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Prepared by John Schoeffel Criminal Defense Special Litigation Unit This Report Also is Available at: www.legal-aid.org April 1, 2009


I. Introduction To The Proposal

II. The Need For Criminal Discovery Reform

III. Proposed Statutory Language For A C.P.L. Article 245 (without commentaries). 13 IV. Proposed Statutory Language For A C.P.L. Article 245 (with commentaries)...... 27 V. Five Past Proposals For Discovery Reform In New York State

VI. Highlights Of Massachusetts’ Discovery Rules

VII. Highlights Of New Jersey’s Discovery Rules

VIII. Highlights Of Florida’s Discovery Rules

IX. Highlights Of Colorado’s Discovery Rules

X. Highlights Of Arizona’s Discovery Rules

XI. Highlights Of Discovery Rules In Other Large States With Big Cities............... 148 i


People litigating a civil claim in New York State, such as a debt or a contract dispute, have the opportunity through discovery to learn almost everything 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 antiquated 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 investigate, to secure and use any potentially exculpatory evidence, to fairly 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 far from radical or untested. It 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. It is high time for New York State to rectify this crucial defect in our criminal justice system.

If you are accused of a crime in New York State, your questions to your lawyer in the days and months while you await a trial (or while you consider plea bargaining) will focus largely on learning about the prosecution’s evidence. But to your dismay, unless you are lucky enough to be charged in one of the few counties where the District Attorney has rejected miserly statutory discovery, your lawyer probably will be unable to answer your inquiries except with generalities.

Almost always your lawyer will be unable to help you fully assess your options or to thoroughly advise you about the strength of the prosecution’s case. Instead, she will tell you the sentencing range you face if convicted of the offenses listed in the bare bones charging document. Then she will hazard carefully qualified generalizations about what evidence might be part of the prosecution’s case against you. But in the many months until the prosecutor hands over the most important discovery materials when required by the discovery statute – after the jury has already been selected and sworn at trial – she probably cannot assist you in weighing the advisability of accepting a guilty plea offer or formulating a specific trial strategy, other than with guesswork.

– INTRODUCTION TO THE PROPOSAL – This happens every day in our State courts because New York’s criminal discovery rules are extraordinarily 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 bizarre “war of word processors,” in which defense lawyers and prosecutors inundate each other and the court system with discovery “demands” and motions and responses for no sound purpose.

Most seriously, because significant discovery from the prosecution occurs so belatedly – and critical materials like police reports that are routinely provided in other states are not ordinarily disclosed – New York’s discovery rules systematically block innocent or over-charged defendants from meaningfully investigating the case; locating and using exculpatory evidence; and formulating a proper strategy of defense prior to the trial.

Unlike in States that have modernized their criminal discovery rules, prosecutors in New York are not even required to divulge all exculpatory evidence. Instead, exculpatory evidence known only to the prosecutor and the police must be turned over only when the prosecutor makes a discretionary judgment call that the information is so important that it could result in the defendant’s acquittal at a trial that has not yet even occurred. This archaic and unsound rule corrodes public confidence in the fairness of the criminal justice system. It encourages an inappropriate culture of gamesmanship when freedom is at stake. And it has been proven to contribute to wrongful convictions. Instead, New York should join states like Arizona, Illinois and Massachusetts and enact a commonsense rule that prosecutors must automatically hand over all known information that tends to mitigate or negate the defendant’s guilt. In fact, such disclosure already is required under New York’s recently adopted Rules of Professional Conduct, but in practice there are ordinarily no professional penalties when a prosecutor does not live up to these ethical goals.

Notably, the “National Prosecution Standards,” promulgated by the National District Attorneys Association, call for broader discovery than under New York law. In particular, they advise prosecutors to disclose “any” known information “which tends to negate or reduce the guilt of the defendant pertaining to the offense charged.” Further, they advise prosecutors to provide “names and addresses” of intended witnesses. Their official commentary adds that, in any jurisdiction that does not now require such disclosures, “the prosecutor is encouraged to seek their adoption by the appropriate rule-making authority.

The prosecutor should do so individually and through the legislative advocacy and related activities of his state prosecutors’ association, bar association, and judicial conferences.” The American Bar Association has long advocated broader and earlier criminal discovery. Many comparable large States with big cities employ such discovery rules.

