Discovery rules in criminal cases can vary greatly between jurisdictions. New Jersey has some of the most liberal discovery rules in the nation. It is common for discovery to be produced well before an indictment. Further, under current rules, all discovery must ordinarily be produced at or just prior to indictment. This relatively early discovery production enables defense counsel to quickly come up to speed on the case, identify witnesses, perform any necessary investigations, and identify any areas where expert testimony may be required.
In sharp contrast, prosecutors in some other jurisdictions are not required to produce discovery until relatively late in the proceedings, with the result that important discovery which could impact significantly upon a defense case may not arrive until the eve of trial. New York recently took a very small step toward addressing the problems and issues that result from eleventh-hour discovery production.
New York State’s Chief Judge recently issued an Order requiring district attorneys to review their files for Brady material and produce it at least 30 days before major trials. The Order takes effect on January 1. Brady material gets its name from the landmark 1963 United States Supreme Court decision of Brady v. Maryland, and includes exculpatory material and/or material that could be construed as favorable to the defendant. Continue reading