BILL NUMBER:S3870

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to rules of evidence at grand jury hearings

PURPOSE OR GENERAL IDEA OF BILL:

Makes procedural changes to the criminal procedure law to allow
certain evidence to be presented to a grand jury without the need for
calling a live authenticating witness. Instead, a sworn affidavit or
affirmation from a qualified person would be sufficient to allow all
business records, the theft of personal identifying information, and
electronic records and data to be considered as evidence by a grand
jury.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends subdivision 2-a and subparagraph (ii) of paragraph
(a) of subdivision 8 of section 190.30 of the criminal procedure law,
subdivision 2a as amended by chapter 453 of the laws of 1999, and
subparagraph (ii) of paragraph (a) of subdivision 8 as added by
chapter 279 of the laws of 2008, to

Section 2 amends paragraph (g) of subdivision 3 of section 190.30 of
the criminal procedure law, as added by chapter 690 of the laws of
2005, and adds two new paragraphs (h) and (i) to
              

Section 3 establishes that this act shall take effect on the ninetieth
day after it shall have become a law.

JUSTIFICATION:

Business Records: Current law allows certain business records of
financial institutions, telephone companies, and internet service
providers to be admissible to a grand jury when accompanied by a sworn
statement attesting to the authenticity of the records. This bill
would expand existing law to include business records from other types
of industries, including law firms, manufacturing companies, and
technology companies.

Identity Theft Victims: Existing law allows certain crime victims'
testimony to be admitted to a grand jury via affidavit, specifically
those whose testimony is limited to resolving the question of a legal
right or status of the witness or his or her property (e.g. the owner
of a stolen car, the owner of a burglarized home, or the owner of a
credit card). The law does not currently include victims whose
"personal identifying information" or "personal identification number"
have been stolen to submit testimony by affidavit, requiring victims
to testify in person before a grand jury, even if they live in other
cities, states, or countries. This bill would allow identity theft
victims to submit testimony via affidavit.

Electronic Data: Current law allowing the admission of certain
business records via affidavit does not allow for the authentication
of electronic data, such as the contents of e-mails, via affidavit. A
live witness must appear before a grand jury to authenticate "recorded
conversations or images communication thereby." Increasingly,


prosecutors are handling cases involving electronic data, such as
e-mails, test messages, and social media posts that are housed on
servers located around the world. For a live witness to authenticate
such records, prosecutors often have to fly in the witness, and
provide them with food and lodging, merely to authenticate that a
CD-Rom or files provided to prosecutors are indeed the records
produced by the company in response to the legal process. This bill
would close that loophole and allow such electronic records to be
submitted as testimony to a grand jury via affidavit.

The procedural reforms in this bill are consistent with
recommendations made by the District Attorneys Association of the
State of New York's White Collar Crime Task Force in its 2013 report.
The amendments contained in this bill would save significant taxpayer
dollars, eliminate time-consuming requirements on government,
businesses, grand jurors, and identity theft victims, while preserving
defendants' rights to contest the accuracy and authenticity of the
evidence. Doing so would permit prosecutors to investigate more
complex white collar and cybercrime cases, and comport New York State
Law more closely with federal law and the laws of at least 26 other
states.

PRIOR LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

Savings to taxpayers for reimbursements of witnesses' travel, lodging,
and food.

EFFECTIVE DATE:

This act shall take effect on the ninetieth day after it shall have
become a law.