Discovery reform repeals and replaces New York State’s existing discovery law, dubbed the “blindfold” law, with a new statute: Article 245 of the Criminal

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Discovery Reform in New York Page 1 Discovery Reform in New York Major Legislative Provisions On April 1, 2019, New Yo rk State passed sweeping criminal justice reform legislation , including discovery reform, requiring prosecutors to disclose their evidence to the defense earlier in case proceeding s . This document summarizes the new discovery statute , which goes into effect on January 1, 2020. Discovery reform repeals and replaces N existing discovery law, with a new statute : Article 245 of the Criminal Procedure Law. The reform requires significantly greater openness and establishes specific timeframes for the sharing of evidence between the prosecution and defense during the pretrial period . With discovery reform, New York joins 46 other states that have adopted comparable open discovery laws . 1 By imposing accelerated discovery timelines, the reform may shrink case processing times, resulting in sh o rter jail stays for defendants held in pretrial detention. By facilitating a s ability to prepare a defense, the reform m ay also result in fewer prison or jail sentences. Automatic Discovery and the Presumption of Opennes s iscovery reform to obtain and review evidence . Specifically, t he prosecution must , l materials relating to the subject matter of the case, whe never the prosecutor or someone is in possessio n, custody , or control of such items. The statute also creates a presumption of openness, directing judges to favor disclosing information when applying the statute to specific rulings in pending cases. By contrast , the current discovery statute (C.P.L. Article 240) requires prosecutors to fulfill discovery obligations only after the defense attorney ha s made a demand in writing. In addition, the current statute does not establish early timeframes for when demanded materials should be turned over. criminal records, and pending criminal actions, the statute does not require prosecutors to turn over information until the com mencement of trial opportunity to properly investigate and respond to such information.

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Discovery Reform in New York Page 2 Discovery Requirements for the Prosecution Discover able Materials The new statute enumerat es 21 different kinds of materials that prosecutors must turn over to the defense. 2 Several of the items were not previously listed in the old statute. Most notably, the prosecution will now be required to turn over the following : N ames and adequate contact information for any person who has relevant information regardi ng the case. N ame and work affiliation of all police and other law enforcement personnel w ho ha ve evidence or relevant information regarding the case. S tatement s by any person with relevant info rmation , regardle ss of whether the person will be called as a witness at trial and including witnesses to be called in a ny pretrial hearing. Electronic recordings, including 911 calls, regardless of whether the prosecutor intends to use them at trial , with a limitation if the electronic recording exceeds 10 hours . 3 Materials favorable to the defense , also known as materials , 4 a discovery obligation that exists under current law, is now specifically listed in the new statute. These materials include information that exculpate s the defendant, mitigate s the s a defense, impeach es a prosecution witness, or raises questions as to the identification of the defenda nt as a perpetrator. ( information must be shared expeditiously upon receipt , if obtained sooner than the 15 – day timeline requirement referenced below . ) R ewards, promises, or inducements offered to any prosecution witnesses. Search warrants and all related materials , including the warrant application , supporting affidavit, a police inventory of all property seized, and a transcript of all testimony or other oral communications. Electronically created or stored information if obtained from the defendant or a source other than the defendant, but which is related to the subject matter of the case. Discover y Time frame The new timeframe for disclosure generally requires the prosecution to turn over all no later than 15 days after arraignment .

