Virginia

Overview

Virginia has taken important steps toward recognizing and institutionalizing Brady and Giglio obligations—most notably through its public decertification database and the 2021 passage of police accountability laws. Yet, despite these reforms, the state still lacks a unified or enforceable system to ensure that law enforcement misconduct is consistently disclosed to prosecutors and defense counsel. There is no statutory requirement for prosecutors to maintain Giglio or “Do Not Call” lists, and no mandate for law enforcement agencies to report credibility-impairing findings to Commonwealth’s Attorneys. As a result, practices vary widely across Virginia’s 133 independent local jurisdictions. While the Commonwealth has made disclosure more feasible, it has yet to make candor mandatory.

Brief Description of Legal Landscape

Criminal prosecutions in Virginia are led by elected Commonwealth’s Attorneys in each of the 95 counties and 38 independent cities. These prosecutors operate independently with no centralized disclosure policy or enforcement mechanism. The Office of the Attorney General of Virginia may participate in limited prosecutions or appeals, but has no supervisory authority over local prosecutors.

Disclosure obligations are governed by:

• Virginia Rules of Supreme Court, Rule 3A:11(b): Requires disclosure of exculpatory and impeachment evidence to the defense.

• Virginia Rules of Professional Conduct, Rule 3.8(d): Requires prosecutors to disclose evidence tending to negate guilt or mitigate sentencing, including credibility-impairing material.

• Virginia Freedom of Information Act (FOIA), § 2.2-3705.1: Exempts most personnel records, including law enforcement internal affairs files, from public access unless specifically released by the agency.

Certification and decertification of law enforcement officers is governed by the Virginia Department of Criminal Justice Services (DCJS), which maintains a public decertification list under the authority of 2020 and 2021 police reform laws.

Historical Context

Until recently, Virginia was among the least transparent states when it came to officer misconduct. In the wake of George Floyd’s murder and national scrutiny of law enforcement, the Virginia General Assembly passed a series of reform bills in 2020 and 2021. These included:

• Expanding the DCJS’s power to decertify officers for misconduct, including dishonesty and excessive force;

• Requiring law enforcement agencies to report decertification-eligible conduct;

• Mandating a public database of decertified officers, launched in 2022.

However, these legislative changes focused primarily on removing unfit officers from policing, not ensuring that those with impeached credibility are excluded from testifying. No corresponding legal or procedural mandate was created to require prosecutors to consult the decertification list, let alone to track officers who have not been decertified but whose misconduct is still Giglio-relevant.

Public defenders and criminal defense attorneys continue to report challenges in accessing internal affairs records or verifying whether a testifying officer has a history of misconduct—particularly in jurisdictions with less cooperative Commonwealth’s Attorneys.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

Virginia’s Constitution guarantees due process under Article I, Section 11 and confrontation rights under Article I, Section 8, consistent with federal guarantees under the Fifth, Sixth, and Fourteenth Amendments.

Relevant statutes and procedural rules include:

• Rule 3A:11(b): Mandates that prosecutors disclose any evidence “which tends to exculpate the accused or reduce punishment,” including impeachment material.

• Rule 3.8(d), Virginia Rules of Professional Conduct: Establishes an ethical obligation to disclose any evidence that tends to negate guilt or mitigate punishment.

• Code of Virginia § 9.1-600 et seq.: Grants the DCJS authority over certification and decertification of law enforcement officers and mandates public reporting of final actions.

Notably, there is no legal requirement for:

• Law enforcement agencies to notify prosecutors of sustained findings of dishonesty or bias;

• Prosecutors to maintain lists of officers with credibility-impairing misconduct;

• Automatic disclosure of DCJS decertification findings in relevant criminal cases.

Relevant Case Law and Judicial Interpretations

• Commonwealth v. Tuma, 285 Va. 629 (2013): Affirmed that prosecutors must disclose favorable evidence in their possession, including that held by police.

• Robinson v. Commonwealth, 231 Va. 142 (1986): Held that failure to disclose impeachment material can constitute reversible error if the information is material to the outcome.

• Walker v. Kelly, 589 F.3d 127 (4th Cir. 2009): A federal habeas decision applying Brady principles to Virginia prosecutors who failed to disclose prior false statements by a key witness.

While Virginia courts have reinforced the importance of Brady compliance, they have not imposed any systemic or procedural standards for how prosecutors or police must operationalize Giglio duties.

Implementation and Enforcement

Law Enforcement Policies and Training

Law enforcement agencies across Virginia conduct their own internal affairs investigations. While serious misconduct may result in referral to DCJS for decertification review, many sustained findings—especially for lesser violations like dishonesty, bias, or excessive force—are not reported or shared with prosecutors unless explicitly required by the case.

The DCJS decertification list provides some public accountability. As of 2023, it includes the names of officers decertified for dishonesty, criminal convictions, and certain types of misconduct. However:

• It only includes final actions—pending or internal investigations are not listed;

• It does not provide case cross-referencing tools for prosecutors or defense attorneys;

• There is no statewide policy requiring prosecutors to consult this list before calling officers to testify.

