Trial by Ambush
Virginia ambushes its citizens.
In most states, every criminal trial has a process where each side tells the other what evidence it has. This is fundamental to a basic system of justice. Without it, an accused person is not guaranteed to be prepared for trial. If the accused does not know what the evidence is, he does not know what the issues are. The Constitutions of the United States and Virginia both guarantee the rights of a due process and a fair trial. But Virginia doesn’t think you need to know the evidence in order to have a fair trial. That’s why lawyers call this a “Trial by Ambush” state.
While other states and the United States grant broad access to the evidence, in Virginia the accused is entitled only to what he already knows. That’s fair, right? The Supreme Court of Virginia says it is. "There is no general constitutional right to discovery in a criminal case, even where a capital offense is charged.” Strickler v. Commonwealth, 241 Va. 482, 490-91, ... cert. denied, 502 U.S. 944 (1991).
When accused of a criminal misdemeanor in Virginia, the prosecution only needs to tell you what you said or wrote and what your criminal history is. And only if they plan to use it in their case.
When accused of a felony, and only if you ask for it, and only if you can show it is relevant to your case, you are also permitted to see and copy books and papers and tangible items in the prosecution’s possession. You specifically are not permitted to know about any statements made by prosecution witnesses. Nor can you see the police reports, or the notes of any other investigator for the prosecution.
What? No police reports? Nope. Not even in a death penalty case.
It gets worse. What little information they do have to give you is made nearly useless by how they give it. For a misdemeanor in many jurisdictions, that information is not provided to the attorney early or even in writing. In Fairfax County that information is given orally to the attorney on the morning of the trial. Prince William County has recently adopted the same model. While the judge is on the bench and other trials are ongoing, your attorney may be trying to absorb your record and your statements in the noise and confusion of the hallway outside the courtroom.
Criminal trials are supposed to favor the accused. Proving guilt is supposed to be the highest and most difficult standard to meet. But in Virginia, the pre-trial discovery system is so worthless and pro-prosecution as to be barely worth the name. It is an embarrassment to a state that elsewhere holds itself to the highest standards of civility and fairness.
Trial by Ambush is the single worst and most unfair aspect of Virginia criminal law. Virginia cannot claim to have a truly fair or modern system of justice until the people demand the legislature adopt a better system of pre-trial discovery.