Does a Virginia prosecutor have to disclose the identity of trial witnesses or confidential informants to the defense before trial?

Plain-English summary

Holly Smith, Commonwealth's Attorney for Gloucester County, ran an "open file" discovery practice: she disclosed information about whether informants had been paid, what consideration they might get on pending charges, and their criminal histories. She did not, however, routinely disclose informant names, addresses, or phone numbers. She asked the AG whether she had to.

The AG: not generally, but with two carefully drawn exceptions for Brady material and active-participant informants.

The general rule: no general right to criminal discovery. The U.S. Supreme Court in Weatherford v. Bursey (1977) held there is no general right to discovery in a criminal case. The Virginia Supreme Court has applied the same principle (Watkins, Lowe). Whatever discovery rights exist in Virginia criminal procedure come from the Rules of the Supreme Court of Virginia or constitutional due process.

The Virginia rules don't require witness disclosure. Rule 3A:11 (criminal proceedings in circuit court and J&DR district court) sets out a limited list of items the Commonwealth must permit inspection of upon defense motion: statements of the defendant, results of physical and mental examinations, and certain other categories. The rule expressly excludes "statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth." Witness names, addresses, and phone numbers are not on the list. By the canon of expressio unius est exclusio alterius, omitted items are not within the rule's scope. Rule 7C:5 (general district court) similarly does not require witness information disclosure. Both Lowe and Watkins confirm: "Our rule providing for discovery in a criminal case contains no provision requiring the Commonwealth to furnish the names and addresses of the eyewitnesses to a crime."

The Brady exception. The Due Process Clause requires the Commonwealth to provide a defendant with evidence that is both (a) favorable, either exculpatory or impeaching, and (b) material to guilt or punishment. Brady v. Maryland (1963); Bagley (1985). If a witness has such information, the Commonwealth must disclose the identity of that witness. The point is not the witness's identity per se but the favorable, material information they hold; disclosure of identity is necessary for the defense to access that information.

The Keener exception for confidential informants. Commonwealth v. Keener (Va. Ct. App. 1989), the foundational Virginia decision, divides informants into two classes:

• Mere tipsters: people who only provide information to police. The informer's privilege protects their identity.
• Active participants: people who are present and witness material events, often actively helping set up the criminal occurrence (arranging a drug buy, introducing the defendant to undercover officers). Their identity must be disclosed.

The Keener informant had arranged the meeting and the drug transaction, making her an active participant. Even though she testified at trial, late disclosure of her identity prejudiced the defendant. The Court reversed.

The active-participant rule traces to Roviaro v. United States (1957) and Fourth Circuit cases (Price, McLawhorn) and exists because an active-participant informant could be a witness to entrapment, could establish mitigation in sentencing, or could provide other Brady-style information that the defense cannot get from anyone else.

Timing matters. "Disclosure of exculpatory evidence must be made before trial to afford the defendant a reasonable time to investigate and prepare for trial." Gilchrist v. Commonwealth (1984). Disclosing on the eve of trial, or at trial, can itself be a Brady violation if the late timing prejudices the defense.

The duty rests on the prosecutor. The Virginia Court of Appeals has noted (in Cherricks) that the duty to determine in the first instance whether evidence is exculpatory rests with the individual prosecutor. The Berger v. United States (1935) admonition is the operative ethic: the prosecutor's interest "is not that it shall win a case, but that justice shall be done."

Practical footnote on contact information. The AG noted that, "conceivably, there could be a case in which knowledge of the witness' phone number and address is material and beneficial to a defendant, such as to show contact between parties (or the absence thereof) in phone records. In such a case, the Commonwealth also should provide this information to the defendant."

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In 2018-2020 Virginia adopted significant amendments to the criminal discovery framework, expanding pretrial discovery obligations considerably under amended Rule 3A:11. Anyone working with criminal discovery in Virginia today should consult the current Rules and current case law; the 2013 baseline this opinion described has been substantially broadened.

Common questions

What does Brady require in practice?
Brady is a constitutional minimum. The prosecutor must turn over evidence favorable to the defense that is material to guilt or punishment. Materiality is judged by whether the evidence could reasonably have affected the outcome. Brady covers exculpatory evidence (suggesting the defendant didn't do it) and impeachment evidence (suggesting a key prosecution witness is unreliable).

What is the informer's privilege?
A common-law privilege that protects the identity of people who provide information to law enforcement, intended to encourage cooperation. It is not absolute: it yields to Brady (when the informant's information is favorable and material) and to the active-participant rule.

Why are active participants different from tipsters?
An active participant has firsthand knowledge of the events that constitute the crime. They are essentially a witness, often the key witness. Withholding their identity prevents the defense from cross-examining them, raising entrapment, or developing exculpatory testimony.

