NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4360A
SPONSOR: Lentol 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
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 may 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 slaws. 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.
