New Discovery Procedure in New York Does Not Go Far Enough

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.

The ostensible purpose of the Order is to address the problem of wrongful convictions that result from exculpatory material which is either turned over to defense counsel when it is too late to be useful, or not turned over at all.  The New York State Bar Association has noted that withholding such material is among the leading causes of wrongful convictions.  As a result of this Order, district attorneys now bear the burden of reviewing their files for this material and producing it in a timely manner, and could be punished if they fail to do so.  The idea seems to be that if a trial judge reminds district attorneys what Brady material is, and then directs them to produce it, there is a greater likelihood that it will actually be turned over in a more timely manner.

The Order was executed against the backdrop of New York’s hopelessly antiquated discovery procedures which have always favored district attorneys.  In some states, prosecutors are required to promptly produce all discovery in each case.  In sharp contrast, New York allows district attorneys to delay providing some forms of discovery until a jury is sworn in.  Further, over the years, district attorneys have always opposed bills that would require them to turn over witness statements early in a case, arguing that it placed witnesses in jeopardy.  Thus, the entire “culture” of discovery in criminal cases in New York has long allowed for production of important material late in the case – often when it was too late for defense counsel to conduct appropriate pre-trial investigations,  prepare meaningful cross-examination, or complete other tasks that are necessary for thorough trial preparation.

It is also noteworthy that while the Order allows for sanctions to be imposed on a district attorney who fails to comply with the new procedures, this will occur only in cases of “willful and deliberate” misconduct, as opposed to mere mistakes.  Thus, the extent to which the Order has any real teeth in it is, at best, questionable.

In a sense, the 30-day window required by the Order improves somewhat on the current situation, but only in a limited and narrow way.  The reality is that defense counsel typically needs more than 30 days to review and analyze discovery material so that it can be utilized effectively as part of meaningful trial preparation and presentation.  A relatively brief 30-day period within which to do this with any discovery material is frequently inadequate.  Rather than entering orders that address relatively discrete issues in ways that may not be truly effective, New York should follow the lead of other states that have revised their criminal discovery rules so as to require prompt turnover of all discovery material at a relatively early stage in any criminal case.

James S. Friedman, Esq., is a criminal defense attorney in New Brunswick, New Jersey.  Mr. Friedman represents defendants in criminal cases in the state and federal courts in New Jersey and New York City.


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