Discovery in a criminal case in Virginia is the process of the prosecutor providing the person accused of a crime or his attorney with certain evidence that he plans to use. Discovery can be reciprocal, which means that the defendant may also have to provide evidence to the prosecutor. While prosecutors are required to liberally disclose its evidence to the accused person in some states, Virginia’s rules are more restrictive. However, you do have a constitutional right to obtain exculpatory evidence against you.
What Exculpatory Evidence Are You Entitled to If You Are Charged With a Crime?
In a famous U.S. Supreme Court Case, Brady vs. Maryland, the court ruled that defendants have a constitutional right to receive exculpatory evidence in the prosecutor’s possession or control. This is known as Brady material. Exculpatory evidence can be one of the following:
- Any material that is relevant to guilt or punishment that is favorable to the accused.
- Evidence that tends to show the defendant is innocent.
- Evidence that tends to discredit or impeach a prosecution witness.
- Evidence that tends to reduce the seriousness of the offense or lessen the punishment.
Although somewhat limited, exculpatory evidence can include a variety of types of evidence. Some examples of exculpatory evidence include the following:
- Prior inconsistent statements of a prosecution witness to anyone else.
- Criminal record of felonies and crimes of moral turpitude, such as lying, stealing, or cheating of prosecution witnesses.
- Any plea agreements, promises, or other deals between the witness for the Commonwealth and the prosecution that is made in exchange for the person’s testimony.
- Eyewitnesses who failed to identify the accused in either a live or photograph line-up.
- Statements of other witnesses who exonerate the accused, minimize his involvement in the crime, support his defense, contradict the prosecutor’s theory of the case, or refute other witnesses called by the prosecutor.
- Other evidence showing the bias of prosecution witnesses.
What Are the Consequences of Failing to Provide Exculpatory Evidence?
There are a variety of sanctions that could be imposed if the prosecutor fails to provide you with the exculpatory evidence you are entitled to under the constitution. The precise penalty will be determined by the judge and will depend in part where your case is in the criminal process when the violation is discovered. Possible consequences include:
- Continuance of your criminal case and a delay in your trial date.
- Declaration of a mistrial.
- Exclusion of certain evidence that the prosecutor would have used against you.
- Retrial of your case after a successful appeal.
- Finding of an ethical violation.
- Imposition of a fine.
If you have been charged with a crime, you need the help of an experienced criminal defense attorney who understands the importance of conducting a thorough investigation in your case as well as obtaining and reviewing discovery materials from the prosecution. To learn how our criminal defense team can help you fight the criminal charges you face, call our office to schedule a free consultation.
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