What's happening
This bill repeals and replaces New York’s criminal discovery rules, establishing broader and earlier disclosure requirements for evidence between prosecution and defense.
Why it matters
Significantly expands the scope and timing of evidence disclosure. The bill requires prosecutors to automatically share a much broader range of evidence with defense counsel—such as police reports, witness statements, exculpatory material, expert information, and electronic recordings—very early in the process, often within 15 days of arraignment, and even before plea negotiations. This means defendants and their lawyers get much earlier and more comprehensive access to the case against them.
Establishes robust reciprocal obligations and enforcement mechanisms. Both prosecution and defense are now required to file certificates of compliance attesting that all required discovery has been disclosed, and the bill gives courts explicit authority to impose remedies or sanctions for non-compliance (such as delaying proceedings, excluding evidence, or even dismissing charges). This aims to reduce the risk of “trial by ambush” and increase accountability.
Creates a presumption of openness, with limited exceptions. The default is disclosure of material to the defense, unless a court grants a protective order for good cause (e.g., witness safety, ongoing investigations, or privacy concerns). This represents a major shift in favor of transparency and may reduce wrongful convictions caused by suppressed or withheld evidence.
Impacts plea bargaining and pre-trial strategy. By mandating disclosure of core evidence before guilty pleas, the bill seeks to ensure that defendants make informed decisions, rather than pleading without knowing the strength of the prosecution’s case. This could lead to fewer coerced or uninformed pleas, and potentially more pre-trial litigation and challenges to evidence.
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Who cares
Headline styles
Reform Criminal Discovery Rules
Plain English, a few words. Used as the page title.
Sponsors
27 Co-sponsors
- Brian Benjamin
- Alessandra Biaggi
- Neil D. Breslin
- David Carlucci
- Leroy Comrie
- Michael Gianaris
- Andrew Gounardes
- Pete Harckham
- Brad Hoylman-Sigal
- Robert Jackson
- Brian Kavanagh
- Liz Krueger
- John Liu
- Rachel May
- Jen Metzger
- Velmanette Montgomery
- Zellnor Myrie
- Kevin S. Parker
- Roxanne J. Persaud
- Jessica Ramos
- Gustavo Rivera
- Julia Salazar
- James Sanders Jr.
- Diane J. Savino
- Luis R. Sepúlveda
- José M. Serrano
- Toby Ann Stavisky
History
- Referred to codes
- 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.
Overhaul Criminal Discovery Rules
In Assembly Committee · Codes · Sponsor Joseph Lentol
Full text
20 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
S. 1716 A. 1431
2019-2020 Regular Sessions
SENATE - ASSEMBLY
January 15, 2019
IN SENATE -- Introduced by Sens. BAILEY, BENJAMIN, BIAGGI, COMRIE, GIANARIS, HOYLMAN, KAVANAGH, KRUEGER, MONTGOMERY, MYRIE, PARKER, PERSAUD, RAMOS, RIVERA, SAVINO, SEPULVEDA, SERRANO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
IN ASSEMBLY -- Introduced by M. of A. LENTOL, TAYLOR, PERRY, ORTIZ, JEAN-PIERRE, WEPRIN, DICKENS, JAFFEE, BURKE, CRUZ, FALL, FRONTUS, JACOBSON, RAYNOR, REYES -- read once and referred 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 245.05 First court appearance.
245.10 Timing of discovery.
245.20 Automatic discovery.
245.25 Disclosure prior to certain guilty pleas.
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; readiness for trial.
245.55 Flow of information.
245.60 Continuing duty to disclose.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05655-05-9
S. 1716 2 A. 1431
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.
245.90 Depositions. § 245.05 First court appearance.
Certain items in prosecution's possession. At the defendant's first court appearance after commencement of a criminal action, the prosecution shall disclose to the defendant any (a) police or other law enforcement agency reports and written witness statements relating to the criminal action or proceeding against the defendant that are within the prosecution's possession at that time; (b) electronic recordings relating to the criminal action or proceeding against the defendant that are within the prosecution's possession at that time, in accordance with paragraph (g) of subdivision one of section 245.20 of this article; and (c) exculpatory information known to the prosecution at that time. If in the exercise of reasonable diligence and due to the limited availability of resources for downloading or copying recordings, a copy of an electronic recording discoverable under this section is unavailable at the first appearance, a copy shall be made and disclosed to the defendant as soon as practicable but not later than five calendar days after the first appearance. Portions of materials under this section claimed to be non-discoverable may be withheld pending a prompt request by the prosecution for a determination and ruling of the court under section 245.70 of this article; but the discoverable portions of such materials shall be disclosed to the extent practicable. § 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 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 this section, and the discoverable portions of such materials shall be disclosed to the extent 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 prior to the first scheduled trial date.
