What's happening
This bill allows criminal defendants to request discovery of any property material to their defense, not just evidence the prosecution intends to use at trial.
Why it matters
Strengthens defense rights. By allowing defendants to request discovery of any property that is material to their defense (not just what the prosecution plans to use), this change helps ensure fairer access to potentially exculpatory or relevant evidence, improving the ability to mount an effective defense.
Shifts discovery balance. The bill reduces the prosecution’s control over what evidence must be shared, making it harder for potentially helpful evidence to be withheld simply because the prosecution does not intend to introduce it at trial.
May reduce wrongful convictions. Broader discovery can uncover evidence that points to innocence or mitigates guilt, which could help prevent wrongful convictions and bolster overall confidence in the justice system.
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Who cares
Headline styles
Make Discovery Rules Fairer
Plain English, a few words. Used as the page title.
Sponsors
1 Co-sponsor
History
- Referred to codes
- Print number 6847a
- Amend (t) and recommit to rules
- Referred to rules
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Broaden Criminal Case Discovery
Assembly Floor Calendar · Sponsor Joseph Lentol
Full text
1 pageUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
6847--A
2017-2018 Regular Sessions
IN SENATE
August 9, 2017
Introduced by Sen. HOYLMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the criminal procedure law, in relation to discovery
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Paragraph (c) of subdivision 1 of section 240.40 of the criminal procedure law, as amended by chapter 19 of the laws of 2012, is amended to read as follows:
(c) may order discovery with respect to any other property[, which the people intend to introduce at the trial,] upon a showing by the defendant that discovery with respect to such property is material to the preparation of his or her defense, and that the request is reasonable; and
§ 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03867-04-7
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the criminal procedure law, in relation to discovery
Purpose
To strengthen the ability of 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. Removing the latter restriction will effectuate the transmission of information potentially favorable to the defense, a constitutional duty often frustrated by inconsistent interpretations of the obligation, non-compliance, or belated disclosure.
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.
Read the full memo (839 words)
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 exculpatory 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 AD3d 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 § 240.40(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, 86 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 CPL240.40(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 not 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
A.8080 of 2011-12(Lentol) A.3801 of 2013-14(Lentol) A.2878 of 2015-16(Lentol) A.3056 of 2017-18(Lentol)
Fiscal implications
None.
Effective date
This act shall take effect immediately.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.