CRIMINAL ISSUES – CHILD SEX ABUSE – DSS WITHHOLDING OF EXCULPATORY STATEMENTS – PROSECUTOR’S BRADY RESPONSIBILITY – EXPERT TESTIMONY. A criminal case from Dinwiddie County, Tuma v. Commonwealth, 60 Va. App. 273, 726 S.E.2d 365 (6/12/12), holds some valuable information for the family lawyers who, sometimes unavoidably, get into these kinds of litigation. Even for those who don’t, it contains some welcome recognition of constitutional limitations on the power of social service agencies to conduct interviews and then deny access to the tapes of them, and an explicit declaration about the inability of prosecutors to avoid their civic and professional duties to safeguard and respect defendants’ constitutional rights. When a man was arrested for interfering with his 5-year-old stepdaughter, the child was interviewed by the county social worker and a Sheriff’s Department investigator, and the 30-40 minute interview was taped. At trial, it came out that the social worker still had the tape in her possession and the defense counsel, as a matter of discovery, asked to have it played. Investigators, of course, were ready to testify to the hearsay statements of the child. That was denied, and after the investigators and the “counselor qualified as an expert on adolescent trauma” testified, counsel moved to strike on the ground that the audiotape was the best evidence and that it had never come out. When the judge asked the Commonwealth’s Attorney whether he knew if the tape was exculpatory or not, the answer was no, because the social service agency had stood on their privilege to deny him access to it. When the judge asked the prosecutor if he was willing to “stand on” his statement about what was not on the tape he had not heard, he said yes. The judge said that if the prosecutor did not know, he would be violating the Brady rule. But after the judge asked the Commonwealth’s Attorney again whether he knew what was on the tape and the answer was no, the judge still denied access, held that the proof was adequate, and let the case go to the jury. The Supreme Court, citing such authorities as English case law from 1243 as to the public role and responsibility of public prosecutors, and The Public Records of the Colony Of Connecticut from August 1689 to May 1706, did not find the ruling of the judge valid, nor the performance of the local authorities in Dinwiddie County adequate to satisfy constitutional standards. In a lengthy opinion with many citations, the majority held that it is the prosecutor, and not the county DSS, that must decide whether evidence in their possession is exculpatory and constitutionally required to be made available to the defense under Brady v. Maryland, 373 U.S. 83 (1963), and that no prosecutor can dodge this responsibility on the alleged grounds that it is privileged “as a product of a social services investigation.” It specifies that the Commonwealth’s Attorney had a duty to listen personally to the audio recording of this victim interview to determine for himself whether it contained exculpatory material, and he could not simply rely on the investigator’s notes about the recording to stand up and represent to the trial court that it contained nothing exculpatory as grounds for refusal to disclose it to the defense. The Court went on to hold that the jury is not required to accept the testimony of a qualified expert witness as to the meaning and adequacy of a victim’s statements, non-statements and silent physical actions — which in this case were not wanting to talk about the incident, pacing in the expert’s office, avoiding eye contact, avoiding the subject, and leaving the expert’s office — as proof. There were dissents by Judge Kelsey and an even longer one by Judge Beales. These were lengthy and scholarly dissents, though space considerations preclude summary of them here.