S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5511

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 22, 2011
                               ___________

Introduced by M. of A. TOWNS, STEVENSON -- read once and referred to the
  Committee on Judiciary

AN  ACT  to amend the county law, in relation to establishing guidelines
  of professional conduct for activities by district attorneys

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative findings.   The legislature hereby finds that
district attorneys and other  public  prosecutors,  as  public  officers
charged with overseeing that justice is done, owe a duty of fair dealing
to those accused and candor to the courts. This act seeks to ensure that
New  York state's district attorneys and other public prosecutors comply
with these fundamental duties by establishing a minimum code of  conduct
to  guide  their behavior in the performance of their official responsi-
bilities.
  The legislature also recognizes that the state and  its  citizens  are
served  not  only when the guilty are convicted but when criminal trials
are fair and that our system of the administration  of  justice  suffers
when  any  accused is treated unfairly. This act seeks to guarantee that
district attorneys and other public prosecutors make  timely  disclosure
to  the defense of all evidence required to be disclosed pursuant to the
laws and the constitution of the state of New York and the  constitution
of the United States.
  The  legislature  further  finds  that  collaboration between district
attorneys and the press as to information affecting the  fairness  of  a
criminal  proceeding  is  not  only subject to regulation, but is highly
censurable and worthy of penalties therefor. This act seeks to achieve a
fair balance between a district attorney's or other public  prosecutor's
right  of free speech and society's interest in protecting the integrity
of the criminal proceedings and thereby guaranteeing a fair  and  impar-
tial trial. It is the intent of this legislature to insure that informa-
tion and statements made by district attorneys and other public prosecu-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05887-01-1
              

