Discovery (in Virginia)

The Virginia legislature has passed SB1563. There are several provisions which should be adopted in military cases.

D. Whenever the Commonwealth intends to introduce expert opinion testimony at trial, the attorney for the Commonwealth shall notify in writing the accused of the Commonwealth’s intent to present such testimony not later than 14 days before trial, or as otherwise ordered by the court. The 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.

There is a reciprocal requirement for the defense. The new VA rule is consistent with federal practice under Fed. R. Crim. Pro 16(a)(G), and with then Judge D. Vowell (Army) in her court-martial scheduling orders.

J. Each party shall provide to the opposing party a written list of names and addresses, if available, of all witnesses expected to testify at trial. Disclosure of rebuttal and surrebuttal witnesses is not required under this subsection. The Commonwealth shall provide a list no later than seven days before trial; the accused shall provide a list no later than three days before trial. Upon motion of either party, the court may modify the requirements of this subsection for good cause shown.

In military cases, this can be an issue where the list is not required until three days before trial. Anyone received a government witness list on Friday, before the Monday trial, and had to deal with a lengthy list of people not necessarily identified through discovery or investigative reports–huuuum? And then have to figure out if you need additional witnesses or investigation of your own? And then tried to get a delay to deal with it—huuum?

K. Upon indictment, waiver of indictment, or return of information, or prior to entry of a guilty plea or plea of nolo contendere, whichever first occurs, the attorney for the Commonwealth shall disclose to the accused all information in its possession, custody, or control that tends to negate the guilt of the accused, mitigate the offense charged, or reduce punishment, subject to modification or limitation by the court. Information that tends to impeach the Commonwealth’s witnesses shall be produced no later than seven days prior to the date scheduled for trial. The duty to disclose under this subsection shall not require any request, demand, or notice by the accused and shall be continuing in nature, as otherwise required by law.

The obligation to provide Brady material is an ongoing issue and has been addressed by some federal courts regarding IAC claims; it allows an accused to make an informed decision. I’m not sure it’s a big issue in the military because of how PTA’s are timed or negotiated, but it would be a welcome reform.