Overhaul Criminal Discovery Rules

Sections 245.20 and 245.30 (Prosecution's Discovery In Two Stages): The prosecution's discovery occurs in two phases. Phase One includes types of materials possessed by or readily obtainable by prosecutors early in the case (e.g., electronically stored police reports; etc.). Phase Two includes materials that take longer for prosecutors to obtain (e.g., less formalized documents from police files; transcripts; etc.). The need for written demands for discovery is eliminated. Disclosures are earlier and broader than under current law.

Section 245.20 (Phase One Discovery): The prosecution automatically discloses Phase One materials to the defense within 15 days of arraignment. This includes types of information needed for the defense to file pre-trial motions; to perform investigations when witnesses and evidence are still available; and to make more informed decisions about pleas. The prosecutor automatically has an extra week to perform discovery if he or she was on vacation or otherwise engaged for one or more days during this period.

Section 245.30 (Phase Two Discovery): The prosecution automatically discloses Phase Two materials to the defense within 90 days of arraignment, and then the prosecutor files a "certificate of compliance." This includes types of information needed for evaluating potential defenses and for trial preparation.

Sections 245.20(3), (4) (Procedures for Witnesses): In addition to protective orders, the prosecutor has the option to withhold any witness's address or contact information, without having to apply for a protective order, by making the witness available to only counsel for the defendant for an interview. In cases charging a violent felony offense, the prosecutor has the additional option to withhold any witness's address or contact information, without having to apply for a protective order, by providing adequate contact information in a confidential document accessible only to defense counsel, and not to the defendant. This discovery can also be made contingent upon the defendant's personal consent to use of the attorney-only confidentiality procedure, after in-court warning against witness tampering.

Section 245.40 (Discovery From Defense): The defense automatically discloses its reciprocal discovery to the prosecution within 30 days after the prosecution's certification that its discovery is complete, and then the defense lawyer files a "certificate of compliance." Reciprocal discovery from the defense is earlier and broader than under current law.

Section 245.85 (Remedies for Violations): If an item is disclosed late, a remedy at trial is provided if the party entitled to disclosure can demonstrate significant prejudice. If an item is lost or destroyed, the court imposes a remedy at trial that is proportionate to the harm.

Section 610.20 (Subpoenas): The current inefficient and burdensome requirement for service of defense subpoenas on governmental agencies is fixed by dispensing with the rule mandating one day's advanced notice, but extending the period for the agency's compliance with a court-indorsed subpoena to three days. The showing to sustain a subpoena is specified to be that the testimony or evidence sought is reasonably likely to be "material."

Section 710.30 (Notice of Intended Evidence): The People may avoid the harsh sanction of automatic preclusion of evidence, in situations where they have served untimely notice of intent to offer such evidence, by establishing that the prosecutor acted with due diligence.

Justification

This bill codifies the recommendations of the New York State Bar Association's Task Force on Criminal Discovery. The Association's House of Delegates and Executive Committee both adopted these recommendations without a single dissenting vote - a strong sign that the Task Force's effort to address the urgent need for improving fairness in discovery, while providing ample measures to ensure safety of witnesses, was successful and groundbreaking.

This bill represents tremendous efforts to reach compromises by all sides on this crucially important issue. It is balanced, fair and realistic. In short, it finally solves the key problems that have long stalled these necessary changes in New York State's discovery system.

Under New York's current criminal discovery statute, defendants are denied vitally important information that is essential to make rational decisions about their pending cases. The limited information they receive is also turned over so late that it is often impossible to intelligently investigate the facts, to secure and use exculpatory evidence, to fairly weigh a guilty plea offer, or to develop a trial strategy.

New York's antiquated criminal discovery rules inhibit, at great taxpayer cost, prompt guilty pleas from people who would be willing to resolve their cases if shown the evidence against them. They also force defense lawyers and prosecutors to inundate each other and the court system with boilerplate "demands" and responses for no sound purpose.

This restrictive discovery system is in stark contrast to the discovery rules that apply in civil cases in New York. In civil cases, both parties receive an opportunity through discovery to learn what they should know about the other side's case. Yet in criminal cases, where liberty is at stake, the current rules systematically block innocent or over-charged defendants from investigating and formulating a proper strategy of defense prior to the trial.

The criminal discovery system is also out of step with those in other States. A leading treatise identifies the following fourteen States as those that provide criminal defendants with the least discovery in the nation: "Alabama, Georgia, Iowa, Kansas, Kentucky, Louisiana, New York, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Wyoming." This list actually understates New York's restrictiveness, as at least ten of these "bottom fourteen" States have other procedures that result in the defense receiving crucial information, such as requiring lists of the witnesses' names or addresses in the indictment or granting access to grand jury minutes.

Most recently, Texas (2014) and North Carolina (2004) enacted open discovery statutes, and Ohio (2010) made its already broad discovery rules even more expansive. Large States with big cities that are similar to New York - including California, Florida, Illinois, Massachusetts, Michigan, New Jersey and North Carolina - have utilized broad criminal discovery for years.

This bill will overhaul New York's criminal discovery rules and accomplish two key things: it will help innocent or over-charged defendants fairly prepare for trial, and it will encourage guilty defendants to plead guilty without needless and costly delays.

The bill is even-handed. It requires both the prosecution and the defendant to provide the opposing party with extensive discovery early in the case. It eliminates unduly burdensome requirements of routine discovery paperwork. By employing new mechanisms to address concerns about key issues, it also represents a major advance from other proposals for criminal discovery reform that have been put forward in New York in past decades.

