The Legal Aid Society Proposes Criminal Discovery Reform
WEDNESDAY, APRIL 15, 2009

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, but 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.

The Legal Aid Society has a 150-page report and proposal, Criminal Discovery Reform in New York, which sets forth in detail the main arguments in support of criminal discovery reform in New York State. It suggests that New York State repel Criminal procedure Law Article 240 and 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. The Legal Aid Society has distributed the proposal to judges, court administrators and legislators and their staffs for review. It was prepared by John Schoeffel, a staff attorney in the Criminal Practice's Special Litigation Unit.

Download the Proposal for Discovery Reform

 

The New York Law Journal
Legal Aid Seeks to Replace 'Miserly and Outdated' Criminal Discovery
Noeleen G. Walder
04-15-2009

Criticizing "miserly and outdated" disclosure rules governing criminal practice in New York, the Legal Aid Society has advanced a sweeping proposal to overhaul the state's criminal discovery process.

In a 150-page report released last week, the organization advocates the repeal of Criminal Procedure Law Article 240 and suggests new legislation that would "help innocent or over-charged defendants fairly prepare for trial" and "encourage guilty defendants to plead guilty without needless and costly delays."

Read the report.

Defense attorneys have long chafed under discovery procedures that they view as inefficient and overly favorable to the prosecution. However, prosecutors are likely to be skeptical of the proposal, arguing that the liberalization of discovery, if taken too far, would hamper their investigations and jeopardize the safety of witnesses and informants.

Steven Banks, Legal Aid's attorney-in-chief, said in an interview that the report represents a "renewed effort" to tackle the thorny issue of discovery, adding that the group's task was made easier by drawing on other proposals to expand discovery by Assemblyman Joseph Lentol, D-Brooklyn, and the state court system.

Mr. Banks said changes in the "political landscape" - including the new Democrat-controlled Senate and the decision of Manhattan District Attorney Robert M. Morgenthau not to seek re-election, coupled with the New York State Bar Association's focus on wrongful convictions (NYLJ, April 7) - made it a "particularly propitious time" to overhaul "archaic, unsound" discovery practices that lead to court delays and pose a high risk of wrongful conviction.

The report, "Criminal Discovery Reform in New York," which has been shared with lawmakers and judges, calls for prosecutors to automatically make available to defendants much more information than they are required to turn over under the current strictly construed law, provided it is in their "possession, custody or control" or that of persons under their control.

Included are the names of anyone the prosecution knows has relevant evidence to an offense or potential defense; "intended expert opinion evidence"; police and law enforcement reports; and a summary of all pre-identification procedures, including photographs of lineups viewed by an eyewitness.

Prosecutors generally would have 15 days after a defendant's arraignment to comply with discovery obligations.

The proposal also would impose reciprocal, though markedly more modest, automatic disclosure requirements on the defendant. Legal Aid says that requiring both sides to provide what they characterize as "extensive" discovery early in the case makes the proposal "evenhanded."

Under current law, written discovery demands must be exchanged and prosecutors do not have to disclose the identity of prospective witnesses until they testify at a pretrial hearing or trial. Under Criminal Procedure Law §240.20, defendants are entitled to see only certain kinds of information. For example, they have access to portions of police reports, such as those containing statements by a defendant or codefendant.

The statute permits prosecutors to furnish additional information, but disclosure policies vary widely among district attorney's offices.

The report takes particular aim at discovery policies of Mr. Morgenthau's office, which it says has restricted disclosure to the "minimal level of Article 240." But it praises the "open-file" approach favored by Brooklyn District Attorney Charles J. Hynes.

In addition, Legal Aid would dramatically curtail prosecutors' discretion to define what constitutes exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), by obligating them to furnish "all evidence and information which tends to negate" a defendant's guilt or mitigate culpability, or which "tends" to support a potential defense, a motion to suppress evidence on constitutional grounds, or reduce the defendant's punishment.

"It is high time for New York . . . to require prosecutors automatically to disclose all known potentially exculpatory and mitigating information, without further speculation as to whether it would ultimately be 'material' to a finding of guilt," according to the report, which was written by John Schoeffel of Legal Aid's special litigation unit.

Arguing that broad criminal disclosure is "far from radical or untested," the report notes that a leading discovery treatise ranks New York among the 14 states with the most limited discovery.

It is "pretty abysmal" for New York to be in the category of states with the most restrictive discovery, rather than "leading the way . . . on a matter of such importance," Mr. Lentol, who chairs the Codes Committee, said in an interview.

Unlike his legislation, which amounts to a "patchwork attempt to change the law," Legal Aid's proposal to "scrap" Article 240 is "very thoughtful," Mr. Lentol said. "I wish I had thought of it.

