American Bar Association Standing Committee on Ethics and Professional Responsibility

AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

Formal Opinion 09-454 July 8, 2009 Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense

Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation.

There are various sources of prosecutors’ obligations to disclose evidence and other information to defendants in a criminal prosecution.1 Prosecutors are governed by federal constitutional provisions as interpreted by the U.S. Supreme Court and by other courts of competent jurisdiction. Prosecutors also have discovery obligations established by statute, procedure rules, court rules or court orders, and are subject to discipline for violating these obligations. Prosecutors have a separate disclosure obligation under Rule 3.8(d) of the Model Rules of Professional Conduct, which provides: “The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.” This obligation may overlap with a prosecutor’s other legal obligations. Rule 3.8(d) sometimes has been described as codifying the Supreme Court’s landmark decision in Brady v. Maryland,2 which held that criminal defendants have a due process right to receive favorable information from the prosecution.3 This inaccurate description may lead to the incorrect assumption that the rule requires no more from a prosecutor than compliance with the constitutional and other legal obligations of disclosure, which frequently are discussed by the courts in litigation. Yet despite the importance of prosecutors fully understanding the extent of the separate obligations imposed by Rule 3.8(d), few judicial opinions, or state or local ethics opinions, provide guidance in interpreting the various state analogs to the rule.4 Moreover, although courts in criminal litigation frequently discuss the scope of prosecutors’ legal obligations, they rarely address the scope of the ethics rule.5 Finally, although courts

1 This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2009. The laws, court rules, regulations, rules of professional conduct, and opinions promulgated in individual jurisdictions are controlling. 2 373 U.S. 83 (1963). See State v. York, 632 P.2d 1261, 1267 (Or. 1981) (Tanzer, J., concurring) (observing parenthetically that the predecessor to Rule 3.8(d), DR 7-103(b), “merely codifies” Brady). 3 Brady, 373 U.S. at 87 (“the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”); see also Kyles v. Whitley, 514 U.S. 419, 432 (1995) (“The prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with this Court's decision in Brady v. Maryland.”) 4 See Arizona State Bar, Comm. on Rules of Prof’l Conduct, Op. 2001-03 (2001); Arizona State Bar, Comm. on Rules of Prof’l Conduct, Op. 94-07 (1994); State Bar of Wisconsin, Comm. on Prof’l Ethics, Op. E-86-7 (1986). 5 See, e.g., Mastracchio v. Vose, 2000 WL 303307 *13 (D.R.I. 2000), aff'd, 274 F.3d 590 (1st Cir.2001) (prosecution's failure to disclose nonmaterial information about witness did not violate defendant's Fourteenth Amendment rights, but came "exceedingly close

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sometimes sanction prosecutors for violating disclosure obligations,6 disciplinary authorities rarely proceed against prosecutors in cases that raise interpretive questions under Rule 3.8(d), and therefore disciplinary case law also provides little assistance. The Committee undertakes its exploration by examining the following hypothetical.

A grand jury has charged a defendant in a multi-count indictment based on allegations that the defendant assaulted a woman and stole her purse. The victim and one bystander, both of whom were previously unacquainted with the defendant, identified him in a photo array and then picked him out of a line-up. Before deciding to bring charges, the prosecutor learned from the police that two other eyewitnesses viewed the same line-up but stated that they did not see the perpetrator, and that a confidential informant attributed the assault to someone else. The prosecutor interviewed the other two eyewitnesses and concluded that they did not get a good enough look at the perpetrator to testify reliably. In addition, he interviewed the confidential informant and concluded that he is not credible.

Does Rule 3.8(d) require the prosecutor to disclose to defense counsel that two bystanders failed to identify the defendant and that an informant implicated someone other than the defendant? If so, when must the prosecutor disclose this information? Would the defendant’s consent to the prosecutor’s noncompliance with the ethical duty eliminate the prosecutor’s disclosure obligation?