There is a broad consensus nationwide that the principal benefits of discovery reform hinge on requiring early disclosure. But meaningful discovery reform also requires that the obligations actually be achievable by prosecutors and police.

To ensure that its mandates are feasible, this bill establishes that the prosecution's discovery is provided in two calibrated stages. Key items possessed by or readily accessible to prosecutors (such as electronically stored police reports) are discoverable fifteen days after arraignment. Other items - like grand jury transcripts, exhibits, and less "formal" witness statements such as police memo book notes or vouchers, which may be harder for a prosecutor to obtain and may not be in electronic form - are discoverable after ninety days.

The bill requires disclosure of witness information. Well over thirty States currently require that both parties disclose their witnesses' names and addresses, subject to a protective order. No State that has modernized its criminal discovery rules has failed to include such a discovery obligation, and all of them permit prosecutors to withhold witness information from the defense only after the court has issued a protective order allowing non-disclosure.

This uniform practice in modern discovery statutes is based upon the bedrock legal principle that witnesses "belong" to neither party. In addition, it recognizes that having contact information for witnesses is frequently essential to enable an intelligent investigation of the charges; to evaluate and develop available defenses; to find and use exculpatory evidence; and to provide the defendant with informed advice about the advisability of a plea. Just as prosecutors have a crucial need for information to investigate alibi defense witnesses, it is vital for both parties to exchange information for investigating other witnesses as well.

The bill requires the prosecution to disclose names and addresses (or alternative contact information) for all persons known to have information relevant to any offense charged or to a potential defense, not merely of "intended" witnesses. This standard is recommended by the American Bar Association and used in States such as New Jersey, Florida and Minnesota. It recognizes that prosecutors should not refrain from also disclosing information about potential defense witnesses. It will thus reduce possible "gamesmanship" during discovery, and also help to avoid constitutional violations.

Whereas other States rely solely on the court's issuance of a protective order if the prosecution wishes to withhold a witness's name or address, this bill includes additional tools that will assist courts, prosecutors and defense lawyers in ensuring the safety of witnesses.

The bill specifies a robust and flexible standard to be employed when evaluating any application for a protective order. The standard highlights factors such as a defendant's gang affiliation, and it allows withholding of any item where other factors outweigh its usefulness. In addition, it provides for an alternative procedure, used in other States when a protective order is issued, under which physical copies of discovery documents can be turned over to only the defense lawyer, not to the defendant or others, when the defendant is given supervised access to inspect (not obtain copies of) redacted versions of those documents. It also permits expedited review, before a single appellate justice, when the lower court denies a protective order and the prosecutor believes that a witness's safety could be jeopardized.

The bill gives prosecutors the alternative option, in any case, to withhold a witness's address and contact information, without having to show good cause or to obtain a protective order, by making the person available to only counsel for the defendant for an interview. In any case involving a violent felony charge, the bill further gives prosecutors the alternative option to withhold any witness's address or other contact information, without having to apply for a protective order. Adequate contact information for the witness is then separately disclosed in a confidential document available only to defense counsel and named defense personnel, who are prohibited from disclosing it to anyone else. Prosecutors may also make disclosure of such information contingent upon the defendant's personal consent to the use of the attorney-only confidentiality procedure. This approach recognizes that the defendant, in contrast to the lawyer or investigator, does not in general need to learn witnesses' addresses (unlike their names, which often are essential to comprehending and discussing a case).

The bill actually will improve witness safety in many cases, because it regulates the exchange of information between defense counsel and the defendant by bringing that information into the open and placing strict limitations on disclosure. Defense lawyers currently have a duty to attempt to identify witnesses and investigate them, and frequently get results - and usually it is easiest to find witnesses in the most violent and notorious offenses, such as homicides and shootings. Absent a legal directive, however, the attorney has no ethical right to withhold information from her clients simply because she has a "bad feeling" about it. Indeed, without disclosure, sometimes the only resources defense counsel has to locate witnesses is the defendant and the defendant's friends, and it becomes necessary to disclose whatever information defense counsel has to these individuals in order to attempt to contact witnesses. Thus, one of the great advantages of this bill is that, by obtaining a protective order, the prosecutor can place limits on the defense lawyer's disclosure of information to the defendant in situations where it is inappropriate. In the absence of this change in New York law, such limitations would not be available where defense counsel is obtaining the information independently.

It is virtually inevitable in any court system that parties sometimes will overlook disclosure of certain items or make mistakes about discovery. With respect to the potential consequences for violations, this bill employs the term "remedy," not "sanction." This terminology underscores that the purpose of the rules is simply to ensure that both parties receive as much discovery as is feasible, as early as possible (consistent with witness safety) - it is not to "penalize" prosecutors or police or defense lawyers for inevitable lapses during the discovery process despite their reasonably diligent efforts to comply.

If any discoverable material is disclosed belatedly, the bill instructs courts to provide a "remedy" at trial if the party entitled to disclosure is able to show significant prejudice. If any discoverable material is lost or destroyed, the bill instructs courts to provide a "remedy" at trial that is proportionate to how the item reasonably might have been helpful. These are forgiving standards, designed to rectify harm and not to create a windfall for mere mishaps. This bill's system of automatic, early, and broad discovery will enhance fairness, reliability, and over-all efficiency. It will permit adequate case investigations, properly informed decisions on guilty pleas, more fair and orderly trials, and minimize the risk of wrongful convictions. Replacing the outmoded current framework of Article 240 with this internally consistent and balanced Article 245 will accomplish these goals. And it will restore New York State's criminal justice system to a sound position within the national mainstream.

Legislative history

New Bill.

Fiscal implications

To be determined.

Effective date

This act shall take effect immediately after it shall have become a law