(c) 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
S. 1716 3 A. 1431
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, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to:
(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.
(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 the first 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 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 any 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 prosecution shall notify the defendant 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 any 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 prosecution shall notify the defendant 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 any potential defense thereto, including
S. 1716 4 A. 1431
all police reports, notes of police and other investigators, 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, a list of publications, and all proficiency tests and results administered or taken in the current employment or within the past ten years, whichever is longer, 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 prosecution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than sixty calendar days before the first 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, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident, and a designation by the prosecutor as to which of the recordings under this paragraph the prosecution intends to introduce at trial or a pre-trial hearing. If the discoverable materials under this paragraph exceed ten hours in total length, the prosecution may disclose only the recordings that it intends to introduce at trial or a pre-trial hearing, along with a list of the source and approximate quantity of other recordings and their general subject matter if known, and the defendant shall have the right upon request to obtain recordings not previously disclosed. The prosecution shall disclose the requested materials as soon as practicable and not less than fifteen calendar days after the defendant's request, unless an order is obtained pursuant to section 245.70 of this article.
(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 relate to the subject matter of the case.
(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, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, 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
S. 1716 5 A. 1431
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. Information under this paragraph also includes, but is not limited to, laboratory information management system records relating to such materials, any preliminary or final findings of nonconformance with accreditation, industry or governmental standards or laboratory protocols, and any conflicting analyses or results by laboratory personnel regardless of the laboratory's final analysis or results. If the prosecution submitted one or more items for testing to, or received results from, a forensic science laboratory or similar entity not under the prosecution's direction or control, the court on motion of a party shall issue subpoenas or orders to such laboratory or entity to cause materials under this paragraph to be made available for disclosure.
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 more fair New York State's discovery rules in the criminal courts, which are currently set forth in Criminal Procedure Law Article 240. This bill would repeal Article 240 and enact a comprehen- sive new statute for the pre-trial exchange of information and evidence in criminal cases. This new Article 245 draws on and supplements discov- ery rules and practices from other states. It would eliminate the unfairness and inefficiencies of current discovery practice, and facili- tate the prompt and accurate disposition of criminal cases.
Summary of provisions
Sections 245.10(1)&(3), 245.50: The prosecution discloses specified information within fifteen days after arraignment, then files a "Certif- icate of Compliance."The defense provides reciprocal discovery 30 days after the prosecution's completion of its discovery obligations, and then files a "Certificate of Compliance." The proposed statute dispenses with the present requirement that the parties file discovery "demands" and omnibus discovery motions. Both parties' disclosures would occur earlier than under present law. A new opening section requires the pros- ecution to disclose basic information in its possession about the case, subject to withholding pending an application for a protective order.
Read the full memo (1,888 words)
Section 245.70: Either party may withhold any item, exhibit or informa- tion and seek a protective order when there is a basis to believe disclosure would be inappropriate. The court has broad authority to issue any type of protective order barring or limiting disclosure, for good cause shown.
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 and is broader than under current law, including, for example, 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 and is broader than under current law, including, for example, police reports and body-worn camera images.
Sections 245.20(1)(c)&(d): The prosecution timely discloses the names of and contact information (but not addresses or telephone numbers) for persons known to have information relevant to any offense charged or a potential defense. Section 245.20(1)(j): The prosecution timely discloses all information which tends to negate the defendant's guilt or to mitigate the defend- ant's culpability, tends to support a potential defense, tends to support a motion to suppress on constitutional grounds, or which would tend to reduce the punishment of the defendant. (This generally is constitutionally-mandated disclosure, and such disclosure is also consistent with the prosecutor's ethical obligations under the Rules of Professional Conduct.) It is mandated to occur earlier than generally occurs under current law, and is broader in that, under the present statute, only "materially" exculpatory information need be disclosed (which leads to confusion and uncertainty on all sides).
Section 245.10(2): The prosecution provides certain discovery before a guilty plea offer, and an offer made prior to disclosure will be held open pending disclosure.The defendant may seek certain, limited remedies if the court finds that a significant discovery violation actually caused an insufficiently-informed rejection or acceptance of the guilty plea offer.
Sections 245.10(3), 245.20(3): The defense discloses names and contact information for witnesses the defense intends to call; all relevant written and recorded statements in its control that were made by those persons (other than the defendant, see, e.g., U.S. Const. Amend V), and intended exhibits, tapes and other electronic recordings, photographs, drawings, tangible objects, reports of tests and experiments, reports of physical and mental examinations, and expert opinion that it intends to offer in evidence. This reciprocal discovery occurs earlier, 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 arguably broader authority than in current law.)
Section 245.70. This section includes a new mechanism for either side (prosecution or defense) to seek an interlocutory (pre-trial) ruling from a single appellate justice when the party disagrees with a trial court's discovery ruling.
