Require Automatic Criminal Discovery

Section 1. Article 240 of the criminal procedure law is REPEALED and a new article 240 is added to read as follows:

ARTICLE 240

AUTOMATIC DISCOVERY Section 240.10 Automatic discovery; generally.

240.15 Automatic discovery; sanctions.

240.20 Automatic discovery; depositions.

240.25 Automatic discovery; notice and preservation of evidence.

240.30 Automatic discovery; remedies or sanctions for noncompli-

ance.

240.35 Automatic discovery; discretionary discovery by order of

the court.

240.40 Automatic discovery; order to grant access to premises.

240.45 Automatic discovery; certificate of compliance.

240.50 Automatic discovery; continuing duty.

240.55 Automatic discovery; work product.

240.60 Automatic discovery; protective orders.

240.65 Automatic discovery; amendment of discovery orders.

240.70 Automatic discovery; non-testimonial evidence from the

defendant.

240.75 Automatic discovery; orders regarding DNA comparisons. § 240.10 Automatic discovery; generally.

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

[ ] is old law to be omitted.

LBD05623-01-9

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1. Mandatory open file discovery. (a) Upon commencement of a criminal action, and without a motion by the defense, the prosecution shall disclose to the defense, and permit the defense to discover, inspect, copy or photograph, and test all items and information in the possession, custody or control of the prosecution, or persons under the prosecution's direction or control, which relate to the subject matter of the case or are otherwise relevant, including but not limited to:

(i) All statements, written or recorded or summarized in any writing or recording, and the substance of all oral statements, made by the defendant or a co-defendant;

(ii) All statements, written or recorded or summarized in any writing or recording, and the substance of all oral statements, made by persons whom the prosecutor knows to have evidence or information that relate to the subject matter of the case or are otherwise relevant;

(iii) All photographs, tangible objects, video and audio recordings, and electronic recordings and data, including but not limited to cell phone triangulation data, pen registry and wire tapping data, that relate to the subject matter of the case or are otherwise relevant; with respect to tangible objects obtained from, or allegedly possessed by, the defendant or a co-defendant, the prosecution shall provide a summary indicating whether the object was physically or constructively possessed by the defendant, whether the object was recovered during a search or seizure by a public servant or an agent thereof, whether the prosecution intends to prove the object was recovered by a public servant or agent thereof after being abandoned by the defendant, whether the prosecution intends to prove the defendant's possession of the object by means of a statutory presumption of possession, and the location where the object was recovered;

(iv) Reports and records of physical or mental examinations of the defendant or the complaining witness or of scientific tests or experiments, including all data, calculations, or writings of any kind, including but not limited to, preliminary tests or screening results and bench notes;

(v) All exhibits and demonstrative evidence the prosecutor intends to introduce at a hearing or trial that relate to the subject matter of the case or are otherwise relevant;

(vi) The names, known aliases, addresses and birth dates of all persons, other than law enforcement personnel, whom the prosecutor knows to have evidence or information that relate to the subject matter of the case or are otherwise relevant, as well as a designation by the prosecutor as to which of those persons may be called as witnesses;

(vii) Any documentation and summary of prior complaints, indictments, convictions, dispositions, and findings of false testimony of all defendants and of any person the prosecutor has designated as a civilian witness who may be called at trial pursuant to subparagraph (vi) of this paragraph;

(viii) The name, rank, shield number and business address of all law enforcement personnel whom the prosecutor knows to have evidence or information that relate to the subject matter of the case or are otherwise relevant;

(ix) Any documentation and summary of impeachment material, including but not limited to: prior complaints, indictments, convictions, pending and closed investigation records, and instances where said person has been found incredible, of any person the prosecutor has designated as a law enforcement officer or agent thereof who participated in the inves-

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tigation that relates to the subject matter of the case pursuant to subparagraph (vii) of this paragraph;

(x) All transcripts of the testimony of any person who has testified before any grand jury when the testimony relates to the subject matter of the case or is otherwise relevant;

(xi) A summary, pursuant to subdivision two of this section of all corporeal or non-corporeal or voice identification procedures, whether or not an identification was made, and all documents, photographs, and other materials relating thereto;

(xii) All facts, evidence, and information favorable to the defendant, including but not limited to information that tends to negate the defendant's guilt or that tends to mitigate the defendant's culpability as to a charged offense, or that tends to support a potential defense thereto, or that tends to support a motion to suppress evidence on constitutional or statutory grounds, or that would tend to reduce the punishment of the defendant, or that is relevant to a witness's credibility, without regard to the materiality of the information;

(xiii) A summary of all discussions, overt or tacit promises, rewards, inducements, or offers of leniency made to a potential prosecution witness, and copies of all documents and materials relevant to such promise, reward, inducement, or offer of leniency;