Does the defense get the informant's identity even if the informant won't testify?
Yes, if the informant is an active participant or has Brady material. Whether the informant testifies at trial is separate from whether the defense gets the identity in pretrial discovery.

What about the witness's address and phone number?
Generally not required. But the AG noted exceptions: if the address or phone number itself is material evidence (e.g., needed to verify contact records), it should be disclosed.

What if the prosecutor doesn't realize a witness has Brady information?
The duty is on the prosecutor to make the call. Cherricks puts the determination on the individual prosecutor. Failure to disclose can lead to reversal, sanctions, or bar discipline.

Does this opinion apply to grand jury proceedings?
No. Grand jury practice is governed by separate rules. The Commonwealth's witness disclosure obligations there are different.

What happens if the Commonwealth violates these rules?
Remedies include suppression of evidence, mistrial, retrial, reversal on appeal, dismissal of charges, or sanctions against the prosecutor. The severity depends on the prejudice and the prosecutor's conduct.

Has Virginia changed these rules since 2013?
Yes, substantially. Virginia adopted significant discovery reforms in 2018-2020 that expanded disclosure obligations. The Brady and Keener floors remain in place; the rules now require additional pretrial disclosures.

Background and statutory framework

• Va. Sup. Ct. R. 3A:11: limited discovery in circuit court and J&DR district court criminal cases (as of 2013).
• Va. Sup. Ct. R. 7C:5: limited discovery in general district court criminal and traffic cases.
• Brady v. Maryland: constitutional due process baseline.
• Commonwealth v. Keener: Virginia framework distinguishing active participants from mere tipsters.
• Informer's privilege: common-law protection for informant identities, subject to Brady and Keener exceptions.

The interpretive moves:

• Rules are the floor for what the Commonwealth must disclose; constitutional due process can require more.
• Expressio unius applied to Rule 3A:11: omitted items are not within the rule's scope.
• The Brady and Keener exceptions are independent and additive.

Citations

• Brady v. Maryland, 373 U.S. 83 (1963)
• United States v. Bagley, 473 U.S. 667 (1985)
• Berger v. United States, 295 U.S. 78 (1935)
• Roviaro v. United States, 353 U.S. 53 (1957)
• Weatherford v. Bursey, 429 U.S. 545 (1977)
• United States v. Price, 783 F.2d 1132 (4th Cir. 1986)
• McLawhorn v. North Carolina, 484 F.2d 1 (4th Cir. 1973)
• Commonwealth v. Keener, 8 Va. App. 208, 380 S.E.2d 21 (1989)
• Hatcher v. Commonwealth, 17 Va. App. 614, 440 S.E.2d 416 (1994)
• Daniel v. Commonwealth, 15 Va. App. 736, 427 S.E.2d 423 (1993)
• Cherricks v. Commonwealth, 11 Va. App. 96, 396 S.E.2d 397 (1990)
• Lawson v. Commonwealth, 35 Va. App. 610, 547 S.E.2d 513 (2001)
• Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985)
• Lowe v. Commonwealth, 218 Va. 670, 239 S.E.2d 112 (1977)
• Gray v. Commonwealth, 233 Va. 313, 356 S.E.2d 157 (1987)
• Gilchrist v. Commonwealth, 227 Va. 540, 317 S.E.2d 784 (1984)
• GEICO v. Hall, 260 Va. 349, 533 S.E.2d 615 (2000)
• Va. Sup. Ct. R. 3A:11
• Va. Sup. Ct. R. 7C:5
• 1993 Op. Va. Att'y Gen. 128

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-094_Smith.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

December 13, 2013

The Honorable Holly B. Smith
Commonwealth's Attorney
County of Gloucester
Post Office Box 456
Gloucester, Virginia 23061

Dear Ms. Smith:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the Commonwealth must reveal the names, addresses, and phone numbers of her trial witnesses, including confidential informants in narcotics cases, as part of the Commonwealth's discovery obligation.

Response

It is my opinion that the Commonwealth is under no general obligation to disclose the names, addresses, and telephone numbers of her witnesses as part of the discovery process in a criminal case. Nevertheless, it is my further opinion that pursuant to Brady v. Maryland,[1] due process of law requires the Commonwealth to disclose the identity of those witnesses who have information that is favorable to the accused, when that evidence is material to the defendant's guilt or punishment. Finally, it is my opinion that, when a confidential informant in a narcotics case possesses exculpatory information under the Brady standard, or is an "active participant" in the criminal activity at issue at trial, the prosecution must disclose the informant's identity to the defense within a reasonable time in advance of trial.

Background

You relate that your office, in "open file" discovery, provides detailed information regarding whether an informant has been paid for his information, may receive consideration for a pending charge, and the extent of his criminal history. You further state that you do not normally provide the name, address, or telephone number of the informant as part of discovery.