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tors  is  not  to solicit coverage for their cause by employing the news
media solely with a view toward  gaining  some  benefit  or  influencing
public  opinions  rather  than fulfilling the prosecutor's obligation to
seek  justice. The purpose of this act is to insure, to the extent prac-
ticable, the fair and orderly judicial administration in the conduct  of
criminal proceedings.
  S  2. The county law is amended by adding a new section 708 to read as
follows:
  S 708. GUIDELINES OF PROFESSIONAL CONDUCT FOR ACTIVITIES  BY  DISTRICT
ATTORNEYS  AND  OTHER PUBLIC PROSECUTORS. 1. A.  NO DISTRICT ATTORNEY OR
OTHER PUBLIC PROSECUTOR  SHALL  MAKE  AN  EXTRAJUDICIAL  STATEMENT  WITH
RESPECT  TO  A CRIMINAL PROCEEDING THAT A REASONABLE PERSON WOULD EXPECT
TO BE DISSEMINATED BY MEANS OF PUBLIC  COMMUNICATION  IF  SUCH  DISTRICT
ATTORNEY  OR  OTHER  PUBLIC  PROSECUTOR  KNOWS OR REASONABLY SHOULD HAVE
KNOWN THAT SUCH STATEMENT WILL HAVE A SUBSTANTIAL  LIKELIHOOD  OF  MATE-
RIALLY PREJUDICING A CRIMINAL PROCEEDING OR THAT SUCH STATEMENT PRESENTS
AN  IMMINENT AND SUBSTANTIAL HARM TO THE FAIRNESS OF THE CRIMINAL PROSE-
CUTION OR INTERFERES WITH A FAIR TRIAL OR SUCH STATEMENT WILL  HARM  THE
REPUTATION  OF THE ACCUSED IN THE EVENT THAT THE ACCUSED IS SUBSEQUENTLY
NOT FOUND GUILTY.
  B. AN EXTRAJUDICIAL STATEMENT ORDINARILY IS LIKELY TO PREJUDICE  MATE-
RIALLY A CRIMINAL PROCEEDING WHEN THE STATEMENT RELATES TO:
  (I)  THE  CHARACTER,  CREDIBILITY,  REPUTATION OR CRIMINAL RECORD OF A
SUSPECT OR WITNESS IN A CRIMINAL INVESTIGATION.
  (II) THE IDENTITY OF A WITNESS OR THE EXPECTED TESTIMONY OF A  WITNESS
IN A CRIMINAL PROCEEDING.
  (III) THE POSSIBILITY OF A PLEA OF GUILTY TO THE OFFENSE OR THE EXIST-
ENCE  OR  CONTENTS OF ANY CONFESSION, ADMISSION, OR STATEMENT GIVEN BY A
DEFENDANT OR SUSPECT, OR THAT PERSON'S REFUSAL  OR  FAILURE  TO  MAKE  A
STATEMENT.
  (IV)  THE  PERFORMANCE  OR  RESULTS OF ANY EXAMINATION OR TEST, OR THE
REFUSAL OR FAILURE OF A PERSON TO SUBMIT TO AN EXAMINATION OR  TEST,  OR
THE IDENTITY OR NATURE OF PHYSICAL EVIDENCE EXPECTED TO BE PRESENTED.
  (V) ANY OPINION AS TO THE GUILT OR INNOCENCE OF A DEFENDANT.
  (VI)  INFORMATION  THE  DISTRICT  ATTORNEY  OR OTHER PUBLIC PROSECUTOR
KNOWS OR REASONABLY SHOULD HAVE KNOWN IS LIKELY TO  BE  INADMISSIBLE  AS
EVIDENCE  IN A TRIAL AND WOULD IF DISCLOSED CREATE A SUBSTANTIAL RISK OF
PREJUDICING AN IMPARTIAL TRIAL.
  C. AN EXTRAJUDICIAL STATEMENT IS NOT LIKELY TO PREJUDICE MATERIALLY  A
CRIMINAL  PROCEEDING  WHEN  MADE  WITHOUT  ELABORATION  AND CONCERNS THE
FOLLOWING:
  (I) THE INFORMATION CONTAINED IN A PUBLIC RECORD.
  (II) THAT AN INVESTIGATION OF THE MATTER IS IN PROGRESS.
  (III) THE SCHEDULING OR RESULT OF ANY STEP IN THE PROCEEDING.
  (IV) A REQUEST FOR ASSISTANCE IN OBTAINING  EVIDENCE  AND  INFORMATION
NECESSARY TO THE PROCEEDING.
  (V)  A  WARNING OF DANGER CONCERNING THE BEHAVIOR OF A PERSON INVOLVED
WHEN THERE IS A REASON TO BELIEVE THAT THERE EXISTS  THE  LIKELIHOOD  OF
SUBSTANTIAL HARM TO AN INDIVIDUAL OR TO THE PUBLIC INTEREST.
  (VI) THE IDENTITY, AGE, RESIDENCE, OCCUPATION AND FAMILY STATUS OF THE
ACCUSED.
  (VII)  IF  THE ACCUSED HAS NOT BEEN APPREHENDED, INFORMATION NECESSARY
TO AID IN APPREHENSION OF THAT PERSON.
  (VIII) THE FACT, TIME AND PLACE OF ARREST, RESISTANCE, PURSUIT, USE OF
WEAPONS, AND A DESCRIPTION OF PHYSICAL EVIDENCE SEIZED,  OTHER  THAN  AS
CONTAINED ONLY IN A CONFESSION, ADMISSION OR STATEMENT.

