As part of the latest Budget Deal, the New York Legislature recently (2019) passed historic, sweeping new discovery rules for criminal cases that vastly improve access by the defense to information about the Government’s case. These historic changes move New York from one of the states with the worst, most restrictive discovery provisions, to one of the more open states.
The debate over discovery in criminal cases is not something that typically inspires great interest among most people. Being charged with crimes is something that people often think only happens to “other people”. Besides, to the extent that people do think about it, the common notion that “criminals have all the rights” leads people to mistakenly believe that when you are charged with a crime, you are entitled to immediate disclosure of all the evidence against you.
The truth, in New York State, however, has been exactly the opposite. New York State’s current discovery rules in criminal cases, in place until December 31, 2019, are absurd, exactly the opposite of what most people would imagine given their notions of how the criminal justice works in America in general.
The best way to understand discovery as it currently exists in New York State is by way of an example. This example is not an exceptional circumstance. Telling this story would inspire little more than, “yea, so?” reaction from an experienced criminal defense lawyer in New York who, therefore, knows the deal. For instance, presume I was sent out for trial on an extremely serious kidnapping charge, where my client was facing 25 years upon conviction, and the Judge made no secret of the fact that he/she was intending to give my client most, if not all of those 25 years if my client were convicted. Presume on the morning of the day we were scheduled to begin jury selection, I walked into the courtroom to find about a two inch thick pile of papers on defense counsel’s table. That pile of paperwork contained all of the critical police reports and grand jury testimony of witnesses, and until that moment I had not been allowed to see any of it. I had no idea what it contained. And yet, presume I was expected to start picking a jury in about ten minutes. And lest you think that this seems a little unfair, you should understand that in giving me this paperwork just prior to jury selection, the Government was actually doing me a favor. Under the discovery rules that currently exist in New York, until December 31, 2019, the Government was in fact doing me a favor. I was not actually entitled to those reports and prior testimony until the trial was already underway and the witnesses had testified. The next 25 years of my client’s life were at stake. By contrast, if the Government was simply suing my client for some money (or my client was involved in any civil case) there would be no way that a trial could happen until all discovery methods, including depositions of witnesses, were complete. Under the current discovery rules, more information is required to be disclosed prior to trial in a case involving a lawsuit over money than is required when a person’s freedom is at stake. Go figure.
But the new discovery rules in New York are changing all of that that beginning January 1, 2020. And this isn’t some sort of small, incremental change. This is a historic shift from a preposterously unfair approach, which makes trial by surprise a prime tool of the Government, to an eminently more fair approach that actually provides a person with a notion of the case the Government is bringing against him or her.
But the key elements that make these new changes so historic and meaningful are not so much found in the lists of things that are now discoverable. The key elements to this new legislation are as follows:
- Information is required to be disclosed early in the case without question;
- Information that is required to be disclosed is identified by the Legislature with exacting specificity;
- The Legislation imposes a clear duty on the Government to disclose information with a preference for disclosure when there is doubt about disclosure;
- The Legislation imposes clearly articulated, meaningful penalties on the Government for failure to comply with the new discovery rules.
Information is Required to Be Disclosed Early in the Case Without Question.
As the current ludicrous discovery rules have taught us, even if some items are considered “discoverable” the value of this discovery is meaningless or severely diminished if the information is turned over late in the game, or as is technically allowed in New York State, until January 1, 2020, during the trial itself. Being handed a big pile of paperwork and testimony just prior to trial is really a humiliating slap in the face to the defense counsel, because it creates an atmosphere of rushing to review discovery in the courtroom or late into the night, during trial. Rushing to get through reports and grand jury transcripts inevitably means that you will miss important issues, or fail to grasp the significance of more subtle issues.
In order to get critical information regarding a case, defense counsel can’t rely on the Judiciary to help much. Ultimately, the Judge cannot directly force the Government to do anything different from what the law specifically requires in terms of discovery. If a Judge cares to, a Judge can ask the Government to provide discovery materials prior to trial, but if the Government declines, the Judge has little power other than to allow the defense an adjournment to review discovery from whatever point the Government deems fit to turn it over. And realize that the level of interest Judges have in attempting to nudge the prosecutors into providing discovery “early” (by current law standards, prior to January 1, 2020, early can mean a week or two prior to trial – or about a six months to a year into the case). Since the rules are the rules, Judges don’t actually have a lot of power over it, but in addition to that, you haven’t exactly see lots of Judges taking bold positions on the record regarding discovery issues.
Sometimes, individual prosecutors can be persuaded to provide discovery “early” if you as a defense lawyer don’t mind begging for it. Often, if discovery is provided early, it is provided with the request not to tell anyone, because releasing discovery early can sometimes be against DA office policy.
The new rules end the need for defense lawyers to beg for anything from anyone. After decades of sitting on their hands and “not being able to do anything” Judges have largely been removed from the equation where discovery is concerned. Under the new rules, the defense doesn’t even have to ask for it any longer. In the past, the defense had to file specific requests for all discovery that was (ha- ha) “available”. When the Government refused, the defense filed a motion to compel, and the Judge ruled on it. The new law imposes a duty on the Government to provide available discovery regardless of a specific request for it by the defense.
And that requirement kicks in RIGHT AWAY. Gone are the days of not getting discovery a year later or two weeks before trial by some preposterously weak system called “open file discovery”. Under the new law, massive and significant discovery is required to be turned over, usually within 15 days of commencement of the case.
This is a game changer.