The Scope of the Pretrial Disclosure Obligation

A threshold question is whether the disclosure obligation under Rule 3.8(d) is more extensive than the constitutional obligation of disclosure. A prosecutor’s constitutional obligation extends only to favorable information that is “material,” i.e., evidence and information likely to lead to an acquittal.7 In the hypothetical, information known to the prosecutor would be favorable to the defense but is not necessarily material under the constitutional case law.8 The following review of the rule’s background and history indicates that Rule 3.8(d) does not implicitly include the materiality limitation recognized in the constitutional case law. The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility. Courts recognize that lawyers who serve as public prosecutors have special obligations as representatives “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern

to violating [Rule 3.8]"). 6 See, e.g., In re Jordan, 913 So. 2d 775, 782 (La. 2005) (prosecutor's failure to disclose witness statement that negated ability to positively identify defendant in lineup violated state Rule 3.8(d)); N.C. State Bar v. Michael B. Nifong, No. 06 DHC 35, Amended Findings of Fact, Conclusions of Law, and Order of Discipline (Disciplinary Hearing Comm’n of N.C. July 24, 2007) (prosecutor withheld critical DNA test results from defense); Office of Disciplinary Counsel v. Wrenn, 790 N.E.2d 1195, 1198 (Ohio 2003) (prosecutor failed to disclose at pretrial hearing results of DNA tests in child sexual abuse case that were favorable to defendant and fact that that victim had changed his story); In re Grant, 541 S.E.2d 540, 540 (S.C. 2001) (prosecutor failed to fully disclose exculpatory material and impeachment evidence regarding statements given by state's key witness in murder prosecution). Cf. Rule 3.8, cmt. [9] (“A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.”) 7 See, e.g., Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Kyles, 514 U.S. at 432-35, United States v. Bagley, 473 U.S. 667, 674-75 (1985). 8 “[Petitioner] must convince us that ‘there is a reasonable probability’ that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.. . . [T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” Strickler, 527 U.S. at 290 (citations omitted); see also United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (“The result of the progression from Brady to Agurs and Bagley is that the nature of the prosecutor’s constitutional duty to disclose has shifted from (a) an evidentiary test of materiality that can be applied rather easily to any item of evidence (would this evidence have some tendency to undermine proof of guilt?) to (b) a result-affecting test that obliges a prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if disclosure had been made.”)

09-454 Formal Opinion 3 impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”9 Similarly, Comment [1] to Model Rule 3.8 states that: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.” In 1908, more than a half-century prior to the Supreme Court’s decision in Brady v. Maryland,10 the ABA Canons of Professional Ethics recognized that the prosecutor’s duty to see that justice is done included an obligation not to suppress facts capable of establishing the innocence of the accused.11 This obligation was carried over into the ABA Model Code of Professional Responsibility, adopted in 1969, and expanded. DR 7-103(B) provided: “A public prosecutor . . . shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor . . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.” The ABA adopted the rule against the background of the Supreme Court’s 1963 decision in Brady v. Maryland, but most understood that the rule did not simply codify existing constitutional law but imposed a more demanding disclosure obligation.12 Over the course of more than 45 years following Brady, the Supreme Court and lower courts issued many decisions regarding the scope of prosecutors’ disclosure obligations under the Due Process Clause. The decisions establish a constitutional minimum but do not purport to preclude jurisdictions from adopting more demanding disclosure obligations by statute, rule of procedure, or rule of professional conduct. The drafters of Rule 3.8(d), in turn, made no attempt to codify the evolving constitutional case law. Rather, the ABA Model Rules, adopted in 1983, carried over DR 7-103(B) into Rule 3.8(d) without substantial modification. The accompanying Comments recognize that the duty of candor established by Rule 3.8(d) arises out of the prosecutor’s obligation “to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence,”13 and most importantly, “that special precautions are taken to prevent . . . the conviction of innocent persons.”14 A prosecutor’s timely disclosure of evidence and information that tends to negate the guilt of the accused or mitigate the offense promotes the public interest in the fair and reliable resolution of criminal prosecutions. The premise of adversarial proceedings is that the truth will emerge when each side presents the testimony, other evidence and arguments most favorable to its position. In criminal proceedings, where the defense ordinarily has limited