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Discovery Reform in New York Page 3 A n additional 30 days is permitted if the materials are voluminous or, if after making earnest possession, and the prosecutor is not reasonably able to obtain the materials. In effect , the prosecutor has 45 days to turn over initial discovery , with a few exceptions for specific kinds of discovery. 5 Regarding the initial 15 – day deadline, t he prosecutor is obligated to make a good faith effort (1) to find out whether the requested materials exist , and (2) to obtain all discoverable materials listed in the statute, where they do exist, including items that may not yet be in the custody, possession or contro l. Continued Duty to Disclose While the discovery reform seeks to limit the amount of time it takes to complete discovery, it also maintains a continued duty to disclose . This duty requir es that both part ies turn over information that they later learn exists and that would have been discoverable initially . Additional Timeline Requirements The two critical pretrial activities of grand jury proceedings and plea offers are subject to special timeline requirements. Grand Jury Proceedings . The period after criminal court arraignment (the first court date) but pr eceding indictment by a grand jury is often the most pivotal point in felony cases, where the defendant and the defense attorney are required to make decisions regarding whether to plead guilty or testify in the grand jury with little to no information. Discovery reform seek s to mitigate the number of unknowns. W hen the defendant wishes to exercise the right to testify, the prosecution must provide to the defense any statements made to law enforcement by the defendant or a co – defendant. These statements m ust be shared 48 hours grand jury testimony , regardless of the above – noted 15 – day general deadline (i.e., earlier than 15 days if the grand jury hears the case earlier). Plea Offers . Defendants will no longer be required to consider a plea offer without knowledge of the evidence against them. If the prosecution makes a n offer during the pre – indictment phase of a felony case, prosecutors are required to turn over discoverable materials at least three calendar days prior to the expiration of the offer. During other stages, discoverable materials must be shared seven calendar days prior to the expiration of any plea offer. The right to discovery before pleading guilty can be waived by the defendant , but the prosecution cann ot make such a waiver a condition of the plea. These provisions put an end to the pressure defendants sometimes face of either accepting a plea offer without full knowledge of the evidence y is complete.

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Discovery Reform in New York Page 4 during plea bargaining, the court must, at a minimum, preclud e the use of the non – disclosed materials at trial if : 1) T he defendant alleges a violation of the discovery law, and 2) T decision to refuse the plea, and 3) T he prosecution refuses to reinstate the plea. Coordination with Law Enforcement For purposes of the statute , any materials that are in the possession of law enforcement are deemed to be in the possession of the prosecutor. Thus, any delays in transmitting evidence from law enforcement to s for failing to turn over information to the defense . Moreover, and the prosecuting agency, particularly regarding information that is exculpatory or otherwise favorable to the (e.g. , 911 call, police radio transmittals, body camera recordings) is created relating to an investigation or prosecution, the arresting officer or lead detective must make copies of such recor dings and notify the prosecution of its existence in writing, upon the filing of an accusatory instrument (i.e., a charging document presented at the initial criminal court or lower court arraignment.) Upon learning of recording s , the prosecution must ensure that they are preserved . Further, w hen the defense makes a timely request for a specific 911 call, the prosecution must take reasonable steps to ensure that it is preserved. If law enforcement does not make a recording available, the defendant can m ove for and the court must order a remedy or sanction. Finally, state and local law enforcement must make all relevant records and files available to the prosecution. If the p at trial not charged in the indictment or information (i.e. a Molineux application), the prosecution must provide notice as soon as practicable and no later than 15 days prior to the first scheduled trial date . The prosecutor must also provide a list to the defendant of what acts they intend to present and whether the prosecution will be using evidence of these acts to challenge the credibility (impeachment) of the defendant or as substantive proof at trial.

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Discovery Reform in New York Page 6 ithout the presence of opposing counsel) prior to any judicial order for discretionary discovery but must show good cause for the non – disclosure . Procedures for Limiting Disclosure : Protective Orders P arties may at times have valid reasons for withhold ing information, generally related to the safety of witnesses if their names, contact information, or involvement in a case w ere revealed. While the current statute allow s for protective orders, t he new statute makes more detailed allowances. W h en the prosecution or defense does not wish to disclose specific material or evidence, they must establish good cause for the non – discl osure ; notify the opposing party in writing that information is being with h eld ; and apply for a protective order. The co u rt may then order that the disco v ery or inspection o f specific material or informa t i on . Alternative ly , a court may order that the viewing and cannot be shared with the defe ndant ; or the court may limit access to the material, ordering that it can only be view ed at a specific location, (e.g. or police station) . Hearing Requirement : When a party seek s a protective order and the other opposes it, the court must conduct a hearing within three business days of the request for a protective order. A decis i on to disclose or limit disclosure must be made by the court expeditio u sly. Good Cause : When esta blishing the need for a protective order, the party moving for it must sho w that there is good cause excep tion. Good cause can arise under specific circumstances, mostly relating to the safety of and risk to a witness and the preservation rights . Where good cause is established, the time periods for turning over discovery can be modified. Appellate Review : If a court grants or denies a protective order specifically pertaining to the disclosure of the name, address, contact information and statements of a witness, the party who received the adverse decision may appeal to the intermediate appellate court. The party seeking appellate review must file an order to show cause within two days of the adverse ruling. Sanctions: Any party that violates a protective order by sharing protected information can be charged with criminal contempt.

