Attorney General's Opinion 1991 #081






District court must consider circumstances of each case in determining whether agency, state or local, considered party to pending criminal prosecution for discovery purposes. Agency whose involvement makes it part of prosecution obligated to disclose relevant evidence through prosecuting attorney under discovery rules; not subject to subpoena duces tecum as nonparty. No provision of Freedom of Information Act places any records beyond reach of court's subpoena; subpoena duces tecum should not be refused solely because records subpoenaed exempt from mandatory disclosure under Act.

December 5, 1991

The Honorable J. Allen Walker
Judge, Loudoun County General District Court

1991 81

You ask whether a district court may issue a subpoena duces tecum in a criminal or traffic case to obtain records or other items from a public agency in the following situations:

1. Records requested from an agency of the Commonwealth in a prosecution.

2. Items requested from an agency of a county, city or town, in a prosecution by the Commonwealth.

3. Items requested from an agency of the Commonwealth in a prosecution by a county, city or town.

4. Items requested from an agency of a county in a prosecution by a city or town.

You also ask whether a subpoena may issue to a custodian of public records, whether or not the custodian is a party to the case, whose records are exempt under The Virginia Freedom of Information Act.

I. Applicable Statutes and Rules

Section 16.1-69.25 of the Code of Virginia provides:

Except as otherwise provided by general law, a judge of a district court may, within the scope of his general jurisdiction within the area which his court serves, issue warrants, summons, and subpoenas, including subpoenas duces tecum or other process, in civil and criminal cases, to be returned before his court, and may also issue fugitive warrants and conduct proceedings thereon in accordance with the provisions of §§19.2-99 through 19.2-104.

The last sentence of §16.1-131 provides that "[t]he provisions of Rule 3A: 12 of the Rules of the Supreme Court shall apply to the issuance of a subpoena duces tecum and punishment for failure to comply." 1

Rule 3A: 12(b) of the Rules of the Supreme Court of Virginia provides:

Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena shall command either (1) that the individual to whom it is addressed shall appear in person and with the items described either before the court or the clerk or (2) that such individual shall deliver the items described to the clerk. The subpoena may direct that the writing or object be produced at a time before the trial or before the time when it is to be offered in evidence.

Rule 3A: 11 governs discovery by the accused and the Commonwealth in felony cases in circuit courts. Rule 3A: 11(b)(1) establishes procedures for the accused to discover:

(i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case, or copies thereof, that are known by the Commonwealth's attorney to be within the possession, custody or control of the Commonwealth.

II. Status of Agency as Party to Prosecution Is Determined by Its Involvement in Case, Not by Identity of Level of Government Prosecuting Offense

A subpoena duces tecum is available to compel the production of material evidence from someone who is not a party to the legal action. Patterson v. Commonwealth, 3 Va. App. 1, 8, 348 S.E.2d 285, 289 (1986); Va. Sup. Ct. R. 3A: 12.1 The disclosure of evidence possessed by parties is controlled by the rules concerning discovery. Va. Sup. Ct. R. 7C: 5. In each of the situations about which you ask, the common issue is whether the agency having custody of the records or other items sought is a "party" to the criminal prosecution.

The prosecutor in a criminal case clearly is a party. See Va. Sup. Ct. R. 7A: 14(e) ("parties" who must agree to continuance in criminal or traffic cases defined as "the prosecution and the defendant"). The prosecuting attorney is the Commonwealth's attorney or city, county or town attorney, who is responsible for prosecuting the case. Va. Sup. Ct. R. 7C: 5(b).

With the exception of prosecuting attorneys, however, the parties to a case ordinarily are considered to be the persons whose names are designated on the record as plaintiffs or defendants. See 1990 Att'y Gen. Ann. Rep. 191, 192 ("party" distinguished from attorney acting as representative). A "party" is defined as "[a] person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually." Black's Law Dictionary 1122 (6th ed. 1990).