9 Berger v. United States, 295 U.S. 78, 88 (1935) (discussing role of U.S. Attorney). References in U.S. judicial decisions to the prosecutor’s obligation to seek justice date back more than 150 years. See, e.g., Rush v. Cavanaugh, 2 Pa. 187, 1845 WL 5210 *2 (Pa. 1845) (the prosecutor "is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for the conviction of an innocent man.") 10 Prior to Brady, prosecutors’ disclosure obligations were well-established in federal proceedings but had not yet been extended under the Due Process Clause to state court proceedings. See, e.g., Jencks v. United States, 353 U.S. 657, 668, n. 13 (1957), citing Canon 5 of the American Bar Association Canons of Professional Ethics (1947), for the proposition that the interest of the United States in a criminal prosecution "is not that it shall win a case, but that justice shall be done;" United States v. Andolschek, 142 F. 2d 503, 506 (2d Cir. 1944) (L. Hand, J.) ("While we must accept it as lawful for a department of the government to suppress documents . . . we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate and whose criminality they will, or may, tend to exculpate.") 11 ABA Canons of Professional Ethics, Canon 5 (1908) (“The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”) 12 See, e.g., OLAVI MARU, ANNOTATED CODE OF PROFESSIONAL RESPONSIBILITY 330 (American Bar Found., 1979) (“a disparity exists between the prosecutor’s disclosure duty as a matter of law and the prosecutor’s duty as a matter of ethics”). For example, Brady required disclosure only upon request from the defense – a limitation that was not incorporated into the language of DR 7- 103(B), see MARU, id. at 330 – and that was eventually eliminated by the Supreme Court itself. Moreover, in United States v. Agurs, 427 U.S. 97 (1976), an opinion post-dating the adoption of DR 7-103(B), the Court held that due process is not violated unless a court finds after the trial that evidence withheld by the prosecutor was material, in the sense that it would have established a reasonable doubt. Experts understood that under DR 7-103(B), a prosecutor could be disciplined for withholding favorable evidence even if the evidence did not appear likely to affect the verdict. MARU, id. 13 Rule 3.8, cmt. [1]. 14 Id.

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access to evidence, the prosecutor’s disclosure of evidence and information favorable to the defense promotes the proper functioning of the adversarial process, thereby reducing the risk of false convictions. Unlike Model Rules that expressly incorporate a legal standard, Rule 3.8(d)15 establishes an independent one. Courts as well as commentators have recognized that the ethical obligation is more demanding than the constitutional obligation.16 The ABA Standards for Criminal Justice likewise acknowledge that prosecutors’ ethical duty of disclosure extends beyond the constitutional obligation.17 In particular, Rule 3.8(d) is more demanding than the constitutional case law,18 in that it requires the disclosure of evidence or information favorable to the defense19 without regard to the anticipated impact of the evidence or information on a trial’s outcome.20 The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.21