'Commendable' Goal

Chief Judge Jonathan Lippman declined to comment on the specifics of Legal Aid's report, but called the general goal of broader, earlier discovery "commendable." It provides better informed pleas and trial preparation and saves time, money and paperwork, Judge Lippman said in an interview.

"And I think it also levels the playing field for indigent defendants who generally" have fewer resources, he noted, adding that the judiciary itself has offered legislation to amend the criminal discovery statute.

While some of Legal Aid's reforms "go beyond" the judiciary's proposal, Lawrence Marks, administrative director of the Office of Court Administration, stressed that both approaches require automatic disclosure and would "streamline" the discovery process.

However, some prosecutors expressed concern that liberalized discovery could hamper investigations and jeopardize the well-being of victims and witnesses.

Leroy Frazer Jr., who serves as Manhattan's executive assistant district attorney, said the office was "willing to examine any proposals to improve on the law," but emphasized that the safety of witnesses and victims must be taken into account when it comes to discovery.

He recalled the 1988 case of Bobby Edmonds, a teenage witness in a murder case who was murdered after a judge ordered that his identity be disclosed at trial.

And while that might have happened over two decades ago, Mr. Frazer said that "witness intimidation is a frequent problem that we deal with every day," adding that the Manhattan district attorney's office would have to review Legal Aid's proposal, to "make sure" it has no "deleterious effects."

He noted that the proposal "goes too far" in some respects, but declined to comment further.

Staten Island District Attorney Daniel M. Donovan Jr., who serves as the president of the New York State District Attorneys Association, also stressed the need to proceed prudently in addressing the "sensitive" issue of discovery.

"As prosecutors, we are cautious about the impact that liberalizing discovery laws would have on prosecutions; for example, as they relate to ongoing investigations and the use of informants," Mr. Donovan wrote in an e-mail.

While it would be "premature" to comment on Legal Aid's proposal until it could be compared with several pending bills in the Legislature "advertised as 'reform' of the discovery rules," Mr. Donovan noted that the association "is always open to dialogue with all of the interested parties on this issue, most especially the Legislature and the governor, to ensure that any changes are the result of informed decision making."

A spokesman for the Brooklyn District Attorney's Office declined to comment on the proposal.

Noeleen.Walder@incisivemedia.com

 

The New York Law Journal
Proposal for Criminal Discovery Reform in New York
Steven Banks, Seymour W. James and John Schoeffel
04-15-2009

People litigating a civil claim in New York state 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 14 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.1

In contrast, large states with big cities that ordinarily are considered 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 to rectify this crucial defect in our criminal justice system.

Those accused of a crime in New York state will ask their lawyer in the days and months before trial (or while they consider a plea bargain) about the prosecution's evidence. But unless they are lucky enough to be charged in one of the few counties where the district attorney has rejected miserly statutory discovery, the defense counsel will be unable to answer inquiries except with generalities.

The lawyer will be unable to help the client assess their options or offer advise on the strength of the prosecution's case. Instead, counsel will describe the sentencing range if the client is convicted of the offenses listed in the bare bones charging document. Then she will hazard qualified generalizations about what evidence might be part of the case. 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 trial2 - she probably cannot assist in weighing the advisability of accepting a guilty plea offer or formulating a trial strategy.

This happens every day in our state courts because New York's criminal discovery rules are 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; 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 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.3 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.4

Instead, New York should join states like Arizona, Illinois and Massachusetts and enact a common sense rule that prosecutors must automatically hand over all known information that tends to mitigate or negate the defendant's guilt.5 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.6

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."7

Committees of experts and practitioners have repeatedly urged New York to revise, modernize, and make more fair New York State's restrictive criminal discovery rules.8 Furthermore, the American Bar Association has long advocated broader and earlier criminal discovery.9 Many comparable large states employ such discovery rules. Florida and New Jersey have employed open and early discovery in criminal cases for decades.10 Other states have replaced their outdated criminal discovery rules with an expanded and liberalized approach, including Arizona, Massachusetts and North Carolina.11 New York should now join this trend.

It is in this context that The Legal Aid Society 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. We have prepared a report and proposal entitled "Criminal Discovery Reform in New York" that includes language for a comprehensive new discovery statute, "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 ongoing 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 approve of such discovery practices and consider them to be efficient and fair.12

Other noteworthy proposals 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.13 A few district attorneys have voluntarily abandoned Article 240's limited and inefficient disclosure requirements, and have successfully practiced forms of "open file" discovery for years.14

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 will be more effectively and coherently accomplished by replacing Article 240's framework with a comprehensive and internally consistent statute, which draws on the best features and language of modern discovery provisions that have worked in other comparable jurisdictions.