Applicable Law and Discussion

There is no general right to discovery in a criminal case.[2] Nonetheless, the Commonwealth is bound by the discovery rules established by the Supreme Court of Virginia and by any constitutional due process constraints that may require the prosecution to disclose certain information to the defendant.

The Rules of the Supreme Court generally prescribe the scope of discovery, and they provide only limited discovery rights to criminal defendants.[3] Such Rules do not include a requirement for the Commonwealth to disclose witnesses' names, addresses, or phone numbers.[4] Rather, Rule 3A:11 provides only that upon the timely motion of a defendant accused of a felony in Circuit Court or any misdemeanor brought on direct indictment, the court shall order the Commonwealth to permit the inspection and copying or photographing of certain enumerated items.[5] The identities and other information of witnesses are not included among the list of discoverable material.[6] Moreover, this Rule, by its express terms, "does not authorize the discovery or inspection of statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth," or otherwise command the disclosure of witness information.[7]

Correspondingly, Rule 7C:5, which applies to all criminal and traffic cases in the General District Court, provides that upon the timely motion of a defendant accused of a misdemeanor punishable by confinement or in advance of a preliminary hearing for a felony, the court shall order the Commonwealth to permit the inspection and copying or photographing of certain express items.[8] This Rule does not require the disclosure of witness information. Accordingly, I conclude that the discovery rules do not require the Commonwealth to disclose witness information.

The Due Process Clause similarly does not place a general or express duty on the Commonwealth to disclose her witnesses' names or other information before trial.[9] Nevertheless, as ruled by the United States Supreme Court in Brady v. Maryland,[10] due process does require the Commonwealth to provide a defendant with evidence that is both favorable (either because it is exculpatory or impeaching) and material to the defendant's guilt or punishment.[11] The Court of Appeals of Virginia addressed the application of the Due Process Clause to the disclosure of the identities of confidential informants in a narcotics case in its foundational decision in Commonwealth v. Keener.[12] The Court specifically considered whether the defendant's conviction should be reversed based on the Commonwealth's failure to disclose the identity of a confidential informant, an alleged Brady violation.[13]

The Keener Court differentiated between two classes of informants: "active participants" (individuals who are present and witness material events) and "mere tipsters" (those who solely provide information to the police).[14] Because the informant in Keener had arranged both a meeting and the drug transaction between the defendant and the undercover officer, she was an "active participant" in the drug distribution that gave rise to the defendant's criminal charges.[15] The Court therefore found that the informant's testimony may have established a defense of entrapment or provided a mitigating factor for the jury to consider in sentencing the defendant.[16] Even though the informant testified during trial, the Court ruled that late disclosure of her identity prejudiced the defendant.[17] Thus, the Court determined that the Commonwealth had violated the defendant's due process rights by failing to disclose the identity of the police informant before trial.[18] The Court stated that "disclosure of the informant's identity is required where the informer is an actual participant, particularly where he helps set up the criminal occurrence."[19] Moreover, disclosure of exculpatory evidence must be made before trial to "afford [the defendant] a reasonable time to investigate and prepare [for] trial."[20]

Therefore, based upon these constitutional due process principles, I conclude that the Commonwealth has an obligation to disclose the identity of those individuals with exculpatory information,[21] including any witnesses who are "active participant" informants.[22] This conclusion represents an exception to the general rule that "'the identity of a person furnishing the prosecution with information concerning criminal activities is privileged,'"[23] and thus not discoverable under the provisions of Rule 3A:11.

Conclusion

Accordingly, it is my opinion that the Commonwealth is under no general obligation to disclose the names, addresses, and telephone numbers of her witnesses as part of the discovery process in a criminal case. Nevertheless, it is my further opinion that pursuant to Brady v. Maryland, due process of law requires the Commonwealth to disclose the identity of those witnesses who have information that is favorable to the accused, when that evidence is material to the defendant's guilt or punishment. Finally, it is my opinion that, when a confidential informant in a narcotics case possesses exculpatory information under the Brady standard, or is an "active participant" in the criminal activity at issue at trial, the prosecution must disclose the informant's identity to the defense within a reasonable time in advance of trial.[24]

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] 373 U.S. 83 (1963).

[2] Weatherford v. Bursey, 429 U.S. 545, 559 (1977); Watkins v. Commonwealth, 229 Va. 469, 479, 331 S.E.2d 422, 430 (1985) (citing Weatherford, 429 U.S. at 559); Lowe v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977) (citing Weatherford, 429 U.S. at 559); see also 1993 Op. Va. Att'y Gen. 128, 129 (citing Lowe, 218 Va. at 679, 239 S.E.2d at 118).