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Discovery Reform in New York Page 7 Ensuring Compliance with Discovery Reforms Certificates of Compliance complying with au prosecutor exercised due diligence and made reasonable inquiry into the existence of relevant materials, and that the prosecutor has turned over all know n discoverable materials. The certificate must also list all the materials that have been turned over. A supplemental certificate of compliance must be filed if prosecutors la ter share additional discovery , pursuant to a continued duty to disclose new ly learned information. This supplemental certificate o f compliance must be filed before trial and should identify the additional information and list the material s provided. Compliance and Trial Readiness The prosecution cannot be deemed ready for trial, orally or in writing, without having fulfilled the discovery obligation and filed a certificate of compliance. The clear intent of the legislature is to prevent the prosecution from submitting statements of readiness, orally or in writing, while discovery remains incomplete. Limiting Litiga tion To ensure compliance and limit litigation over discovery disputes , the court may : Order that the p arties discuss a disclosure issue to reach an agreement regarding the requested discovery; Require a discovery complia n ce conference; R equire the pros ecution to file an additional certificate of compl ianc e with specific reference to any exculpatory or otherwise favorable information that has been provided to the defense; or Order a ny other measure required to ensure that the goals of discovery reform are met. Remedies and Sanctions The discovery reform provides sanctions that already exist in the status quo but also offer s additional guidance for when and how they should be used. The court must impose a remedy or sanction : ( 1) when information or ma terials are turned over lat e, if the party receiving the

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Discovery Reform in New York Page 8 materials can show that it was prejudiced (i.e. the party was materially affected by the late disclosure) ; and ( 2) when the materials have been lost or destroyed if the pa rty entitled to the materials can show that the materials contained information regarding a contested issue. When materials have been turned over late, even without any showing of prejudice , the court must grant reasonable time to the party receiving the materials to prepare and respon d to the new information. If the materials are lost or destroyed the sanction should be proportionate to the potential ways that the material could have helped t he party entitled to disclosure. Delineated Remedies and Sanctions In response to a failure to comply with discovery obligation s , the court can use one of the following remedies and sanctions: Issue an additional order for discovery (e.g., where the additional order specifies exactly what must be disclosed and gives a timeframe for complying) . G rant a continuance (e.g., to provide more time to the party receiving late discovery to review the information) . O rder that a hearing is re – o pened or a witness re – called . Instruct the jury to make an adverse inference against the noncompliant party in the case. P timony . Admit or exclude other evidence (i.e., with the effect of compensating the party that did not receive discovery in compliance with the statute). O rde r a mistrial . O rder a dismissal of all or some of the charges. The court has the discretion to fashion a remedy or sanction that is just , under the circumst a n ces. The statute makes clear , however, that any sancti on imposed on the defendant canno will not permit the court to order a new pre trial hearing, or set aside a conviction, or reverse, modify or vacate a conviction. The defendant must show that there was a reasonable possibility that the non –

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Discovery Reform in New York Page 9 proceeding. right to re – open a pretrial hearing when the statement is discovered prior to the end of trial remains intact. Other Notable Discovery Law Provisions Order to P reserve E vidence Any party can file a motion with the court requesting an order mandating that an individual, entity or agency in possession of relevant items preserve them for a specific amount of time. The court must respond expeditiously and may later modify or vacate the order if the preservation of the evidence causes significant hardship to the entity, agency or individual. Order for A ccess to Premises The defendant may request a court order permitting access to a crime scene or other pre mises related to the case. The court can also order that the premises remain unchanged. In considering whether to grant such a motion, the court must consider several factors: 1) Need for access, including the risk that the defendant will be deprived of usefu l evidence . 2) The position of the individual or entity who owns or possesses the premises . 3) The privacy interest and perceived hardship to the individual or entity allowing access . 4) The position of the prosecution regarding the request for access. The court may deny access if the probative value can be obtained through other means. Further, if access is grant ed , the individual or entity who possesses or owns the property may request that law enforcement be present while granting the access. For correspondence, please contact Krystal Rodriguez ( ) at the Center for Court Innovation.

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