Discovery is the process by which a criminal defendant learns about the evidence in the prosecution’s case. This includes reports, witness statements, and physical evidence.
In New York, criminal defendants are entitled to almost no discovery – unless they go to trial. Starting next year, however, the discovery laws in New York will be completely reformed.
The “Blindfold” Discovery Law
New York’s discovery law is found in Criminal Procedure Law Article 240. Pursuant to that section, criminal defendants were not entitled to most of the information the prosecution could use in their case until the day trial begins.
For example, suppose a defendant is charged with Assault in the Third Degree – a class “A” misdemeanor. At arraignment, the prosecution need file only the complaint, which merely alleges that an assault occurred against a person (who may or may not be named) at a certain place at a specified time. Thereafter, the prosecution need only file a sworn statement from the victim that the allegations in the complaint is true.
In this case, any other discovery may not be provided to the defendant until the date of trial. Some prosecutors do provide “open file” discovery, but this is usually limited to the documents the prosecutor selects for sharing with the defendant. The defense can also file a “demand for discovery,” but even this is limited to certain evidence.
In felony cases, the “blindfold” can be even worse. A person facing a felony charge may not know who their accuser is until the day of trial. This is even when the witness testified before a grand jury and the case was indicted.
This is despite the fact that many states, including New Jersey, have moved away from such “blindfold” laws. Since 1973, New Jersey has had one of the most progressive discovery schemes. Even Texas, long considered a more conservative state, has had open file discovery since 2014.
The Future of Discovery
As part of the Discovery for Justice Reform Act, beginning January 1, 2020, Criminal Procedure Law Article 240 will be repealed in its entirety. It will be replaced by a new section – Article 245.
Prosecutors will be required to disclose “all items and information that relate to the subject matter of the case.” Because the new law requires disclosure of information, this means that prosecutors can’t avoid disclosure by not writing down notes. Further, it requires sharing all information about the case – not just information a prosecutor intends to use at trial. The list of information to be disclosed includes:
- Statements made by the defendant and co-defendants
- Statements made by witnesses
- Names and affiliations of all law enforcement personnel
- Police reports and notes
- Names and contact information of prosecution and defense witnesses
- Minutes of all grand jury testimony
- Criminal history of defendants and witnesses
- Expert witness names and background information
- Expert witness reports
- List of tangible property
- Tapes and electronic recordings
- Photographs and drawings
- Electronic information from computers and internet-based applications
- Search warrants and related documents
- Reports and writings relating to scientific testing and examination
- Calibration and testing reports
- Evidence favorable to the defendant (Brady information)
The timing of sharing the discovery is important as well. Prosecutors cannot answer “ready” until discovery is completed – this means the speedy trial clock is ticking. And discovery must be completed before any plea offer can be withdrawn. The information must be provided to the defense “as soon as practicable” but otherwise no later than 15 days after the first court appearance. For certain items, a prosecutor can have up to 45 days to comply with discovery. There are also a few other exceptions, but in general “[t]here shall be a presumption in favor of disclosure.”
Court-Ordered and Reciprocal Discovery
A defendant may move for an order from the court allowing access to a relevant location to inspect, photograph, or measure. The defense may also ask for an order granting discovery of items or information which are not turned over by the prosecution. And either party may ask a court to order that certain items be preserved for future review.
Within 30 days of receiving discovery from the prosecutor, a defendant must provide reciprocal discovery. This includes all items and records which the defense intends to introduce at trial. The defense must also provide the name, addresses, and dates of birth for witnesses it intends to call at hearing or trial, along with that witness’s statement. However, when the defense intends to call witness for the “sole purpose of impeaching” a prosecution witness, this doesn’t need to be disclosed until after that witness has testified for the prosecution.
Issues With Implementing the Reforms
Prosecutors are having a tough time setting up systems for sharing discovery. The information must be obtained from law enforcement and many other sources, then copied, then provided to the defense. Quite simply, it can be a logistical nightmare. And prosecutors who are already strapped for personnel and resources are feeling the pinch.
Another concern is regarding the disclosure of witness information. Prosecutors are concerned that witnesses – and in particular victims – will be harassed, threatened, or injured by defendants who know their names and contact information. (Note the requirement doesn’t apply to confidential informants or undercover witnesses.) The new statute allows for protective orders to prevent disclosure of information in risky cases, but the disclosure still causes concern in some cases. A good compromise may be “counsel only protective orders,” where the information will only be shared with defense counsel and not the defendant.
There also questions about enforcement by the court. If items are discovered by the prosecutor after there is a certificate of compliance filed, does that retroactively invalidate the prosecutor’s readiness for trial? There is also an “exceptional circumstances” exception to providing discovery – but what does that really mean in practice?
Finally, there is a question about sanctions for failing to provide discovery as required. The statute sets forth a number of remedies and sanctions, but the discretion to impose these will be with the judge. Clearly, as the new law rolls out, there were certainly be some growing pains as these issues are addressed.
- Center for Court Innovation, Discovery Reform in New York: Major Legislative Provisions (May 2019). Available at: https://www.courtinnovation.org/sites/default/files/media/document/2019/Discovery-NYS_Full.pdf (last accessed Nov. 12, 2019).
- Criminal Procedure Law Article 240. Available at: https://www.nysenate.gov/legislation/laws/CPL/A240 (last accessed Nov. 12, 2019).
- Criminal Procedure Law Article 245. Available at: https://www.nysenate.gov/legislation/laws/CPL/A245 (last accessed Nov. 12, 2019).