In Henshaw v. Virginia, 19 Va. App. 338, 451 S.E.2d 415 (Va. Ct. App. 1994), the criminal defendant was convicted of voluntary manslaughter by the trial court. Henshaw at 416.
The defendant, prior to trial, filed motions for discovery seeking to inspect, photograph, and take measurements of the crime scene that was not under the State's control. Id.
The trial court denied the defendant's motions. Id.
The appellate court found that criminal defendants do have a right to view, photograph, and take measurements at the crime scene under the control of a third party. Id. at 419.
The court stated:
If an accused establishes that inspecting, photographing, or measuring the crime scene is relevant and material, he is entitled to access, subject to such reasonable limitations and restrictions as the trial judge may impose, unless due to special circumstances the private citizen's constitutional right to privacy outweighs the accused's right to view or inspect the premises. Upon a prima facie showing of relevance, the trial judge shall order access for observation and inspection, subject to such reasonable restrictions and limitations as the court determines necessary in its sound judicial discretion. Id. at 420.
The appellate court deemed the trial court's error to be harmless because the defendant was satisfactorily able to present his evidence through the State's diagram and photographs of the room, and the testimony of witnesses. Id.