Relates to discovery

Summary of provisions

Section 1 of the bill amends 240.40 of the criminal procedure law to allow a court to order disclosure by the prosecution of relevant property that is shown to be material to preparation of the defense, whether or not the prosecution intends to introduce the property at trial.

Section 2 is the effective date.

Justification

The ever-present reality of the criminal justice process is that most of the information necessary to fair adjudication is in the hands of the State. One purpose of the discovery law is to disclose to the accused before trial inculpatory evidence making up the State's case, in order to prevent unfair surprise. An equally critical component of the discovery process is to provide the accused with material in the hands of the State, with its superior investigatory resources, that may aid in the preparation of a defense. this duty to disclose what is loosely referred to as "exculpatory" evidence had been a constitutional requirement since Brady v. Maryland, 373 U.S. 83 (1963).

More accurately, the Brady rule encompasses all material "favorable" to the accused. See People v. Fuentes, 12 MY3d 259, 263 (2009). "Favorable" is a broad category, including any evidence "inconsistent with a fundamental aspect of the People's case." People v. Garcia, 46 A23d 461, 262 (1st Dept. 2007).

The basic flaw in the Brady disclosure process is that it places the duty to search, for evidentiary material favorable to the defense in the hands of its adversary. Some prosecutors may take an unduly narrow view of the Brady obligation, one that does not encompass impeachment material or recognizes only obvious exculpatory evidence. And even the conscientious prosecutor may not understand how an item might fit within a defense theory, or lead to evidence favorable to the defense.

The amendment to CPL 5240.40(1) (c) would strengthen the effectuation of the Brady rule. The current version, with the "which the people intend to introduce at trial" restriction, serves only the discovery function of preventing surprise. It does little to aid the preparation of the defense function. The part of the information in the prosecution's possession that it selects to introduce at trial will likely not be favorable to the defense. On the other hand, the material that it chooses not to present to the trier of fact is the category where information favorable to the defense is more likely to

be found. For example, the prosecution may feel that an "inconclusive" scientific test proves nothing, but the' defense may interpret it as supporting a reasonable doubt.

By excising the "intend to introduce at the trial" limitation, the discovery law will effectuate access for the defense to potentially favorable matter in a manner not dependent on what may be the adversary's narrow, skeptical, or uninformed assessment of its significance. As the Court of Appeals has emphasized: "We have often repeated that the best judge of the value of evidence to a defendant's case is 'the single-minded devotion of counsel for- the accused.'" People v. DaGata, 96 NY2d 40, 45 (1995). DaGata ruled that, "consistent with this State's philosophy of broad pretrial disclosure," notes related to DNA testing should have been turned over;, in the hands of the defense, they might have led to information favorable to its case. Id.

The DaGata court recognized that the prosecution could obtain a protective order under CPL § 240.50 against inappropriate disclosure. Id. At 44. More important, the amendment to CPL 9240.40(1)(c) keeps control of this area of discovery in the hands of the court, and requires a showing of materiality and reasonableness. The court is well-situated to make any reasonable accommodations to the prosecution where problems of privilege or witness intimidation are shown to exist.

The benefits of more thorough and timely disclosure of material potentially favorable to defense of a case far outweigh any problems in ironing out the details of this discovery. The steady cascade of reversals and wrongful convictions owing to withheld Brady material is a sign nor only of insufficient compliance but of the inefficiency of an entirely "backward-looking" enforcement process, which offers a cure for non-disclosure only when egregious errors are revealed in post-conviction review. Giving the court the authority to order more targeted disclosure in the pre-trial setting can only enhance the fairness and reliability of the administration of justice.

Legislative history

A9080 of 2011-12, 2013 Session Now bill in Senate

Fiscal implications

None.

Effective date

This shall take effect immediately.