Getting access to significant discovery this early on means that gone are the days of scrambling to look through police reports and testimony as the witness is testifying. Gone are the days of needing to stay up all night reviewing newly turned over discovery in the middle of trial. We will be in an era where defense counsel will actually be able to review police reports and testimony in a civilized manner, digest the information, and seriously consider it. Every defense lawyer has had the experience of somehow getting discovery and then the case is adjourned such that there is time to review paperwork more thoroughly. Every defense lawyer has experienced discovering something in that paperwork that wasn’t immediately obvious when the discovery was first turned over. Every defense lawyer wonders how many important issues were left on the table because of the absurdly late revelation of significant discovery, in cases where no such opportunity to re-review occurred. These problems will now largely be a thing of the past in New York.
Information that is required to be disclosed is identified by the Legislature with exacting specificity.
The new law also is exhaustively specific as to the information that is required to be disclosed by the Government. The new law leaves little to debate about what is required to be disclosed and what the law considers to be available to the Government to disclose to the defense. The Legislature is in this way leaving as little room as possible for the Government to wrap up critical discovery in legal battles where the Court ultimately is asked to decide whether some particular item is “what the legislature intended” to be made discoverable. And given the historic lack of help in this regard provided by the Judiciary in New York, any ambiguity or wiggle room left for the Government would likely be identified and exploited by the Government and approved by the Judiciary. The new discovery rules in New York leave very little wiggle room, and very little ambiguity. The new law includes an entire laundry list of items, identified with meticulous specificity that leaves little room for credible argument. If the Government has any of these items, it must be turned over. Do not pass Go; do not collect $200.
The Legislation imposes a clear duty on the Government to disclose information with a preference for disclosure when there is doubt about disclosure.
The new discovery law forges a concrete duty that it places on the Government to make a “diligent, good faith effort to ascertain the existence of material or information discoverable under the law and to make it available, even when the material is not directly in the prosecution’s possession”. By statute after January 1, 2020, items in the possession of the police are deemed to be in the possession of the prosecution, so Judges cannot allow prosecutors to claim that information in the police department’s control is not in theirs. This duty to disclose is independent of the fact of any defense lawyer’s request. It simply is part of their job to disclose any of the many, specifically identified items.
Further, and most deliciously, the new law creates a “presumption of openness” which specifically advises judges that they are to interpret these new discovery rules “in favor of disclosure”. This suggests that where Courts are presented with ambiguous situations that might be resolved reasonably in favor of disclosure or not, the Legislature demands that judges favor disclosure. And as satisfying as it is to see this clear indication of the Legislature’s intent, it is simultaneously sad that the Legislature needed to do this in order to ensure that its otherwise clear intent is not foiled by Judges who might be wanting to cling to the antiquated notions of giving people accused of crimes nothing in terms of discovery.
And thus, where issues do arise as to what the new discovery rules mean, in places where the Government may attempt to identify vagueness, any Judge ruling on the issue will be forced to rule with this specific and clear notion of a “presumption of openness” in mind.
The Legislation imposes clearly articulated, meaningful penalties on the Government for failure to comply with the new discovery rules.
Although the new rules declaring what is discoverable, and when it is discoverable, are historic, these new rules could easily be nearly worthless unless the Legislature gave these rules teeth that operate independently of Judges’ discretion. And this is exactly what the new rules do, in a couple of general ways.
Failure to Comply with Discovery = Loss of Speedy Trial Time.
The Government is not allowed to announce “ready for trial” until it has complied with the discovery rules. This is significant in misdemeanor cases because until the Government announces “ready for trial” the 90 day speedy trial clock is ticking. Therefore, a failure to turn over discovery in compliance with the new law will mean that the Government risks having the case dismissed. In felony cases, a longer speedy trial clock ticks by (six months) but the principle is the same.
Second, the Government must comply with discovery at least three days prior to the expiration of any offer to settle a case where the settlement involves a plea to a crime.
Another game changer.
This requirement is a game changer, especially in terms of felony cases, especially in Queens and Columbia Counties where the DA’s Office imposes a “plea policy” that requires that people who want to settle felony cases must do so before they are indicted. This plea policy, meant to streamline the system and encourage people who are ultimately going to plead guilty to do it earlier rather than later, has the effect of forcing those engaged in plea bargaining of felony cases to make decisions about settling cases without any discovery at all – no police reports, nothing. Under the current system, until January 1, 2020, there is virtually no discovery available prior to indictment.
That system will end.
Under the new rules, if a proposed settlement involves a plea to a misdemeanor or a felony, any offer will need to be available for at least three days after full disclosure of all discovery. This means all police reports, names and contact information for all witnesses, physical evidence, video evidence, audio evidence — everything. No more will defendants be forced to make critical decisions about their cases without an understanding of the Government’s case. And further, the Legislature sadly needed to anticipate that the Government would attempt to make waiving this requirement a condition of negotiations. Therefore, the
Legislature made it illegal for the Government to require a defendant to waive this right to discovery pre-plea.
Failure of the Government to comply with the pre-plea rules has specific sanctions, including the withdrawal of the plea and the exclusion of any evidence from trial that should have been the subject of pre-plea disclosure.
A Major Shift in the Practice of Criminal Defense.
These new discovery rules, complete with specific and severe consequences to the Government on failure to comply, will significantly change the practice of criminal defense in New York State, for the better. People accused of crimes will actually be able to understand the nature of the case against them, prior to trial, and they will be able to make intelligent choices about how or whether even to proceed with the case. Being a criminal defense lawyer will significantly lose an element of being required to fly by the seat of your pants. The term “discovery by trial” will largely stop being an inside joke among those of us who practice criminal defense.
BUT ALAS FOR MANY OF THOSE IN PRISON UNDER THE OLD SYSTEM, THE CHANGE DID NOT COME IN TIME!
Welcome to New York. Bienvenue a New York.
### September 1, 2019