GOVERNOR'S VETO

Pursuant to Article V, Section 6, of the Constitution of Virginia, I veto Senate Bill 464. This bill requires prosecutors to file copies of all witness summonses with the clerk of the circuit court and to provide defendants or defense counsel with copies of the summonses.

First, the overwhelming majority of witness subpoenas issued in criminal cases in the circuit courts are already publicly filed with the clerk of the local circuit court by the local Sheriff’s Office or other law-enforcement personnel who serve civil process. Rule 3A:12(c) of the Rules of the Supreme Court of Virginia requires any law-enforcement officer who executes a subpoena to “make return thereof to the court named in the subpoena.” Because witness subpoenas necessarily contain the witness’s name and address, Rule 3A:12(c) functionally mandates the public filing of the witness’s address, as well as the time and date on which the witness was served.

Second, Virginia defense attorneys can already obtain witness names and addresses from the Commonwealth’s Attorney by requesting discovery under existing Rule 3A:11, which obligates the Commonwealth’s Attorney to “[p]rovide to the accused a list of the names and, if known, the addresses of all persons who are expected to testify on behalf of the Commonwealth at trial or sentencing.” Rule 3A:11(c)(1)(a) enables Commonwealth’s Attorneys to protect fearful victims, witnesses, and their family members by redacting their workplace, email, phone number, and residential address from discovery. Obtaining witness addresses is simple. The defense attorney can request discovery from prosecutors, obtain local electronic access to court files, or otherwise go to the courthouse to examine subpoena returns in the clerk’s office.

At its heart, this bill seeks to increase prosecutors’ mandatory duties and subject criminal penalties on prosecutors for failure to comply. The effect of this bill will be to create an additional, and arguably frivolous, mechanism for criminal defense attorneys to prevent critical prosecution witnesses from testifying and enable defense attorneys to cast false doubt on prosecutors’ adherence to legitimate due process protections already established in Virginia law.

The underlying bill is unnecessary and duplicative of other provisions of law and court rules.

Accordingly, I veto this bill.