[3] Part Four of the Rules of the Supreme Court governs pretrial procedures, depositions, and production at trial, Va. Sup. Ct. Rs. 4:0 through 4:15, but is expressly limited to civil actions. See Va. Sup. Ct. R. 4:0. Part Three A of the Rules, Va. Sup. Ct. Rs. 3A:1 through 3A:25, which contains provisions applicable to criminal proceedings, includes only one rule that is related to discovery. See Va. Sup. Ct. R. 3A:11. That rule, by its terms, applies only to criminal proceedings "in circuit courts and juvenile and domestic relations district courts (except proceedings concerning a child in a juvenile and domestic relations district court)." Id. at Subpart (a).

[4] Lowe, 218 Va. at 679, 239 S.E.2d at 118 ("Our rule providing for discovery in a criminal case contains no provision requiring the Commonwealth to furnish the names and addresses of the eyewitnesses to a crime."); Watkins, 229 Va. at 479, 331 S.E.2d at 430-31 (citing Weatherford, 429 U.S. at 559; Lowe, 218 Va. at 679, 239 S.E.2d at 118) (finding that the trial court properly denied the defendant's discovery motion seeking the names and addresses of all potential witnesses for the Commonwealth).

[5] Va. Sup. Ct. R. 3A:11(a), (b). The Commonwealth generally is required to provide discovery pursuant to the Rules "only where the defendant requests such evidence, and the trial court orders the discovery of the requested evidence." Lawson v. Commonwealth, 35 Va. App. 610, 622, 547 S.E.2d 513, 519 (2001) (emphasis in original).

[6] Applicable here is the maxim of statutory construction "expressio unius est exclusio alterius," which "'provides that mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute.'" GEICO v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617 (2000) (quoting Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)).

[7] Va. Sup. Ct. R. 3A:11(b)(2).

[8] Va. Sup. Ct. R. 7C:1, 7C:5(a), (c).

[9] Watkins, 229 Va. at 479, 331 S.E.2d at 430-31 (citing Weatherford, 429 U.S. at 559; Lowe, 218 Va. at 679, 239 S.E.2d at 118).

[10] 373 U.S. 83, 87 (1963).

[11] Id. at 87; Lowe, 218 Va. at 679, 239 S.E.2d at 118; United States v. Bagley, 473 U.S. 667, 676 (1985); see also Berger v. United States, 295 U.S. 78, 88 (1935) ("The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.").

[12] 8 Va. App. 208, 380 S.E.2d 21 (1989). See also Hatcher v. Commonwealth, 17 Va. App. 614, 616-17, 440 S.E.2d 416, 418-19 (1994).

[13] Keener, 8 Va. App. at 210, 380 S.E.2d at 22. The defendant in Keener did not specifically request disclosure of the informant's identity, see Roviaro v. United States, 353 U.S. 53, 60-61 (1957), but instead made a general request for discovery and exculpatory evidence pursuant to Brady, which the trial court granted. Keener, 8 Va. App. at 210, 215, 380 S.E.2d at 22, 25.

[14] Keener, 8 Va. App. at 212-13, 380 S.E.2d at 24.

[15] Id. at 213, 380 S.E.2d at 24.

[16] Id. at 213, 216, 380 S.E.2d at 24 (citing Roviaro, 353 U.S. at 64), 26.

[17] Id., at 216, 380 S.E.2d at 26.

[18] Id. In your letter, you note that the confidential informants will testify at trial, and thus, the defendant will be aware of the informant's identity and have the opportunity to cross-examine this witness.

[19] Id. at 213, 380 S.E.2d at 24 (quoting United States v. Price, 783 F.2d 1132, 1138 (4th Cir. 1986), quoting McLawhorn v. North Carolina, 484 F.2d 1, 5 (4th Cir. 1973)) (internal citations omitted).

[20] Gilchrist v. Commonwealth, 227 Va. 540, 546-47, 317 S.E.2d 784, 787 (1984).

[21] Keener, 8 Va. App. at 216, 380 S.E.2d at 26. Conceivably, there could be a case in which knowledge of the witness' phone number and address is material and beneficial to a defendant, such as to show contact between parties (or the absence thereof) in phone records. In such a case, the Commonwealth also should provide this information to the defendant. The duty to determine in the first instance whether evidence is exculpatory rests with the individual prosecutor. Cherricks v. Commonwealth, 11 Va. App. 96, 101, 396 S.E.2d 397, 400 (1990); see also 1993 Op. Va. Att'y Gen. at 130.

[22] Nonetheless, to what extent witness information must be disclosed in a particular case is beyond the scope of this Opinion.

[23] Hatcher v. Commonwealth, 17 Va. App. at 616, 440 S.E.2d at 418, (quoting Daniel v. Commonwealth, 15 Va. App. 736, 739, 427 S.E.2d 423, 425 (1993), and citing Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d 157, 165, cert. denied, 484 U.S. 873 (1987)).

[24] See 1993 Op. Va. Att'y Gen. at 130-31.