Expand Criminal Discovery Rights

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 discov- ery 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). "Favora- ble" 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 mate- rial 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 choos- es 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 noth- ing, 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 adver- sary'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 protec- tive 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 priv- ilege or witness intimidation are shown to exist.

The benefits of more thorough and timely disclosure of material poten- tially 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-convic- tion 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

S.6847A of 2017-2018 (Hoylman): Died in Rules (2017)/Died in Codes (2018) A.3056 of 2017-2018 (Lentol): Passed in Assembly (2017)/Died in 3rd Reading (2018) 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.