(These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense of the Plowshares case.)

By Jon Katz

Compared to the other jurisdictions where I practice (Maryland, the District of Columbia, and federal courts), the governing Virginia criminal discovery rules are the thinnest. The Virginia District Court discovery rules are particularly razor-thin, while the Circuit Court discovery rules are a little less thin.

Unfortunately, Virginia has not joined the jurisdictions that require providing criminal defendants a prosecution witness's written statements and substance of oral statements after the witness testifies for the prosecution. This rule is known as the Jencks Act, 18 U.S.C. § 3500. All federal prosecutions are governed by the Jencks Act, which also governs prosecutions in the District of Columbia Superior Court. D.C. SCR-Crim. Rule 26.2. The Jencks Act also applies in Maryland. Carr v. State, 284 Md. 455 (1979). 

However, the Virginia Supreme Court generally refuses to apply Jencks, having concluded that the Jencks rule "is not ordinarily of constitutional dimension but is a rule of evidence governing trials before federal tribunals." Bellfield v. Com., 215 Va. 303 (1974), cert. denied,  420 U.S. 965 (1975); see also U.S. v. Augenblick, 393 U.S. 348, 356 (1969) (the Supreme Court's "Jencks decision [353 U.S. 657 (1957)] and the Jencks Act were not cast in constitutional terms"). 

The wise approach for all prosecutors is to provide Jencks material, whether or not Jencks applies in their jurisdiction. Otherwise, the prosecution runs too great a risk of not releasing exculpatory/Brady material, 373 U.S. 83 (1963), which the prosecution always has the obligation to divulge to the defense. Letting prosecutors decide what is exculpatory evidence is like letting the fox guard the henhouse; even well-intentioned prosecutors are not all-knowing people who can tell whether material is the least bit exculpatory. 

In any event, even if Virginia adopts the Jencks rule, the rule is no picnic in terms of its making Jencks material available only after the prosecutions' direct examination of a witness concludes. Such material often is too voluminous to sufficiently review, digest, and address with such a short timespan. Judges should liberally order earlier release of Jencks material, to avoid an unfair trial. (July 24, 2006). 

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