Section 245.90. This section adds a limited opportunity for the pre-tri- al deposition of certain witnesses (government employees and experts). Several states (including Florida, Washington, New Hampshire and others) allow depositions in criminal cases. A protective order may be sought if a party believes a deposition of an official or expert has been set for purposes of harassment or any other prohibited purpose.
Justification
Persons 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 defendants in criminal cases in many other states, since the criminal court discovery rules in those states allow broad, early, and automatic exchange of evidence. But under New York's Criminal Procedure Law, important infor- mation essential to make rational decisions is delayed or denied. The limited information disclosed is often turned over so late that it is impossible for defense counsel to intelligently investigate, secure and use any potentially exculpatory evidence, fairly weigh a guilty plea offer, or develop an appropriate trial strategy. Overhaul of New York's criminal discovery rules will accomplish two key things: it will help innocent and unjustly over-charged defendants fair- ly prepare for trial, and it will encourage guilty defendants to plead guilty without needless and costly delays.
Broad discovery in the criminal courts is 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 more akin to New York - including California, Florida, Illi- nois, Massachusetts, Michigan and New Jersey - have, for years, utilized broad criminal court discovery rules. This bill will address crucial shortcomings in New York law and hence, its criminal justice system.
Each day, persons accused of a crime in New York ask their lawyers in the days and months before trial (or while they consider a plea offer) about the prosecution's evidence. But unless the person happens to be charged in one of the few counties where the district attorney voluntary engages in broader discovery, defense counsel is unable to answer inquiries except with generalities.
Almost always, the attorney in New York is unable to help the client fully assess the client's options. Counsel is unable to advise about the strength of the prosecution's case. Instead, counsel may describe the sentencing range if the client is convicted of offenses listed in the bare bones charging document. Then counsel may hazard carefully quali- fied generalities about what evidence might be part of the case. But in the many months until the prosecutor hands over the most important discovery materials, as required by the discovery statute - after the jury has already been selected and sworn at trial - counsel generally cannot assist the client in weighing the advisability of accepting a guilty plea offer or formulating a specific trial strategy. Irrational- ly, guesswork rules the day.
This happens each day in our state's courts because New York's criminal court discovery rules are unduly restrictive and inefficient. They not only 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 make necessary a "war of word processors," in which defense lawyers and prosecutors inundate each other and the court system with boilerplate "demands," omnibus motions and responses for no sound purpose.
Most seriously, because significant disclosure by the prosecution often comes so belatedly and critical materials like police reports, which are routinely provided in other states, are often not disclosed, the current system blocks innocent and over-charged defendants from meaningfully investigating the case, locating and using exculpatory evidence, and formulating a proper strategy of defense prior to the trial.
The American Bar Association has long advocated broader and earlier criminal discovery. Many comparable large States with big cities employ such broader discovery rules. Florida and New Jersey have for decades employed open and early discovery in criminal cases. Other states have recently replaced outdated criminal discovery rules with modern, broader
disclosure practices, including Arizona, Massachusetts and North Caroli- na.
It is in this context that this bill would repeal New York's criminal Court discovery statute, Criminal Procedure Law Article 240, and replace it with a new, more efficient and fair discovery system. This comprehen- sive 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 witnesses or on-going investigations to withhold or redact information and 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. These laws have not resulted in general problems of witness intimidation or impaired law enforcement. Instead, studies have shown that defense lawyers but also prosecutors strongly approve of such discovery practices in these states and consider them efficient and fair.
Implementing a system of early and broad discovery, triggered by time frames and dispensing with the necessity of boiler-plate demands, will help expedite proceedings and better inform all parties of the likely outcome. An informed prosecutor can better assess guilt or innocence, and better assess whether the early selection of charges and charge levels was appropriate. Similarly, with early and broadened discovery, the defense can better understand the strength of the government's case, which can be expected to facilitate earlier and successful plea negoti- ations in many cases.
Moreover, the continued presence of broad protective order provisions, moved to new CPL 245.70, with added opportunities for an (interlocutory) expedited appeal, will assure that the court can issue an order "deny- ing, limiting, conditioning, delaying or regulating" any disclosure for good cause, to address any threat to the integrity of physical evidence or substantial risk of physical harm, intimidation, economic reprisal, bribery or harassment to any person, any adverse effect on law enforce- ment including the protection of confidential informants and "other similar factors that also outweigh the usefulness of the discovery."
Legislative history
A.6907 of 2011-12 A.3667 of 2013-14 A.2924 of 2015-16 A.4360-A of 2017-18
Fiscal implications
There are no direct costs to the state. It is anticipated that expedited disclosure will help resolve cases earlier, saving court and pre-trial detention costs.
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.