know of that could help a criminal defendant. The court balked at a bar recommendation opposed by prosecutors.
A leader of the criminal defense lawyers’ organization called the court’s action “unconscionable.”
In March, on a 47-13 vote, the Virginia State Bar urged adoption of the proposed comment to Rule 3.8 of the Rules of Professional Conduct over the objections of many prosecutors. Advocates said the proposed language clarified that prosecutors should not make a “document dump” on defense counsel without pointing out any potential exculpatory information known to the prosecutor.
The proposal was commonly known as the “needle in the haystack” measure for requiring the identification of helpful information in a morass of discovery.
The proposed rule comment addressed a prosecutor’s reported disclosure of 200 hours of jailhouse phone recordings without specifying where a defendant had made helpful statements.
In an Oct. 24 order, the court declined to adopt the bar’s recommendation.
“Upon consideration of the said petition and the numerous comments submitted in response thereto, the Court rejects the proposed amendment,” the order read. The comments to the court were dominated by prosecutors’ letters in opposition.
Opposition by prosecutors
The effort to get official guidance on the issue started with a draft legal ethics opinion and later emerged as a proposed comment to Rule 3.8.
Prosecutors strongly opposed any suggestion that they had a duty to identify each and every piece of potentially exculpatory information, and many wrote to the Supreme Court this year.
That purported duty of identification “ignores the reality of day-to-day criminal law practice,” said Roy F. Evans, president of the Virginia Association of Commonwealth’s Attorneys. In a May 15 letter to the Supreme Court, Evans said many prosecutors in Virginia provide “open file” discovery because it is the most efficient and cost-effective method of meeting discovery and exculpatory evidence obligations.
“But if we were to also have a duty to direct a defendant to each piece of exculpatory evidence, this efficiency would be tossed out the window. Prosecutors under such a burden might well choose to provide only rule-based discovery rather than open file discovery,” Evans said.
“It is our opinion that ‘disclosure’ is synonymous with ‘production.’ If a prosecutor produces to the defendant all exculpatory evidence, he is not under some additional constitutional duty to ‘highlight’ that evidence as well,” Evans continued.
More than 25 prosecutors sent comments to the Supreme Court, endorsing Evans’ position or a similar statement from Suffolk Commonwealth’s Attorney C. Phillips Ferguson. Also writing to oppose the proposal were the two U.S. attorneys in Virginia and the head of the Justice Department’s Office of Professional Responsibility.
The National Association of Criminal Defense Attorneys and several public defenders endorsed the change.
After the Supreme Court’s rejection of the haystack duty language, the VACA said it was grateful the court listened.
“Our concerns were threefold,” said VACA executive director Michael Doucette. “One, this proposal would have greatly increased the workload of every prosecutor in Virginia. Not only would we have to meet our constitutional duty of ‘producing’ exculpatory evidence (which we fully endorse) but would need to ‘identify’ each piece of it as well,” Doucette said.
“At the same time, this proposed Comment would have done nothing to alleviate the amount of time defense counsel would need to take to review the material the prosecutor produced. Defense counsel would still need to review every page of discovery produced to see if it contained information that could be used effectively to promote the defense’s case theory at trial,” Doucette said.
“Two, this proposal would have expanded the ethical and disciplinary rules dealing with exculpatory evidence beyond how they have been interpreted by the courts. Such a dichotomy could create confusion and inconsistency among prosecutors in carrying out their duties to disclose this evidence,” Doucette continued.
“Three, the proposed Comment 5 could have been used to encourage disciplinary litigation. A broader interpretation of Rule 3.8(d) invited the use of an ethical rule as a tactical weapon in criminal litigation,” Doucette said.
Supporters of the proposal were disappointed.
“What possible reason would there be to allow them under the ethics rules to hide exculpatory evidence?” asked criminal defense lawyer John K. Zwerling at an Oct. 25 VSB meeting in Alexandria.
The president of the Virginia Association of Criminal Defense Lawyers said the court’s action is “unconscionable.”
“The Supreme Court’s order is yet another instance of the government generally, and the courts specifically, failing to hold prosecutors responsible for their failures to provide constitutionally mandated evidence and information to the defense,” said VACDL president Glen F. Koontz in a statement Oct. 29.
“Apparently it is unfair to require the prosecutors to sift through mountains of evidence that are within their possession and control, but perfectly fine to expect overworked and underfunded defense lawyers to do so. The result is more unfairness to those accused of crimes in our Commonwealth, in what is already an unfair system,” Koontz said.
Richmond lawyer Eric M. Page, immediate past chair of the VSB Ethics Committee, led the two-year effort to enact official language saying that a “needle-in-a-haystack” discovery maneuver is unethical.
“This is disappointing but not unexpected,” Page said Oct. 24. “It is very difficult to move the Supreme Court on matters opposed by prosecutors, even when the proposal is reasonable, justified and fully consistent with current obligations of prosecutors.”