What's happening
This bill repeals and replaces New York’s criminal discovery rules, expanding and clarifying what evidence prosecutors and defendants must exchange before trial.
Why it matters
Expands the scope of required evidence sharing. The bill substantially increases the types and amounts of information prosecutors must automatically provide to the defense, including police reports, witness lists (with exceptions for informants/undercover agents), expert opinions, scientific test results, exculpatory evidence, and more—potentially reducing wrongful convictions and increasing trial fairness.
Accelerates and clarifies disclosure timelines. By setting strict deadlines (often 15 days after arraignment or before key hearings/plea deadlines), the bill aims to prevent “trial by ambush” and give both sides more time to investigate, negotiate, or prepare for trial, which could result in more informed plea decisions and fairer trials.
Strengthens enforcement and remedies for non-compliance. Courts are empowered to impose a wide range of remedies or sanctions—including striking testimony, instructing juries to draw adverse inferences, or even dismissing charges—if parties fail to meet their discovery obligations, creating greater accountability and deterrence against withholding evidence.
Protects sensitive information and balances interests. The bill allows parties to seek protective orders to withhold or restrict discovery (e.g., to protect witnesses, ongoing investigations, or privileged material) and provides for expedited appellate review of such decisions, balancing transparency with safety and privacy concerns.
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Who cares
Headline styles
Overhaul Criminal Discovery Rules
Plain English, a few words. Used as the page title.
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No co-sponsors yet.
History
- Referred to codes
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.
Update Criminal Evidence Rules
In Senate Committee · Rules · Sponsor Joseph Lentol
Full text
20 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
8707
IN SENATE
May 10, 2018
Introduced by Sen. BAILEY -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law and the penal law, in relation to establishing new criminal discovery rules; and to repeal article 240 of the criminal procedure law relating thereto
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Article 240 of the criminal procedure law is REPEALED.
§ 2. The criminal procedure law is amended by adding a new article 245 to read as follows:
ARTICLE 245
DISCOVERY Section 245.10 Timing of discovery.
245.20 Automatic discovery.
245.25 Disclosure prior to guilty plea deadline.
245.30 Court orders for preservation, access or discovery.
245.35 Court ordered procedures to facilitate compliance.
245.40 Non-testimonial evidence from the defendant.
245.45 DNA comparison order.
245.50 Certificates of compliance.
245.55 Flow of information.
245.60 Continuing duty to disclose.
245.65 Work product.
245.70 Protective orders.
245.75 Waiver of discovery by defendant.
245.80 Remedies or sanctions for non-compliance.
245.85 Admissibility of discovery. § 245.10 Timing of discovery.
1. Prosecution's performance of obligations. (a) The prosecution shall perform its initial discovery obligations under subdivision one of section 245.20 of this article as soon as practicable but not later than fifteen calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, or simplified information. Portions of materials claimed to be
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03711-04-8
S. 8707 2
non-discoverable may be withheld pending a determination and ruling of the court under section 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of such section, and the discoverable portions of such materials shall be disclosed if practicable. When the discoverable materials are exceptionally voluminous, the time period in this paragraph may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article.
(b) The prosecution shall perform its supplemental discovery obligations under subdivision three of section 245.20 of this article as soon as practicable but not later than fifteen calendar days before trial.
(c) Upon timely defense request, the prosecution shall disclose materials under paragraph (a) of subdivision one of section 245.20 of this article to any defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of a prospective or pending grand jury proceeding, no later than forty-eight hours before the time scheduled for the defendant to testify at a grand jury proceeding pursuant to subdivision five of section 190.50 of this part.
2. Defendant's performance of obligations. The defendant shall perform his or her discovery obligations under subdivision four of section 245.20 of this article not later than thirty calendar days after being served with the prosecution's certificate of compliance pursuant to subdivision one of section 245.50 of this article, except that portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70 of this article; but the prosecution must be notified in writing that information has not been disclosed under a particular section. § 245.20 Automatic discovery.
1. Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy or photograph, each of the following items and information when it relates to the subject matter of the case and is in the possession, custody or control of the prosecution or persons under the prosecution's direction or control:
(a) All written or recorded statements, and the substance of all oral statements, made by the defendant or a co-defendant to a public servant engaged in law enforcement activity or to a person then acting under his or her direction or in cooperation with him or her, other than statements made in the course of the criminal transaction.
(b) All transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant. If in the exercise of reasonable diligence, and due to the limited availability of transcription resources, a transcript is unavailable for disclosure within the time period specified in subdivision one of section 245.10 of this article, such time period may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article; except that such disclosure shall be made as soon as practicable and not later than thirty calendar days before a scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article. When the court is required to review grand jury transcripts, the prosecution shall disclose such transcripts to the court expeditiously upon receipt
S. 8707 3
by the prosecutor, notwithstanding the otherwise-applicable time periods for disclosure in this article.
(c) The names of, and addresses or adequate alternative contact information for, all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to a potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Information under this subdivision relating to a confidential informant may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article; but the defendant shall be notified in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.
(d) The name and work affiliation of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to a potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Information under this subdivision relating to undercover personnel may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article; but the defendant shall be notified in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.
(e) All statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to a potential defense thereto, including all police reports and law enforcement agency reports. This provision also includes statements, written or recorded or summarized in any writing or recording, by persons to be called as witnesses at pre-trial hearings.
(f) Expert opinion evidence, including the name, business address, current curriculum vitae, and a list of publications of each expert witness whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, and all reports prepared by the expert that pertain to the case, or if no report is prepared, a written statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. This paragraph does not alter or in any way affect the procedures, obligations or rights set forth in section 250.10 of this title. If in the exercise of reasonable diligence this information is unavailable for disclosure within the time period specified in subdivision one of section 245.10 of this article, that period shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article; except that the disclosure shall be made as soon as practicable and not later than sixty calendar days before a scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article. When the prosecution's expert witness is being called in response to disclosure of an expert witness by the defendant, the court shall alter a scheduled trial date, if necessary, to allow the prosecution thirty calendar days to make the disclosure and the defendant thirty calendar days to prepare and respond to the new materials.
(g) All tapes or other electronic recordings which the prosecution intends to introduce at trial or a pre-trial hearing.
(h) All photographs and drawings made or completed by a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing.
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(i) All photographs, photocopies and reproductions made by or at the direction of law enforcement personnel of any property prior to its release pursuant to section 450.10 of the penal law.
(j) All reports, documents, data, calculations or writings, including but not limited to preliminary tests or screening results and bench notes, concerning physical or mental examinations, or scientific tests or experiments or comparisons, and analyses performed electronically, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing.
(k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article.
(l) A summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses and copies of all documents relevant to a promise, reward or inducement.
(m) A list of all tangible objects obtained from, or allegedly possessed by, the defendant or a co-defendant. The list shall include a designation by the prosecutor as to which objects were physically or constructively possessed by the defendant and were recovered during a search or seizure by a public servant or an agent thereof, and which tangible objects were recovered by a public servant or an agent thereof after allegedly being abandoned by the defendant. If the prosecution intends to prove the defendant's possession of any tangible objects by means of a statutory presumption of possession, it shall designate such intention as to each such object. If reasonably practicable, the prosecution shall also designate the location from which each tangible object was recovered. There is also a right to inspect or copy or photograph the listed tangible objects.
(n) Whether a search warrant has been executed and all documents relating thereto, including but not limited to the warrant, the warrant application, supporting affidavits, a police inventory of all property seized under the warrant, and a transcript of all testimony or other oral communications offered in support of the warrant application.
(o) All tangible property that the prosecution intends to introduce in its case-in-chief at trial or a pre-trial hearing. If in the exercise of reasonable diligence the prosecutor has not formed an intention within the time period specified in subdivision one of section 245.10 of this article that an item under this subdivision will be introduced at trial or a pre-trial hearing, such time period shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this arti-
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cle; but the disclosure shall be made as soon as practicable and subject to the continuing duty to disclose in section 245.60 of this article.
