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 trial 2 – 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.