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  (IX)  THE IDENTITY OF INVESTIGATING AND ARRESTING OFFICERS OR AGENCIES
AND THE LENGTH OF THE INVESTIGATION.
  2.  EVERY  DISTRICT  ATTORNEY  AND  OTHER PUBLIC PROSECUTOR SHALL MAKE
TIMELY DISCLOSURE TO THE DEFENSE OF ALL EVIDENCE OF INFORMATION KNOWN TO
THE PROSECUTOR THAT TENDS TO NEGATE THE GUILT OF THE  ACCUSED  OR  MITI-
GATES THE OFFENSE AND EXERCISE REASONABLE CARE TO PREVENT INVESTIGATORS,
LAW ENFORCEMENT PERSONNEL, EMPLOYEES OR OTHER PERSONS ASSISTING OR ASSO-
CIATED WITH THE DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR IN A CRIMI-
NAL  PROCEEDING  FROM  MAKING  AN  EXTRAJUDICIAL STATEMENT PROHIBITED IN
SUBDIVISION ONE OF THIS SECTION.
  3. IT IS THE RESPONSIBILITY  OF  EVERY  DISTRICT  ATTORNEY  AND  OTHER
PUBLIC PROSECUTOR TO SEEK JUSTICE, NOT MERELY TO CONVICT.
  A. THIS SPECIAL DUTY EXISTS BECAUSE:
  (I)  THE  PROSECUTOR REPRESENTS THE SOVEREIGN AND THEREFORE SHOULD USE
RESTRAINT IN THE DISCRETIONARY EXERCISE OF GOVERNMENTAL POWERS.
  (II) THE PROSECUTOR IS MORE THAN AN ADVOCATE BUT ALSO MAKES  DECISIONS
NORMALLY  MADE  BY  AN  INDIVIDUAL CLIENT AND THOSE AFFECTING THE PUBLIC
INTEREST SHOULD BE FAIR TO ALL.
  (III) OUR SYSTEM OF CRIMINAL JUSTICE GRANTS THE ACCUSED THE BENEFIT OF
ALL REASONABLE DOUBT.
  (IV) THE PROSECUTOR HAS A  DUTY  TO  MAKE  TIMELY  DISCLOSURE  TO  THE
DEFENSE OF AVAILABLE EVIDENCE, KNOWN TO HIM OR HER, THAT TENDS TO NEGATE
THE  GUILT  OF THE ACCUSED, MITIGATE THE DEGREE OF THE OFFENSE OR REDUCE
THE PUNISHMENT.
  B. TO COMPLY WITH SUCH DUTY OF PROSECUTORIAL CARE:
  (I) THE  PROSECUTOR SHOULD NOT INTENTIONALLY AVOID PURSUIT OF EVIDENCE
MERELY BECAUSE OF THE BELIEF THAT IT WILL DAMAGE THE PROSECUTION'S  CASE
OR AID THE ACCUSED.
  (II)  NO  PROSECUTOR SHALL FABRICATE EVIDENCE OR INTENTIONALLY MISLEAD
AN ACCUSED OR ANY POTENTIAL WITNESS TO A CRIMINAL PROCEEDING.
  4.  THE TEMPORARY STATE COMMISSION OF INVESTIGATION ESTABLISHED PURSU-
ANT TO CHAPTER NINE HUNDRED EIGHTY-NINE OF THE LAWS OF NINETEEN  HUNDRED
FIFTY-EIGHT  SHALL  HAVE THE DUTY AND POWER TO CONDUCT INVESTIGATIONS IN
CONNECTION WITH ANY VIOLATION OF THE GUIDELINES OF PROFESSIONAL  CONDUCT
FOR ACTIVITIES BY DISTRICT ATTORNEYS AND OTHER PUBLIC PROSECUTORS PURSU-
ANT TO THE PROVISIONS OF THIS SECTION.
  5.  A  DISTRICT  ATTORNEY  OR OTHER PUBLIC PROSECUTOR WHO VIOLATES ANY
PROVISION OF THIS SECTION IS GUILTY OF MISCONDUCT, AND  IN  ADDITION  TO
ANY  OTHER  PUNISHMENT  WHICH  MAY  BE  PRESCRIBED  THEREFOR,  HE OR SHE
FORFEITS TO THE PARTY INJURED TREBLE DAMAGES,   TO  BE  RECOVERED  IN  A
CIVIL ACTION.
  6.  A DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR SHALL RESIGN HIS OR
HER OFFICE WHEN HE OR SHE BECOMES A CANDIDATE FOR ANOTHER OFFICE  EITHER
IN  A  PARTY PRIMARY OR IN A GENERAL ELECTION, EXCEPT THAT HE OR SHE MAY
CONTINUE TO HOLD HIS OR HER  POSITION  AS  DISTRICT  ATTORNEY  OR  OTHER
PUBLIC  PROSECUTOR WHILE BEING A CANDIDATE FOR ELECTION TO OR SERVING AS
DELEGATE IN A STATE CONSTITUTIONAL CONVENTION, IF HE OR SHE IS OTHERWISE
PERMITTED BY LAW TO DO SO.
  7. THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL  DISTRICT  ATTOR-
NEYS AND PUBLIC PROSECUTORS INCLUDING THOSE IN COUNTIES WHOLLY CONTAINED
WITHIN A CITY.
  S  3. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.