Relates to rules of evidence at grand jury hearings

Summary of specific provisions

Section 1 amends subdivision 2-a and subparagraph (ii) of paragraph (a) of subdivision 8 of section 190.30 of the criminal procedure law, subdivision 2a as amended by chapter 453 of the laws of 1999, and subparagraph (ii) of paragraph (a) of subdivision 8 as added by chapter 279 of the laws of 2008, to

Section 2 amends paragraph (g) of subdivision 3 of section 190.30 of the criminal procedure law, as added by chapter 690 of the laws of 2005, and adds two new paragraphs (h) and (i) to

Section 3 establishes that this act shall take effect on the ninetieth day after it shall have become a law.

Justification

Business Records: Current law allows certain business records of financial institutions, telephone companies, and internet service providers to be admissible to a grand jury when accompanied by a sworn statement attesting to the authenticity of the records. This bill would expand existing law to include business records from other types of industries, including law firms, manufacturing companies, and technology companies.

Identity Theft Victims: Existing law allows certain crime victims' testimony to be admitted to a grand jury via affidavit, specifically those whose testimony is limited to resolving the question of a legal right or status of the witness or his or her property (e.g. the owner of a stolen car, the owner of a burglarized home, or the owner of a credit card). The law does not currently include victims whose "personal identifying information" or "personal identification number" have been stolen to submit testimony by affidavit, requiring victims to testify in person before a grand jury, even if they live in other cities, states, or countries. This bill would allow identity theft victims to submit testimony via affidavit.

Electronic Data: Current law allowing the admission of certain business records via affidavit does not allow for the authentication of electronic data, such as the contents of e-mails, via affidavit. A live witness must appear before a grand jury to authenticate "recorded conversations or images communication thereby." Increasingly,

prosecutors are handling cases involving electronic data, such as e-mails, test messages, and social media posts that are housed on servers located around the world. For a live witness to authenticate such records, prosecutors often have to fly in the witness, and provide them with food and lodging, merely to authenticate that a CD-Rom or files provided to prosecutors are indeed the records produced by the company in response to the legal process. This bill would close that loophole and allow such electronic records to be submitted as testimony to a grand jury via affidavit.

The procedural reforms in this bill are consistent with recommendations made by the District Attorneys Association of the State of New York's White Collar Crime Task Force in its 2013 report. The amendments contained in this bill would save significant taxpayer dollars, eliminate time-consuming requirements on government, businesses, grand jurors, and identity theft victims, while preserving defendants' rights to contest the accuracy and authenticity of the evidence. Doing so would permit prosecutors to investigate more complex white collar and cybercrime cases, and comport New York State Law more closely with federal law and the laws of at least 26 other states.

Prior legislative history

New bill.

Fiscal implications

Savings to taxpayers for reimbursements of witnesses' travel, lodging, and food.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law.