Our 150-page report and proposal first sets forth in detail the main arguments in support of criminal discovery reform. It proposes the statutory language and offers provision commentaries for a new Article 245. It surveys the discovery rules of several states that have successfully practiced more fair and more efficient criminal discovery. We urge practitioners, judges, court administrators and legislators to review the proposal at www.legal-aid.org.

The time has come to abandon Article 240. New York can eliminate root and branch the gross unfairness and inefficiencies of current discovery practice by repealing those provisions and enacting our proposed Article 245.

Steven Banks is attorney-in-chief of The Legal Aid Society. Seymour W. James Jr. is the attorney-in-charge of the society's criminal defense practice. John Schoeffel is an attorney with the society's special litigation unit. The report is available at: www.legal-aid.org.

  1. See 5 Wayne R. LaFave et al., Criminal Procedure §20.2(b), n.31 (3d ed. 2008) (emphasis added).
  2. See C.P.L. §240.45(1)(a).
  3. See United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001); accord C.P.L. §240.20(1)(h); People v. Vilardi, 76 N.Y.2d 67, 77 (1990); Kyles v. Whitley, 514 U.S. 419, 434 (1995).
  4. See, e.g., The Justice Project, "Expanded Discovery in Criminal Cases: A Policy Review" (2007), pp. 10-15; Bennett L. Gershman, "Reflections on 'Brady v. Maryland,'" 47 S. Tex. L. Rev. 685, n.18 (2006); www.innocenceproject.org/understand/Government-Misconduct.php.
  5. See, e.g., Ariz. R. Crim. P. 15.1(b)(8); Colo. R. Crim. P. 16 Part I (a)(2); Ill. S. Ct. R. 412 (c); Mass. R. Crim. P. 14(a)(1)(A)(iii); Md. R. 4-263(d)(5), (d)(6); Mich. CR 6.201(B)(1); Minn. R. Crim. P. 9.01 Subd. 1 (6); Mo. R. Crim. P. 25.03(A)(9).
  6. See New York State Rules of Professional Conduct, Rule 3.8(b) (effective April 1, 2009).
  7. See National District Attorneys Association, "National Prosecution Standards" (2d ed. 1991), §§53.2(a), 53.5 and Commentary, pp. 164-65, available at www.ndaa.org/publications/apri/index.html.
  8. See, e.g., "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; Commission on the Future of Indigent Defense Services, "Final Report to the Chief Judge of the State of New York" (2006), p. 24; 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), p. 78; New York County Lawyers' Association, "Discovery in New York Criminal Courts: Survey Report and Recommendations" (2006), p. 2; Report to the New York State Assembly Codes Committee, "Criminal Discovery in New York State: Current Practice and Proposals for Change" (1991).
  9. See "ABA Criminal Justice Section Standards-Discovery," Standards 11-4.1(a) and 11.1.1(a).
  10. See Ariz. R. Crim. P. 15; Cal. Penal Code §1054; Colo. R. Crim. P. 16; Fla. R. C.P. 3.220; Ill. S. Ct. R. 412; Mass. R. Crim. P. 14; Mich. CR 6.201; N.J. CT. R. 3:13-3; N.C. Gen. Stat. §15A; Pa. R. Crim. P. 573.
  11. See Mary Prosser, "Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities," 2006 Wis. L. Rev. 541 (2006); Robert P. Mosteller, "Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery," 15 Geo. Mason L. Rev. 257 (2008); Jenny Roberts, "Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases," 31 Fordham Urb. L. J. 1097 (2004).
  12. See Report to the New York State Assembly Codes Committee, "Criminal Discovery in New York State: Current Practice and Proposals for Change" (1991), pp. 91-92; see also 5 Wayne R. LaFave et al., Criminal Procedure §20.1(c) (3d ed. 2008) ("When the ABA moved to its open file discovery proposal, it did so on the ground that state experience with broad discovery provisions had shown that the protective order alone, without any limitations on categories of discoverable materials, was adequate to guard against misuse. Jurisdictions with liberal discovery provisions had not shown any ill effects stemming from perjury or intimidation. They had not experienced a higher acquittal rate, nor a higher rate of prosecutions for perjury or attempts to tamper with witnesses").
  13. See New York State Assembly Bill A01119A (2008); "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), pp. 3-32, 39-45, 122-23, 138-45, 297-98.
  14. See New York County Lawyers' Association, "Discovery in New York Criminal Courts: Survey Report and Recommendations" (2006), p. 2; 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. 81-83, 146-47