I am not aware of any statute or rule of law that automatically would make every government agency a party to every criminal prosecution brought by the government of which that agency is a part. There are, however, occasions when a government agency that is distinct from the office of the Commonwealth's attorney or other prosecutor may be considered part of the prosecution. A law enforcement agency or an agency providing services to the prosecution or police may have sufficient involvement in the prosecution of a criminal matter that it becomes, in effect, a party to the case.

For example, the Department of State Police, an independent agency of the Commonwealth established under §52-1, is charged with an affirmative obligation to conduct investigations upon the request of a Commonwealth's attorney, sheriff or chief of police. Section 52-8.1. The Division of Forensic Science also is required by law to provide forensic laboratory services to prosecutors and police upon request in any criminal matter. Section 2.1-434.1. When these agencies are involved with the investigation and presentation of particular criminal cases, in my opinion, they clearly act as part of the prosecution.

The materials discoverable by the accused in a felony case under Rule 3A: 11(b)(1) include forensic services that these agencies perform for the prosecution. That rule clearly contemplates, therefore, that information held by either agency is subject to disclosure in the circuit court, because it is within the possession, custody or control of the Commonwealth. While Rule 3A: 11 does not, by its own terms, apply to district court proceedings, it supports the conclusion that the State Police and the Division of Forensic Science may be considered as part of the prosecution in district court cases as well.

Courts recognize the role of an investigative agency as an "arm of the prosecutor" by imputing the agency's knowledge of facts to the prosecutor for purposes of discovery requirements. See, e.g., United States v. Jackson, 780 F.2d 1305, 1308 n.2 (7th Cir. 1986); Wedra v. Thomas, 671 F.2d 713, 717 n.1 (2d Cir.), cert. denied, 458 U.S. 1109 (1982) (prosecutor has constructive knowledge of information in hands of police); cf. United States v. Walker, 720 F.2d 1527, 1535 (11th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (knowledge of state official not imputed to federal prosecutor). If the material sought is of such a character that the prosecutor is charged with constructive knowledge of the information, the agency or individual possessing that material stands in the position of a party to the prosecution. That determination cannot be made simply by reference to whether the prosecutor and agency serve the same governmental entity.

Based on the above, it is my opinion that a district court must consider the circumstances presented in each case to determine whether an agency is characterized properly as a party to a pending criminal prosecution for discovery purposes. A state agency is not a party solely because the prosecution is brought in the name of the Commonwealth, nor is a local agency excluded automatically as a party because the case is prosecuted by the Commonwealth. The converse is also true: a local agency is not necessarily a party, and a state agency also may be a party to a purely local prosecution. If an agency, state or local, possessing the records or other items sought by the defense, participates in the investigation or presentation of a prosecution, that involvement makes the agency part of that prosecution. If it is a party, the agency is obligated to disclose relevant evidence through the prosecuting attorney under the discovery rules, and is not subject to a subpoena duces tecum as a nonparty.

III. Subpoena May Issue to Custodian of Records Not Party to Case, Notwithstanding Exclusion from Disclosure Under Virginia Freedom of Information Act

The Virginia Freedom of Information Act (the "Act"), §§2.1-340 through 2.1-346.1, does not limit courts' subpoena powers. The Act provides a means of citizen access to records in the custody of public officials, but exempts certain categories of records from mandatory disclosure. See §2.1-342. While the Act authorizes custodians of records in those exempt categories to refuse citizen requests for disclosure, it does not prohibit the disclosure of any record. Section 2.1-342(B). Nothing in the Act places any records beyond the reach of a court's subpoena.2 In my opinion, therefore, an otherwise appropriate subpoena duces tecum should not be refused solely because the records subpoenaed would be exempt from mandatory disclosure under the Act.


1. Part 3A of the Rules of the Virginia Supreme Court generally applies only to criminal proceedings in circuit courts and juvenile and domestic relations district courts. Va. Sup. Ct. R. 3A: 1. Section 16.1-131 extends Rule 3A: 12 to the issuance of subpoenas duces tecum in criminal cases in general district courts.

2. Of course, the public policy implied by an exception to the Act's disclosure provisions may be considered by a court reviewing a request for, or motion to quash, a subpoena duces tecum.