15 For example, Rule 3.4(a) makes it unethical for a lawyer to “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value” (emphasis added), Rule 3.4(b) makes it unethical for a lawyer to “offer an inducement to a witness that is prohibited by law” (emphasis added), and Rule 3.4(c) forbids knowingly disobeying “an obligation under the rules of a tribunal . . . .” These provisions incorporate other law as defining the scope of an obligation. Their function is not to establish an independent standard but to enable courts to discipline lawyers who violate certain laws and to remind lawyers of certain legal obligations. If the drafters of the Model Rules had intended only to incorporate other law as the predicate for Rule 3.8(d), that Rule, too, would have provided that lawyers comply with their disclosure obligations under the law. 16 This is particularly true insofar as the constitutional cases, but not the ethics rule, establish an after-the-fact, outcome-determinative “materiality” test. See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) (“Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”), citing inter alia, Rule 3.8(d); Kyles, 514 U.S. at 436 (observing that Brady “requires less of the prosecution than” Rule 3.8(d)); ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT 375 (ABA 2007); 2 GEOFFREY C. HAZARD, JR., & W. WILLIAM HODES, THE LAW OF LAWYERING § 34-6 (3d 2001 & Supp. 2009) (“The professional ethical duty is considerably broader than the constitutional duty announced in Brady v. Maryland . . . and its progeny”); PETER A. JOY & KEVIN C. MCMUNIGAL, DO NO WRONG: ETHICS FOR PROSECUTORS AND DEFENDERS 145 (ABA 2009). 17 The current version provides: “A prosecutor shall not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of all evidence which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.” ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, Standard 3- 3.11(a) (ABA 3d ed. 1993), available at http://www.abanet.org/crimjust/standards/prosecutionfunction.pdf. The accompanying Commentary observes: “This obligation, which is virtually identical to that imposed by ABA model ethics codes, goes beyond the corollary duty imposed upon prosecutors by constitutional law.” Id. at 96. The original version, approved in February 1971, drawing on DR7-103(B) of the Model Code, provided: “It is unprofessional conduct for a prosecutor to fail to make timely disclosure to the defense of the existence of evidence, known to him, supporting the innocence of the defendant. He should disclose evidence which would tend to negate the guilt of the accused or mitigate the degree of the offense or reduce the punishment at the earliest feasible opportunity.” 18 See, e.g., United States v. Jones, 609 F.Supp.2d 113, 118-19 (D. Mass. 2009); United States v. Acosta, 357 F. Supp. 2d 1228, 1232- 33 (D. Nev. 2005). We are aware of only two jurisdictions where courts have determined that prosecutors are not subject to discipline under Rule 3.8(d) for withholding favorable evidence that is not material under the Brady line of cases. See In re Attorney C, 47 P.3d 1167 (Colo. 2002) (en banc) (court deferred to disciplinary board finding that prosecutor did not intentionally withhold evidence); D.C. Rule Prof’l Conduct 3.8, cmt. 1 (“[Rule 3.8] is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes, and court rules of procedure.”) 19 Although this opinion focuses on the duty to disclose evidence and information that tends to negate the guilt of an accused, the principles it sets forth regarding such matters as knowledge and timing apply equally to evidence and information that “mitigates the offense.” Evidence or information mitigates the offense if it tends to show that the defendant’s level of culpability is less serious than charged. For example, evidence that the defendant in a homicide case was provoked by the victim might mitigate the offense by supporting an argument that the defendant is guilty of manslaughter but not murder. 20 Consequently, a court’s determination in post-trial proceedings that evidence withheld by the prosecution was not material is not equivalent to a determination that evidence or information did not have to be disclosed under Rule 3.8(d). See, e.g., U.S. v. Barraza Cazares, 465 F.3d 327, 333-34 (8th Cir. 2006) (finding that drug buyer’s statement that he did not know the defendant, who accompanied seller during the transaction, was favorable to defense but not material). 21 Cf. Cone v. Bell, 129 S. Ct. at 1783 n. 15 (“As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure.”); Kyles, 514 U.S. at 439 (prosecutors should avoid “tacking too close to the wind”). In some jurisdictions, court rules and court orders serve a similar purpose. See, e.g., Local Rules of the U.S. Dist. Court for the Dist. of Mass., Rule 116.2(A)(2) (defining “exculpatory information,” for purposes of the prosecutor’s pretrial disclosure obligations under the Local Rules, to include (among other things) “all information that is material and favorable to the accused because it tends to [c]ast doubt on defendant's guilt as to any essential element in any count in the indictment or information; [c]ast doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief, that might be subject to a motion to suppress or exclude, which would, if allowed, be appealable . . . [or] [c]ast doubt on the credibility or accuracy of any evidence that the government anticipates offering in its case-in-chief.”)

