Require Prosecutors Share Evidence

Section 1. Subdivision 9 of section 65.20 of the criminal procedure law, as added by chapter 505 of the laws of 1985 and renumbered by chapter 548 of the laws of 2007, is amended to read as follows:

9. (a) Prior to the commencement of the hearing conducted pursuant to subdivision five of this section, the district attorney shall, subject to a protective order, comply with the provisions of subdivision [one] two of section [240.45] 240.20 of this chapter as they concern any witness whom the district attorney intends to call at the hearing and the child witness.

(b) Before a defendant calls a witness at such hearing, he or she must, subject to a protective order, comply with the provisions of subdivision two of section [240.45] 240.30 of this chapter as they concern all the witnesses the defendant intends to call at such hearing.

§ 2. Subdivision 1 of section 240.10 of the criminal procedure law is REPEALED and subdivisions 2, 3 and 4 are renumbered subdivisions 1, 2 and 3.

§ 3. The criminal procedure law is amended by adding a new section 240.15 to read as follows: § 240.15 Discovery by defendant of arrest and complaint reports.

Upon arraignment, the prosecutor shall, subject to a protective order pursuant to section 240.50 of this article, provide the defendant with a copy of any law enforcement report describing the arrest and processing of the defendant and any official law enforcement report by which a crime is reported to the police.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03821-01-7

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§ 4. The section heading and the opening paragraph of subdivision 1 of section 240.20 of the criminal procedure law, the section heading as added by chapter 412 of the laws of 1979 and the opening paragraph of subdivision 1 as amended by chapter 317 of the laws of 1983, are amended to read as follows:

Discovery[; upon demand of] to the defendant.

Except to the extent protected by court order, [upon a demand to produce by a defendant against whom] within fifteen days after arraignment on an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor [is pending], the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing, the following property:

§ 5. Paragraph (h) of subdivision 1 of section 240.20 of the criminal procedure law, as added by chapter 412 of the laws of 1979 and as relettered by chapter 795 of the laws of 1984, is amended to read as follows:

(h) [Anything] Any other property or information required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.

§ 6. Subdivision 1 of section 240.20 of the criminal procedure law is amended by adding four new paragraphs (l), (m), (n) and (o) to read as follows:

(l) A scientific report or tests which tend to negate the guilt of the defendant.

(m) Information about a line-up, show-up or other identification procedure or from a witness which indicates that someone other than the defendant committed the crime.

(n) Information about a line-up, show-up or other identification procedure at which an eyewitness failed to identify the defendant as the perpetrator of the crime.

(o) Reports or interviews of any kind indicating that a person or persons other than the defendant committed the crime.

§ 7. Subdivision 2 of section 240.20 of the criminal procedure law is renumbered subdivision 4 and three new subdivisions 2, 3 and 5 are added to read as follows:

2. Within fifteen days of arraignment, the prosecutor shall, subject to a protective order, make available to the defendant:

(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony.

(b) A record of judgment of conviction of a witness the people intend to call at trial if the record of conviction is known by the prosecutor to exist.

(c) The existence of any pending criminal action against a witness the people intend to call at trial, if the pending criminal action is known by the prosecutor to exist.

(d) Any promises or threats to, or agreements with, a witness the prosecution intends to call at trial, if such promise, threat or agreement is related to the witness's testimony and is known by the prosecution.

(e) The name, address and qualifications of any expert, other than an expert governed by section 250.10 of this title, the people intend to call as a witness at trial, as well as a written report by that witness setting forth in reasonable detail the subject matter on which the

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expert is expected to testify including the witness's opinion and conclusions, if any, as well as the basis for those opinions and conclusions.

The provisions of paragraphs (b) and (c) of this subdivision shall not be construed to require the prosecutor to fingerprint a witness or otherwise cause the division of criminal justice services or other law enforcement agency or court to issue a report concerning a witness.

3. If after complying with the provisions of this section, any property or information which is required to be disclosed comes into the possession of the prosecution, the prosecution shall, subject to a protective order, promptly disclose such property or information.

5. At the commencement of jury selection or in the case of a non-jury trial, before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defense any written or recorded statement made by a person whom the prosecutor intends to call at trial and which relates to the subject matter of the witness's testimony, including unredacted statements previously disclosed in redacted form.