(p) The results of complete criminal history record checks for all defendants and all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision, other than those witnesses who are experts.
(q) When it is known to the prosecution, the existence of any pending criminal action against all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision.
(r) The approximate date, time and place of the offense or offenses charged and of the defendant's seizure and arrest.
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 and the penal law, in relation to establishing new criminal discovery rules; and to repeal article 240 of the criminal procedure law relating thereto
Purpose
To modernize and make New York State's criminal discovery rules fairer. This bill calls for the repeal our current flawed discovery rules (Arti- cle 240 of the Criminal Procedure Laws) and offers a better, comprehen- sive statute; Article 245.This bill eliminates the unfairness and inef- ficiencies of the present system and, if enacted, would facilitates swift, efficient, and just disposition of criminal cases.
Summary of provisions
*245.10. Timing of discovery *245.20. Automatic discovery *245.25. Disclosure prior to guilty plea deadline *245.30. Court orders for preservation, access or discovery *245.35. Court ordered procedures to facilitate compliance *245.40. Non-testimonial evidence from the defendant *245.45. DNA comparison order *245.50. Certificates of compliance *245.55. Flow of information *245.60. Continuing duty to disclose *245.65. Work product *245.70. Protective orders *245.75. Waiver of discovery by defendant *245.80. Remedies or sanctions for noncompliance *245.85. Admissibility of discovery
Read the full memo (1,499 words)
Sections 245.10(1)&(3), 245.50: The prosecution automatically provides its discovery 15 days after arraignment, and then files a "Certificate of Compliance." The defense automatically provides its reciprocal discovery 30 days after the prosecution's completion of its discovery obligations, and then files a "Certificate of Compliance." (These rules dispense with the need for filing written discovery "demands" and discovery motion practice, and both parties' disclosures occur earlier than under current law.)
Section 245.70: Either party may withhold any discoverable item or information when there is a basis to believe that a protective order would be appropriate, and the court may issue any type of protective order for good cause shown. (This rule is the same as under current law.)
Section 245.20(1)(e): The prosecution timely discloses all relevant written or recorded statements in its control that were made by persons whom the prosecutor knows to have information relevant to any offense charged or to a potential defense thereto. (This occurs earlier than under current law, and is broader than under current law in particular because it includes statements by potential defense witnesses.)
Sections 245.20(1) (a), (f), (g), (h): The prosecution timely discloses all relevant police reports and law enforcement agency reports, police paperwork, intended exhibits, tapes and other electronic recordings, photographs, drawings, tangible objects, reports of scientific tests and experiments,-reports of physical and mental examinations, defendants' and co-defendants' statements, and expert opinion evidence. (This occurs earlier than under current law, and is broader than under current law in particular because it includes police reports.)
Sections 245.20(1)(c) & (d): The prosecution timely discloses the names of and contact information for all persons whom the prosecutor knows to have information relevant to any offense charged or to a potential. defense thereto. (This information need not be disclosed under current law.)
Section 245.20(1)(k): The prosecution timely discloses all information which tends to negate the defendant's guilt or to mitigate the defend- ant's culpability, or which tends to support a potential defense, or which tends to support a motion to suppress on constitutional grounds, or which would tend to reduce the punishment of the defendant. (This is similar to the ethical requirement of Rule of Professional Conduct § 3.8. It occurs earlier than under current law, and is broader than under current law insofar as it abandons the requirement that only "mate- rially" exculpatory information need be disclosed.)
Section 245.25(2): The prosecution provides "material" discovery before a guilty plea offer when a deadline has been placed on that offer. If the prosecution does not comply with a proper request made pursuant to this paragraph, the guilty plea offer shall be deemed available to the defendant until seven calendar days after the prosecution has made the disclosure or the court nay take other appropriate action as necessary to address the non-compliance. (This is not an expressly stated power of the court under current law.)