(xiv) A summary of all evidence or information that has been provided by a confidential informant or jailhouse informant and that relate to the subject matter of the case or are otherwise relevant;

(xv) Information regarding whether a search warrant has been executed and all documents and electronic recordings or records relating thereto, including but not limited to the warrant, the warrant application, all 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;

(xvi) Information regarding whether there has been any electronic surveillance, including but not limited to wire tapping or video surveillance, of a residence or business or telephone or computer or other electronic or digital device or social media accounts of the defendant, or of conversations to which the defendant or a co-defendant was a party, and all recordings, transcripts, documents, warrants and warrant application materials relating thereto;

(xvii) Intended expert opinion evidence, including the name, business address, current curriculum vitae, and a list of publications of each intended expert witness, 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, and any instances where the expert has been found incredible or to have been in perjury; if such intended expert opinion evidence is not furnished within fifteen days of the expert witness's completion of the report, the expert witness may, upon application by the defendant, be barred from testifying at trial;

(xviii) A list of all misconduct and criminal acts of the defendant not charged in the indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor, which the prosecution intends to use at trial for purposes of impeaching the credibility of the defendant or as substantive proof of any material issue in the case; and

(xix) All department of criminal justice services criminal history record checks for all witnesses who the prosecution intends to call, all defendants, and all co-defendants.

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(b) Nothing in this subdivision shall be interpreted to limit the scope of the prosecution's discovery obligations. In all questions arising regarding the scope of the prosecution's obligation to disclose to the defense and to permit the defense to discover, inspect, copy or photograph all items and information in the possession, custody or control of the prosecution, or persons under the prosecution's direction or control, which relate to the subject matter of the case or are otherwise relevant, there shall be a presumption in favor of disclosure.

2. Identification procedure summaries. Summaries disclosed pursuant to subparagraph (xi) of paragraph (a) of subdivision one of this section shall include:

(a) The date, time, location, type, and result of each procedure;

(b) The names of all persons present at each procedure if known to law enforcement;

(c) The name and address of each eyewitness at each procedure;

(d) The number and source of all photographs or lineup participants used in each procedure;

(e) A copy of all photographs, photographic arrays, and photographs taken of all lineups viewed by an eyewitness;

(f) The descriptions of suspects entered into an electronic or computer photographic identification system, and a saved collection of the photographic images generated by each description and viewed by each eyewitness;

(g) Whether the procedure was simultaneous or sequential;

(h) All statements made in the presence of or by each eyewitness;

(i) Whether the eyewitness selected a different person as the perpetrator or indicated a belief that he or she could not identify the perpetrator;

(j) Whether before the procedure the eyewitness was instructed that the perpetrator might or might not be present; and

(k) Whether the administrator of each procedure knew which person was the suspect, and whether, before the procedure, the eyewitness was instructed that the administrator did not know which person was the suspect.

3. Disclosure prior to guilty plea deadline. (a) Upon a felony complaint, where the prosecutor has made a pre-indictment guilty plea offer, the prosecutor must disclose to the defense, and permit the defense to discover, inspect, copy or photograph, and test all items and information that would be discoverable under subdivision one of this section that are in the possession, custody or control of the prosecution. Such disclosure must be completed within a reasonable time, but not less than three days, prior to the expiration date of any guilty plea offer by the prosecution or any deadline imposed by the court for a guilty plea. A defendant may waive his or her rights under this subdivision; except that a guilty plea offer may not be conditioned on such waiver.

(b) Upon an indictment, superior court information, prosecutor's information, simplified information charging a misdemeanor, information, or misdemeanor complaint, the prosecution must comply with all disclosure required by subdivision one of this section and file a certificate of compliance pursuant to section 240.45 of this article at least seven days prior to the expiration date of any guilty plea offer by the prosecution or any deadline imposed by the court for a guilty plea. If the prosecution does not comply with this subdivision, the offer shall be deemed available to the defendant until seven days after the prosecution has filed a certificate of compliance. A defendant may waive his or her

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rights under this subdivision; except that a guilty plea offer may not be conditioned on such waiver.

4. Reciprocal discovery. The defendant shall, subject to constitutional limitations and within ninety days of when the prosecution files its certificate of compliance pursuant to section 240.45 of this article, disclose to the prosecution, and permit the prosecution to discover, inspect, copy, photograph, or test:

(a) Intended expert opinion evidence, including the name, business address, current curriculum vitae, and a list of publications of each intended expert witness, 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;

(b) All photographs, tangible objects, video and audio recordings, electronic recordings and data, reports of physical or mental examinations of any person or of scientific tests or experiments, and exhibits that the defendant intends to introduce at trial in his or her case in chief; and

(c) All statements, written or recorded or summarized in any writing or recording made by a witness who the defendant intends to call at trial, other than statements made by the defendant, except that disclosure under this subdivision is not required until the close of the prosecution's case in chief.