§ 8. Subdivision 4 of section 240.20 of the criminal procedure law, as added by chapter 412 of the laws of 1979 and renumbered by section seven of this act, is amended to read as follows:

4. The prosecutor shall make a diligent, good faith effort to ascertain the existence of [demanded] any property subject to discovery and to cause such property to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided, that the prosecutor shall not be required to obtain by subpoena duces tecum [demanded] material which the defendant may thereby obtain.

§ 9. Section 240.30 of the criminal procedure law, as added by chapter 412 of the laws of 1979, subdivision 1 as amended by chapter 558 of the laws of 1982 and the opening paragraph of subdivision 1 as amended by chapter 317 of the laws of 1983, is amended to read as follows: § 240.30 Discovery[; upon demand of] to the prosecutor.

1. Except to the extent protected by court order, upon [a demand to produce] disclosure by the prosecutor pursuant to section 240.20 of this article, a defendant against whom an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending shall disclose and make available for inspection, photographing, copying or testing, subject to constitutional limitations:

(a) any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test, experiment, or comparisons, made by or at the request or direction of, the defendant, if the defendant intends to introduce such report or document at trial, or if the defendant has filed a notice of intent to proffer psychiatric evidence and such report or document relates thereto, or if such report or document was made by a person, other than defendant, whom defendant intends to call as a witness at trial; and

(b) any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial.

2. At the commencement of jury selection, the defendant shall, subject to a protective order, make available to the prosecutor: (a) any written or recorded statement made by a person other than the defendant whom the defendant intends to call as a witness at the trial, and which relates to the subject matter of the witness's testimony, including unredacted statements previously disclosed in a redacted form;

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(b) a record of judgment of conviction of a witness, other than the defendant, the defendant intends to call at trial if the record of conviction is known by the defendant to exist;

(c) the existence of any pending criminal action against a witness, other than the defendant, the defendant intends to call at trial, if the pending criminal action is known by the defendant to exist;

(d) any promises or threats to, or agreements with, a witness the defense intends to call at trial, if such promise, threat or agreement is related to the witness's testimony and is known by the calling party; and

(e) the name, address, and qualifications of any expert, other than an expert governed by section 250.10 of this title, the defense intends to call as a witness at trial, as well as a written report by that witness setting forth in reasonable detail the subject matter on which the expert is expected to testify including the witness's opinion and conclusions, if any, as well as the basis for those opinions and conclusions.

3. The defense shall make a diligent good faith effort to make such property available for discovery where it exists but the property is not within its possession, custody or control, provided, that the defendant shall not be required to obtain by subpoena duces tecum [demanded] material that the prosecutor may thereby obtain.

§ 10. Section 240.35 of the criminal procedure law, as added by chapter 412 of the laws of 1979, is amended to read as follows: § 240.35 Discovery; refusal [of demand] to disclose.

Notwithstanding the provisions of sections 240.20 and 240.30 of this article, the prosecutor or the defendant, as the case may be, may refuse to disclose any information for which [he] that party reasonably believes [is not discoverable by a demand to produce, pursuant to section 240.20 or section 240.30 as the case may be, or for which he reasonably believes] a protective order would be warranted. Such refusal shall be made in a writing, which shall set forth the grounds of such belief as fully as possible, consistent with the objective of the refusal. The writing shall be served upon the [demanding] other party and a copy shall be filed with the court.

§ 11. Section 240.40 of the criminal procedure law, as added by chapter 412 of the laws of 1979, subdivision 1 as amended by chapter 19 of the laws of 2012, the opening paragraph of subdivision 2 as amended by chapter 317 of the laws of 1983 and the closing paragraph of subdivision 2 as amended by chapter 481 of the laws of 1983, is amended to read as follows: § 240.40 Discovery; upon court order.

1. Upon motion of a defendant against whom an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending, the court in which such accusatory instrument is pending:

(a) must order discovery as to any material not disclosed [upon a demand] pursuant to section 240.20 of this article, if it finds that [the prosecutor's refusal to disclose such material is not justified] a protective order should not be issued; (b) must, unless it is satisfied that the people have shown good cause why such an order should [not] be issued, order discovery or issue any other order authorized by subdivision one of section 240.70 of this article as to any material not disclosed [upon demand] pursuant to section 240.20 of this article where the prosecutor has failed to serve a timely written refusal pursuant to section 240.35 of this article; (c) [may] must order discovery with

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