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Under Rule 3.8(d), evidence or information ordinarily will tend to negate the guilt of the accused if it would be relevant or useful to establishing a defense or negating the prosecution’s proof.22 Evidence and information subject to the rule includes both that which tends to exculpate the accused when viewed independently and that which tends to be exculpatory when viewed in light of other evidence or information known to the prosecutor. Further, this ethical duty of disclosure is not limited to admissible “evidence,” such as physical and documentary evidence, and transcripts of favorable testimony; it also requires disclosure of favorable “information.” Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer to admissible testimony or other evidence23 or assist him in other ways, such as in plea negotiations. In determining whether evidence and information will tend to negate the guilt of the accused, the prosecutor must consider not only defenses to the charges that the defendant or defense counsel has expressed an intention to raise but also any other legally cognizable defenses. Nothing in the rule suggests a de minimis exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unreliable. In the hypothetical, supra, where two eyewitnesses said that the defendant was not the assailant and an informant identified someone other than the defendant as the assailant, that information would tend to negate the defendant’s guilt regardless of the strength of the remaining evidence and even if the prosecutor is not personally persuaded that the testimony is reliable or credible. Although the prosecutor may believe that the eye witnesses simply failed to get a good enough look at the assailant to make an accurate identification, the defense might present the witnesses’ testimony and argue why the jury should consider it exculpatory. Similarly, the fact that the informant has prior convictions or is generally regarded as untrustworthy by the police would not excuse the prosecutor from his duty to disclose the informant’s favorable information. The defense might argue to the jury that the testimony establishes reasonable doubt. The rule requires prosecutors to give the defense the opportunity to decide whether the evidence can be put to effective use.

The Knowledge Requirement

Rule 3.8(d) requires disclosure only of evidence and information “known to the prosecutor.” Knowledge means “actual knowledge,” which “may be inferred from [the] circumstances.”24 Although “a lawyer cannot ignore the obvious,”25 Rule 3.8(d) does not establish a duty to undertake an investigation in search of exculpatory evidence. The knowledge requirement thus limits what might otherwise appear to be an obligation substantially more onerous than prosecutors’ legal obligations under other law. Although the rule requires

22 Notably, the disclosure standard endorsed by the National District Attorneys’ Association, like that of Rule 3.8(d), omits the constitutional standard’s materiality limitation. NATIONAL DISTRICT ATTORNEYS’ ASSOCIATION, NATIONAL PROSECUTION STANDARDS § 53.5 (2d ed. 1991) (“The prosecutor should disclose to the defense any material or information within his actual knowledge and within his possession which tends to negate or reduce the guilt of the defendant pertaining to the offense charged.”). The ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, THE PROSECUTION FUNCTION (3d ed. 1992), never has included such a limitation either. 23 For example an anonymous tip that a specific individual other than the defendant committed the crime charged would be inadmissible under hearsay rules but would enable the defense to explore the possible guilt of the alternative suspect. Likewise, disclosure of a favorable out-of-court statement that is not admissible in itself might enable the defense to call the speaker as a witness to present the information in admissible form. As these examples suggest, disclosure must be full enough to enable the defense to conduct an effective investigation. It would not be sufficient to disclose that someone else was implicated without identifying who, or to disclose that a speaker exculpated the defendant without identifying the speaker. 24 Rule 1.0(f). 25 Rule 1.13, cmt. [3], cf. ABA Formal Opinion 95-396 (“[A]ctual knowledge may be inferred from the circumstances. It follows, therefore, that a lawyer may not avoid [knowledge of a fact] simply by closing her eyes to the obvious.”); see also ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, Standard 3-3.11(c) (3d ed. 1993) (“A prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the prosecution’s case or aid the accused.”).

09-454 Formal Opinion 6 prosecutors to disclose known evidence and information that is favorable to the accused,26 it does not require prosecutors to conduct searches or investigations for favorable evidence that may possibly exist but of which they are unaware. For example, prior to a guilty plea, to enable the defendant to make a well- advised plea at the time of arraignment, a prosecutor must disclose known evidence and information that would be relevant or useful to establishing a defense or negating the prosecution’s proof. If the prosecutor has not yet reviewed voluminous files or obtained all police files, however, Rule 3.8 does not require the prosecutor to review or request such files unless the prosecutor actually knows or infers from the circumstances, or it is obvious, that the files contain favorable evidence or information. In the hypothetical, for example, the prosecutor would have to disclose that two eyewitnesses failed to identify the defendant as the assailant and that an informant attributed the assault to someone else, because the prosecutor knew that information from communications with the police. Rule 3.8(d) ordinarily would not require the prosecutor to conduct further inquiry or investigation to discover other evidence or information favorable to the defense unless he was closing his eyes to the existence of such evidence or information.27

