Sunday, June 16, 2019
Proposed Comment to Virginia Rules of Professional Conduct Would Require Prosecutors to Specifically Identify Exculpatory Evidence
Imagine that Defendant Dan is charged with murder. During his preparation for trial, Prosecutor Peters learns that Alternate Suspect Samuels was investigated by police. This investigation of Samuels is seen in four pages of documents from the police department, and Peters has 1,500 pages of discovery, including the Samuels documents, he will have to turn over to Public Defender Parker. In most jurisdictions, a prosecutor like Peters could "bury the lede" by including the Samuels documents in the middle of he 1,500 pages of discovery and hope that an overburdened public defender like Parker doesn't spot the needle in the haystack. But, if a proposed comment to Virginia Rules of Professional Conduct passes, that could all change.
Virginia Rule of Professional Conduct 3.8(d) states that
A lawyer engaged in a prosecutorial function shall:....
make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court....
The proposed comment would add the following:
 Paragraph (d) requires disclosure of the existence of exculpatory evidence known to the prosecutor. As referred to in Comment 4, the duty is dependent on actual knowledge. Once the prosecutor knows particular evidence is exculpatory, the prosecutor must timely identify and disclose that evidence.
In other words, under the proposed comment, the prosecutor in the example couldn't simply do a "document dump;" instead, he would have to specifically identify the Samuels documents as exculpatory when disclosing them to the defense.
As you might imagine, this has led to different responses. Stacy Ludwig, who heads the Justice Department's professional responsibility office, said, "By requiring the government to analyze and characterize evidence, [the proposed comment] undermines the adversary system by casting the government in the role of defense 'valet.'" On the other hand,
David Damico, a veteran criminal defense attorney in Roanoke, said the amended rule could have benefits by limiting gamesmanship by prosecutors utilizing "the evidence haystack" to obscure exculpatory material, particularly in cases in which police have gathered hours of "body cam" and police cruiser video footage, cellphones or other electronic evidence.
As you might imagine, I agree with Damico, hope the comment is added, and think that the comment should serve as a model for other states to follow. The goal of the adversary system is to have the prosecution present a vigorous case for the State and the defense to provide a vigorous case for the defendant, with the hope being that this clash gets us closer to the truth. But this adversarial process ------> truth process only works if the jury hears all of the pertinent evidence.
The goal of a "document dump" is to hide the ball from defense counsel...so that ball is also hidden from the jury. That not only disrupts the adversarial process but also greatly increases the chances of a wrongful conviction. The proposed comment might make the prosecution a valet for the defense, but if it decreases the chances of a wrongful conviction, that's a small price to pay.