Training on Brady/Giglio duties is not uniformly required for law enforcement officers or prosecutors in Virginia. The Department of Criminal Justice Services provides optional continuing education modules, but there is no statutory mandate for annual disclosure training.

Prosecutorial Practices

Prosecutors in larger jurisdictions such as Fairfax, Norfolk, and Richmond may maintain internal logs of problematic officers. These lists—sometimes referred to as "Giglio files" or "Do Not Call lists"—are almost always nonpublic, inconsistently maintained, and nontransferable across jurisdictions. Smaller jurisdictions often have no such lists at all.

Prosecutors generally rely on voluntary disclosures from law enforcement or defense motions to trigger deeper reviews. There is no system for prosecutors to be automatically alerted when POST decertifies an officer or when new credibility concerns emerge.

Oversight of prosecutorial conduct falls to the Virginia State Bar, but disciplinary action for Brady or Giglio violations is exceedingly rare and typically triggered only by egregious or intentional misconduct.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Officer Jeffrey Van Doren (Virginia Beach, 2019)
   Van Doren was decertified after internal findings that he had falsified reports in multiple arrests. Prosecutors continued calling him as a witness until the decertification was finalized. Several convictions were subsequently challenged, but no uniform review was undertaken.

2. Charlottesville Police Department Internal Misconduct (2018–2021)
   Multiple officers were the subject of sustained internal affairs findings related to excessive force and dishonesty. Local defense attorneys filed motions for disclosure, but prosecutors claimed no duty to investigate unless the information was already in their possession.

3. Loudoun County Sheriff’s Deputy Resignation (2020)
   An officer resigned after lying during an internal investigation. There was no disclosure to the Commonwealth’s Attorney’s Office, and the officer testified in court before the issue came to light via civil litigation. The case illustrated the lack of internal communication between police and prosecutors.

Outcomes and Implications

These examples underscore the inadequacy of informal, discretionary disclosure systems. Officers with known credibility issues continue to testify, and defense attorneys are often left to discover these problems on their own. Without a formal reporting structure or proactive prosecution-led reviews, the constitutional guarantee of a fair trial remains at risk.

Challenges and Gaps

Identified Issues within the State’s System

• No Required Giglio Tracking: Prosecutors are not obligated to maintain or consult lists of credibility-impaired officers.

• No Mandatory Reporting from Police: Departments are not required to inform prosecutors about sustained misconduct.

• Incomplete Public Records: The DCJS database includes only final decertification actions, not internal affairs findings or pending cases.

• Lack of Oversight: There is no audit body or uniform enforcement of disclosure practices across the Commonwealth.

Legislative and Institutional Barriers

While the Virginia legislature has made progress on policing reform, attempts to expand prosecutorial accountability or mandate disclosure infrastructure have faced pushback. Law enforcement unions and some local prosecutors oppose reforms they perceive as limiting discretion or creating new liabilities. Without legislative direction, systemic improvement remains unlikely.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Giglio Lists
   Require each Commonwealth’s Attorney to maintain a confidential, regularly updated list of officers with sustained credibility-impairing misconduct.

2. Establish Police-to-Prosecutor Notification Duties
   Enact legislation obligating police departments to notify prosecutors within 30 days of sustained findings involving dishonesty, bias, or excessive force.

3. Integrate DCJS with Prosecutorial Systems
   Develop a secure interface between DCJS’s decertification database and prosecutorial offices, allowing real-time alerts for affected cases.

4. Amend Rule 3A:11 to Explicitly Include Officer Misconduct
   Clarify that disclosure obligations extend to sustained internal affairs findings and POST disciplinary actions.

Recommendations for Enhanced Transparency and Accountability

1. Expand the DCJS Public Database
   Include pending misconduct investigations and final internal affairs findings in a redacted but searchable format, accessible to defense attorneys and oversight bodies.

2. Establish a Giglio Compliance Unit
   Create a division within the AG’s Office or Judicial Council to audit disclosure practices, train prosecutors, and provide uniform guidance.

3. Mandate Annual Training on Disclosure Law
   Require all law enforcement officers and prosecutors to complete Giglio and Brady compliance training as a condition of employment and certification.

4. Reform FOIA for Credibility-Related Records
   Amend Virginia’s FOIA exemptions to allow limited, redacted access to sustained misconduct findings relevant to courtroom testimony.

Conclusion

Virginia has made meaningful progress by increasing transparency around police certification and decertification, but prosecutorial candor remains largely discretionary and disconnected. Without mandates requiring law enforcement to report, prosecutors to track, or defense counsel to receive critical information about officer credibility, Brady and Giglio remain underenforced. The Commonwealth has the tools to institutionalize candor—it must now commit to using them. Until then, justice in Virginia remains vulnerable to silence.