Winston v. Commonwealth
In Winston v. Commonwealth, 188 Va. 386, 49 S.E.2d 611 (1948), the Supreme Court discussed this issue in addressing Article I, Section 8 of the Virginia Constitution, which provides the same due process guarantee found in the United States Constitution.
Article I, Section 8 of the Virginia Constitution states "that in criminal prosecutions a man hath a right . . . to call for evidence in his favor, . . . . He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, . . . ."
Following his arrest for driving while intoxicated, Winston asked to be taken to a physician for a test to determine whether he was intoxicated.
The arresting officer refused.
On appeal of his conviction, Winston contended that the officer's refusal to take him to a physician deprived him of potentially exculpatory evidence. Id. at 388-89, 49 S.E.2d at 612-13.
Rejecting Winston's claim, the Supreme Court said, "there was no denial of the right of the accused to produce evidence in his favor." Id. at 391, 49 S.E.2d at 613.
The trooper had not refused to allow Winston to contact a physician to arrange for an examination, nor had he denied Winston the opportunity to be examined in jail.
The Court concluded that "in this situation the duty of engaging the services of a physician to make such an examination, and of thus securing his testimony to establish the defendant's sobriety, was on the defendant and not on the officers." Id. at 392, 49 S.E.2d at 614.
Due process imposes no affirmative duty upon the police to help defendants obtain evidence that is potentially exculpatory.
Winston's conviction was reversed for denial of other fundamental rights.
The arresting officer failed to take him promptly before a judicial officer.
He was initially denied the opportunity for bail, resulting in his inability to obtain material evidence.