Senate Bill S43

                                
 
BILL NUMBER: S43

SPONSOR: HOYLMAN
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to discovery

 
PURPOSE:

To strengthen the ability of a court to order disclosure by the prose-
cution of relevant property that is shown to be material to preparation
of the defense, whether or not the prosecution intends to introduce the
property at trial. Removing the latter restriction will effectuate the
transmission of information potentially favorable to the defense, a
constitutional duty often frustrated by inconsistent interpretations of
the obligation, non-compliance, or belated disclosure.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends 240.40 of the criminal procedure law to
allow a court to order disclosure by the prosecution of relevant proper-
ty that is shown to be material to preparation of the defense, whether
              

or not the prosecution intends to introduce the property at trial.

Section 2 is the effective date.

 
JUSTIFICATION:

The ever-present reality of the criminal justice process is that most of
the information necessary to fair adjudication is in the hands of the
State. One purpose of the discovery law is to disclose to the accused
before trial exculpatory evidence making up the State's case, in order
to prevent unfair surprise. An equally critical component of the discov-
ery process is to provide the accused with material in the hands of the
State, with its superior investigatory resources, that may aid in the
preparation of a defense. This duty to disclose what is loosely referred
to as "exculpatory" evidence had been a constitutional requirement since
Brady v. Maryland, 373 U.S. 83 (1963).

More accurately, the Brady rule encompasses all material "favorable" to
the accused. See People v. Fuentes" 12 MY3d 259, 263 (2009).  "Favora-
ble" is a broad category, including any evidence "inconsistent with a
fundamental aspect of the People's case." People v. Garcia, 46 AD3d 461,
262 (1st Dept. 2007).

The basic flaw in the Brady disclosure process is that it places the
duty to search, for evidentiary material favorable to the defense in the
hands of its adversary. Some prosecutors may take an unduly narrow view
of the Brady obligation, one that, does not encompass impeachment mate-
rial or recognizes only obvious exculpatory evidence. And even the
conscientious prosecutor may not understand how an item might fit within
a defense theory, or lead to evidence favorable to the defense.

The amendment to CPL § 240.40(1)(c) would strengthen the effectuation of
the Brady rule. The current version, with the "which the people intend
to introduce at trial" restriction, serves only the discovery function
of preventing surprise. It does little to aid the preparation of the
defense function. The part of the information in the prosecution's
possession that it selects to introduce at trial will likely not be
favorable to the defense. On the other hand, the material that it choos-
es not to present to the trier of fact is the category where information
favorable to the defense is more likely to be found. For example, the
prosecution may feel that an "inconclusive" scientific test proves noth-
ing, but the defense may interpret it as supporting a reasonable doubt.

By excising the "intend to introduce at the trial" limitation, the
discovery law will effectuate access for the defense to potentially
favorable matter in a manner not dependent on what may be the adver-
sary's narrow, skeptical, or uninformed assessment of its significance.

As the Court of Appeals has emphasized: "We have often repeated that the
best judge of the value of evidence to a defendant's case is 'the
single-minded devotion of counsel for the accused.'" People v.  DaGata,
86 NY2d 40, 45 (1995). DaGata ruled that, "consistent with this State's
philosophy of broad pretrial disclosure," notes related to DNA testing
should have been turned over;, in the hands of the defense, they might
have led to information favorable to its case. Id.

The DaGata court recognized that the prosecution could obtain a protec-
tive order under CPL § 240.50 against inappropriate disclosure.  Id. at
44. More important, the amendment to CPL240.40(1)(c) keeps control of
this area of discovery in the hands of the court, and requires a showing
of materiality and reasonableness. The court is well-situated to make
any reasonable accommodations to the prosecution where problems of priv-
ilege or witness intimidation are shown to exist.

The benefits of more thorough and timely disclosure of material poten-
tially favorable to defense of a case far, outweigh any problems in
ironing out the details of this discovery. The steady cascade of
reversals and wrongful convictions owing to withheld Brady material is a
sign not only of insufficient compliance but of the inefficiency of an
entirely "backward-looking" enforcement process, which offers a cure for
non-disclosure only when egregious errors are revealed in post-convic-
tion review. Giving the court the authority to order more targeted
disclosure in the pre-trial setting can only enhance the fairness and
reliability of the administration of justice.

 
LEGISLATIVE HISTORY:

S.6847A of 2017-2018 (Hoylman): Died in Rules (2017)/Died in Codes
(2018)
A.3056 of 2017-2018 (Lentol): Passed in Assembly (2017)/Died in 3rd
Reading (2018)
A.8080 of 2011-12(Lentol)
A.3801 of 2013-14(Lentol)
A.2878 of 2015-16(Lentol)
A.3056 of 2017-18(Lentol)

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.