Florida and New Jersey have employed open and early discovery in criminal cases for decades. Other States have recently replaced their outdated criminal discovery rules with an expanded and liberalized approach, including Arizona, Massachusetts and North Carolina.

New York should now join this trend.

It is in this context that this report proposes that New York’s criminal discovery statute, Criminal Procedure Law Article 240, should be repealed and replaced by a new – more efficient and more fair – discovery system. The report includes language for a


comprehensive new discovery statute called “Article 245.” It draws on and supplements discovery rules and practices from these other States.

Importantly, our proposed “Article 245” is even-handed. It would require both the prosecution and the defendant to provide the opposing party with extensive discovery early in the case. It would eliminate unduly burdensome requirements of routine discovery paperwork. And it would include 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.

Other noteworthy proposals for overhauling New York’s unfair and inefficient criminal discovery rules have been raised in recent years by the Chairman of the Assembly Codes Committee, Assemblymember Joseph Lentol, and by the Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge. A few District Attorneys even have voluntarily abandoned Article 240’s limited and inefficient disclosure requirements, and have successfully practiced forms of “open file” discovery for years.

The Legal Aid Society joins in these urgent calls for reform. We also respectfully suggest that 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 a new, comprehensive and internally consistent statute, which draws on the best features and language of modern discovery provisions that have worked in other comparable jurisdictions.

This report first sets forth in detail the main arguments in support of criminal discovery reform in New York State. Then it proposes the full statutory language for a new “Article 245.” Next it reiterates the provisions of “Article 245” with explanatory commentaries interspersed after each provision. It summarizes five past proposals for discovery reform in New York. Finally it surveys the discovery rules of several states that have successfully practiced more fair and more efficient criminal discovery.



Committees of experts and practitioners have repeatedly urged the Legislature to fundamentally revise, modernize, and make more fair New York State’s restrictive criminal discovery rules. Those rules are set forth in Criminal Procedure Law Article 240. Lay people and even lawyers who practice in the civil context are commonly surprised to learn that a criminal defendant in New York is not entitled to basic discovery in advance of trial, such as police reports from the investigation of the case, the names and contact information of witnesses, and those witnesses’ prior testimony and statements, let alone the type of discovery available to civil litigants, such as depositions, so that he or she may intelligently investigate the case, prepare for trial, or decide whether to plead guilty.1 In addition, rules regarding the disclosure of evidence known to the prosecution that potentially exculpates the defendant are entirely unformulated in the discovery statute and left to the various prosecutors’ interpretations of the evidence, and of whether or when it should be divulged.

The 2008 report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge “recommends that Article 240 and other sections of the Criminal Procedure Law be amended to effect broad reform of discovery in criminal proceedings.”2 The 2006 report of the Commission on the Future of Indigent Defense Services declared that “we could not ignore the obvious built-in inefficiency in existing discovery procedures and practices that causes delay and inhibits the efficient disposition of cases.”3 A wide-ranging study commissioned for that report observed: “Unfortunately, New York discovery rules do not require prosecutors to disclose important discovery material in a manner that allows for adequate preparation by the defense.”4 In some counties, District Attorneys have voluntarily abandoned Article 240’s limited and inefficient disclosure requirements, and a 2006 survey and report of the New York County Lawyers’ Association found that “those boroughs [of New York City] with more liberal disclosure report the most universal satisfaction with the process regardless of position within the system.”5 Such criticisms of Article 240 have persisted for decades. A study commissioned by the New York State Assembly Codes Committee in 1991 surveyed prosecutors and defense A leading treatise identifies fourteen states – including New York – as providing criminal defendants with the least discovery in the nation. The group includes: “Alabama, Georgia, Iowa, Kansas, Kentucky, Louisiana, New York, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Wyoming.” See 5 Wayne R. LaFave et al., Criminal Procedure §20.2(b), n.31 (3d ed. 2008).

See “Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge of the Courts of the State of New York” (January 2008), p. 3 (emphasis added).

See Commission On The Future Of Indigent Defense Services, “Final Report to the Chief Judge of the State of New York” (2006), p. 24 (emphasis added).

See The Spangenberg Group, “Status of Indigent Defense In New York: A Study for Chief Judge Kaye’s Commission on the Future of Indigent Defense Services” (2006), pp. 77-83, 146-48 at 78.

See New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006), p. 2 (emphasis added).


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