Sections 245.10(2), 245.20(4): The defense discloses the names of and contact information for all witnesses whom it intends to call; all rele- vant written and recorded statements in its control that were made by those persons (other than the defendant); and intended exhibits, tapes and other electronic recordings, photographs, drawings, tangible objects, reports of scientific tests and experiments, reports of phys- ical and mental examinations, and expert opinion evidence that it intends to offer.(This reciprocal discovery occurs earlier than, and is broader than, under current law.)
Section 245.30: The court has discretionary authority to order discovery of items not otherwise covered by the statute, when an appropriate show- ing is made. (This is not available under current law.)
Justification
In BERGER V. UNITED STATES, 295 U.S. 78, 88 (1935), the United States Supreme Court declared that the prosecutor must be a servant of the law, both seeking to avoid wrongful convictions and using every legitimate means, to bring about just ones. In recent years, far too many criminal cases have exposed the government's failure, whether through negligence or by design, to uphold our constitutional obligations to defendants. This failure has been exacerbated, principally, by our woefully inade- quate state discovery laws. Our rules and procedures. To assist in the speedy resolution of criminal cases, to help the innocent from suffering harm, and to ensure that the guilty (every person wrongly charged enables a criminal to walk free) face certain justice, New York desper- ately needs reform in this area. Fairer discovery will not impede law enforcement from carry out its mission--it will assist them and will prevent miscarriages of justice. Our current discovery rules were last significantly revised in 1979. It's well past time for the reforms, proposed in this bill, to be instituted. The time for change is now.
People litigating a civil claim in New York State, such as a debt or a contract dispute, have the opportunity through discovery to learn what they should know about the other side's case. So, too, do criminal defendants in many other states, since their criminal discovery rules allow broad, early, and automatic access to the prosecution's evidence. But under New York's criminal discovery statute, defendants are denied vitally important information, 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 inves- tigate, to secure and use any potentially exculpatory evidence, to fair- ly weigh a guilty plea offer, or to develop a trial strategy. Overhaul of New York's criminal discovery rules will 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.
Broad criminal discovery is in fact the mainstream approach. 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." In contrast, large states with big cities that ordinarily are considered much more akin to New York - including California, Florida, Illinois, Massachusetts, Michigan and New Jersey - have utilized broad criminal discovery provisions for years. This bill will rectify this crucial defect in New York State's criminal justice system. It is in this context that this bill would repeal New York's criminal discovery stat- ute, Criminal Procedure Law Article 240, and replace it with a new - more efficient and more fair - discovery system. This comprehensive new discovery statute, Article 245, draws on and supplements discovery rules and practices from these other States.
Importantly, Article 245 is even-handed. It requires both the prose- cution and the defendant to provide the opposing party with extensive discovery early in the case. It eliminates unduly burdensome require- ments of routine discovery paperwork. And it includes a mechanism for prosecutors with legitimate concerns about the safety of their witnesses or with on-going investigations to withhold or redact any evidence or information covered by the statute and to move for a protective order. These same mechanisms for discovery in criminal cases have been shown to work successfully in states containing the big cities Los Angeles, Chicago, Detroit, Philadelphia, Miami, San Diego and Newark. They have not resulted in general problems of witness intimidation or impaired law enforcement. Instead, studies have shown that not only defense lawyers but also prosecutors in these states strongly approve of such discovery practices and consider them to be efficient and fair.
Implementing a system of automatic, early, and broad discovery in New York State will be more effectively and coherently accomplished by replacing Article 240's framework with this new, comprehensive and internally consistent statute, which draws on the best features and language of modern discovery provisions that have worked in other compa- rable jurisdictions.
Legislative history
A.6907 of 2011-12; A.3667 of 2013-14; A.2924 of 2015-16; A.4360 of 2017-18
Fiscal implications
None
Effective date
This act shall take effect 90 days after becoming law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.