Significant Changes In Criminal Discovery Adopted by NY State Bar House of Delegates
MONDAY, FEBRUARY 09, 2015

The Task Force on Criminal Discovery, established in 2012 by Seymour James, Attorney-in-Chief of The Legal Aid Society,  has recommended that prosecutors turn over more information much earlier to the defense in what its members say would be the most significant changes in criminal discovery in more than three decades. The report and recommendations of the Task Force on Criminal Discovery were adopted by a unanimous voice vote by the New York State Bar's House of Delegates during its January 30th meeting in New York City.

In 2009, The Legal Aid Society advocated in a report that CPL §240 should be repealed and replaced with a new discovery law. Like the state bar task force, The Legal Aid Society recommended the prosecution automatically turn over the names of witnesses and others with "relevant" information.

John Schoeffel, a Staff Attorney in the Criminal Practice’s Special Litigation Unit, wrote the 2009 report and was a member of the state bar task force who concurred with the report approved Jan. 30.  Schoeffel’s Discovery Report served as the basis for the recommendations of the Task Force on Criminal Discovery. The task force was formed in 2012 by Seymour James, who was then the President of the New York State Bar Association and the Attorney-in-Charge of the Criminal Practice of The Legal Aid Society.

 

 

 

The New York Law Journal
Prosecutors Balk at Report Advocating Earlier Discovery
By Joel Stashenko
February 9, 2015   

A state bar task force has recommended that prosecutors turn over more information much earlier to the defense in what its members say would be the most significant changes in criminal discovery in more than three decades.

The Task Force on Criminal Discovery took more than two years to develop its report and recommendations, which were adopted by a unanimous voice vote by the New York State Bar's House of Delegates during its Jan. 30 meeting in New York City.

But the overwhelming endorsement came over the objections of three prosecutors on the task force who cautioned against a "radical" restructuring of Criminal Procedure Law §240.

The task force wants prosecutors to turn over, within 15 days of a defendant's arraignment, the names and addresses of all planned witnesses, plus identifying information about "all persons" whom the prosecution knows to have relevant information about the crime.

Most New York counties withhold the names of witnesses the district attorney intends to call—even the complaining witness—until just before trial or when the witnesses testify at a pretrial proceeding.

Defense attorneys have long argued that the current practice severely hinders their ability to conduct their own interviews and formulate an effective response.

The enhanced discovery should be paired with special measures to protect witnesses from physical harm, the task force said, such as liberalizing judge's powers to issue protective orders and establishing exemptions against disclosure for witnesses who could face special threats to their safety.

The task force also recommended that the defense enhance the discovery materials it must turn over to the prosecution.

The co-chair of the task force, acting Brooklyn Supreme Court Justice Mark Dwyer, acknowledged the controversy that the recommendations would create and the criticism from prosecutors that the task force failed to give their views more weight.

"It strikes me that this is not a prosecutor's bar association," he told the House of Delegates prior to their adoption of the report. "It's the New York State Bar Association, and most of our members are not prosecutors. And we obviously can't give the prosecutors 50 percent weight in assessing all these issues."

Dwyer, who spent 33 years in the Manhattan District Attorney's Office before becoming a judge in 2010, added, "I think we have to realize that the prosecutors are going to oppose this."

The three prosecution-oriented members of the task force warned that changing the discovery rules would have "enormous consequences for the criminal justice system, with a potentially devastating impact on our ability to secure the cooperation of civilian witnesses and ensure their safety."

The dissenters argued that the current CPL provides for disclosure to unfold in an orderly way that gives the defense the information necessary to make pretrial motions and defend the suspect in a way the Constitution requires.

The fact that the Legislature has not seen fit to overhaul the criminal discovery statute since 1977 is not a sign of recalcitrance or hostility toward criminal defendants, the objectors wrote. Rather, lawmakers are rightfully worried about adopting an approach that could "strike at the heart of the criminal justice system, by compromising not only people's safety, but their willingness to help prevent and solve crimes, and to tell the truth in court."

"All of these facts highlight the need to approach this area with the utmost caution," the three task force members said.

The dissenters were Steven Goldstein, the chief assistant district attorney in New York City's Office of the Special Narcotics Prosecutor; Essex County District Attorney Kristy Sprague and Itamar Yeger, Rockland County's executive assistant district attorney.

Dwyer said the task force did not recommend sanctions for violating new discovery rules, except in cases where parties willfully ignored the requirements.

The 20-member task force was co-chaired by Peter Harvey, who served as attorney general of New Jersey and a federal prosecutor. Harvey is a partner at Patterson Belknap Webb & Tyler.

The task force was formed in 2012 by former state bar president Seymour James, who was then attorney-in-charge of criminal practice at the Legal Aid Society of New York State.

In 2009, the Legal Aid Society advocated in a report that CPL §240 should be repealed and replaced with a new discovery law. Like the state bar task force, the Legal Aid Society recommended the prosecution automatically turn over the names of witnesses and others with "relevant" information (NYLJ, April 15, 2009).

John Schoeffel, a staff attorney in the Legal Aid Society's special litigation unit, wrote the 2009 report and was a member of the state bar task force who concurred with the report approved Jan. 30.