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September 18, 2019 Top Story

State Overhauls Criminal Discovery Rules

Early production of evidence will allow defendants to make informed decisions

By Laura W. Givens

The New York State Senate passed new discovery laws that will require prosecutors to turn over critical evidence to the accused at earlier stages of the criminal process. Bill S1716 is expected to be signed by Governor Andrew Cuomo and will take effect 90 days thereafter. ABA Section of Litigation leaders believe this is a step in the right direction for fairness and efficiency in criminal proceedings.

New discovery laws require prosecutors to turn over evidence at earlier stages of the criminal process

New discovery laws require prosecutors to turn over evidence at earlier stages of the criminal process

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New Criminal Discovery Requirements

New York’s new procedures will eliminate the need for sending discovery requests and require certain automatic discovery. At the defendant’s first court appearance, the prosecution will be required to disclose to the defendant any law enforcement reports and written witness statements, electronic recordings, and exculpatory information. The prosecution must perform its initial discovery obligations within 15 days after the defendant’s arraignment on an indictment.

Initial discovery includes all items and information that relate to the subject matter of the case, including statements, transcripts of grand jury testimony, names and contact information of persons with relevant information, designation of witnesses, police reports, and expert witness information. If the information is unavailable within the specified time, it must be provided no later than 60 days before the trial date.

The prosecution may request a hearing if it believes any portion of the materials to be disclosed is non-discoverable. Information relating to a confidential informant or undercover personnel may be withheld without a motion, but the prosecution must inform the defendant that such information is being withheld.

Purpose of the Overhaul

The new laws are broader and mandate earlier discovery deadlines than the current rules. The bill’s sponsor memorandum states that it will “eliminate unfairness and inefficiencies of current discovery practice and facilitate the prompt and accurate disposition of criminal cases.” The overhaul of discovery “will accomplish two key things: it will help innocent and unjustly over-charged defendants fairly prepare for trial, and it will encourage guilty defendants to plead guilty without needless and costly delays,” according to the memorandum.

A Step in the Right Direction

In civil discovery, parties have the opportunity to learn what they should know about the other side’s case. In criminal cases, however, information essential to make rational decisions can be delayed or denied. “In civil cases, you generally are entitled to receive from the opposing party anything relevant that is not privileged. In criminal cases, you receive less information from the government, and the defendant’s liberty is at issue,” observes Michael T. Dawkins, Jackson, MS, chair of the Ethics Subcommittee of the Section of Litigation’s Criminal Litigation Committee.

New York’s new laws improve the discovery process by mandating that the prosecution turn over witness statements to the defense at the beginning of the case. “Under Brady v. Maryland, the defendant is entitled to exculpatory materials. However, you may not get that material until right before or even during trial. This may not leave enough time for the defense to find witnesses who will support the evidence. The revised New York rules make this information available at the initial appearance, which is a great change,” adds Dawkins.

The new rules also improve the procedures for getting important discovery materials from law enforcement. “Under the new New York rules, the defense gets police reports and law enforcement reports. Under the federal rules, a defense attorney may need a Federal Rule of Criminal Procedure 17 subpoena to get the report, and then make a Rule 17(c) motion to get it in advance of trial. The New York rules get ahead of that and don’t require attorneys to rely on Rule 17. This is to the advantage of defense counsel and fairness,” says Dawkins.

The new criminal discovery rules may also change the landscape for guilty pleas. “Open discovery will allow defendants and their counsel to make more educated decisions throughout the process, whether related to guilt, innocence, punishment, investigation, or the prosecution’s ability or lack thereof to meet its burden of proof,” says Darryl A. Goldberg, Chicago, IL, chair of the Trial Evidence Subcommittee of the Section’s Criminal Litigation Committee. “In theory, you should see defendants feeling less pressure to plead guilty to charges to avoid jail time while they wait for evidence to be turned over, more trials and pretrial motions to suppress, and less severe sentences. With more information available at a rapid pace, defendants can make more informed decisions,” says Goldberg.

For some Section leaders, the rationale for limiting discovery in criminal cases is no longer defensible. “Historically, there has been opposition to providing witness-related discovery to defendants at the earliest opportunity because it would expose witnesses to intimidation or worse. As a defense lawyer, I’ve always considered fears of witness harassment overblown in the context of providing discovery and its timing, and commend New York lawmakers for passing the act,” adds Goldberg.


Laura W. Givens is a contributing editor for Litigation News.

Hashtags: #criminalprocedure, #newyorkcriminalcourts, #criminaldiscovery

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