The Requirement of Timely Disclosure

In general, for the disclosure of information to be timely, it must be made early enough that the information can be used effectively.28 Because the defense can use favorable evidence and information most fully and effectively the sooner it is received, such evidence or information, once known to the prosecutor, must be disclosed under Rule 3.8(d) as soon as reasonably practical. Evidence and information disclosed under Rule 3.8(d) may be used for various purposes prior to trial, for example, conducting a defense investigation, deciding whether to raise an affirmative defense, or determining defense strategy in general. The obligation of timely disclosure of favorable evidence and information requires disclosure to be made sufficiently in advance of these and similar actions and decisions that the defense can effectively use the evidence and information. Among the most significant purposes for which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the defendant regarding whether to plead guilty.29 Because the defendant’s decision may be strongly influenced by defense counsel’s evaluation of the strength of the prosecution’s case,30 timely disclosure requires the prosecutor to disclose evidence and information covered by Rule 3.8(d) prior to a guilty plea proceeding, which may occur concurrently with the defendant’s arraignment.31 Defendants first decide whether to plead guilty when they are arraigned on criminal charges, and if they plead not guilty initially, they may enter a guilty plea later. Where early disclosure, or disclosure of too much information, may undermine an ongoing investigation or jeopardize a witness, as may be the case when an informant’s identity would be revealed, the prosecutor may seek a protective order.32

26 If the prosecutor knows of the existence of evidence or information relevant to a criminal prosecution, the prosecutor must disclose it if, viewed objectively, it would tend to negate the defendant’s guilt. However, a prosecutor’s erroneous judgment that the evidence was not favorable to the defense should not constitute a violation of the rule if the prosecutor’s judgment was made in good faith. Cf. Rule 3.8, cmt. [9]. 27 Other law may require prosecutors to make efforts to seek and review information not then known to them. Moreover, Rules 1.1 and 1.3 require prosecutors to exercise competence and diligence, which would encompass complying with discovery obligations established by constitutional law, statutes, and court rules, and may require prosecutors to seek evidence and information not then within their knowledge and possession. 28 Compare D.C. Rule Prof’l Conduct 3.8(d) (explicitly requiring that disclosure be made “at a time when use by the defense is reasonably feasible”); North Dakota Rule Prof’l Conduct 3.8(d) (requiring disclosure “at the earliest practical time”); ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, supra note 17 (calling for disclosure “at the earliest feasible opportunity”). 29 See ABA Model Rules of Professional Conduct 1.2(a) and 1.4(b). 30 In some state and local jurisdictions, primarily as a matter of discretion, prosecutors provide “open file” discovery to defense counsel – that is, they provide access to all the documents in their case file including incriminating information – to facilitate the counseling and decision-making process. In North Carolina, there is a statutory requirement of open-file discovery. See N.C. GEN. STAT. § 15A-903 (2007); see generally Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257 (2008). 31 See JOY & MCMUNIGAL, supra note 16 at 145 (“the language of the rule, in particular its requirement of ‘timely disclosure,’ certainly appears to mandate that prosecutors disclose favorable material during plea negotiations, if not sooner”). 32 Rule 3.8, Comment [3].

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Defendant’s Acceptance of Prosecutor’s Nondisclosure

The question may arise whether a defendant’s consent to the prosecutor’s noncompliance with the disclosure obligation under Rule 3.8(d) obviates the prosecutor’s duty to comply.33 For example, may the prosecutor and defendant agree that, as a condition of receiving leniency, the defendant will forgo evidence and information that would otherwise be provided? The answer is “no.” A defendant’s consent does not absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept or rely on the defendant’s consent. In general, a third party may not effectively absolve a lawyer of the duty to comply with his Model Rules obligations; exceptions to this principle are provided only in the Model Rules that specifically authorize particular lawyer conduct conditioned on consent of a client34 or another.35 Rule 3.8(d) is designed not only for the defendant’s protection, but also to promote the public’s interest in the fairness and reliability of the criminal justice system, which requires that defendants be able to make informed decisions. Allowing a prosecutor to avoid compliance based on the defendant’s consent might undermine a defense lawyer’s ability to advise the defendant on whether to plead guilty,36 with the result that some defendants (including perhaps factually innocent defendants) would make improvident decisions. On the other hand, where the prosecution’s purpose in seeking forbearance from the ethical duty of disclosure serves a legitimate and overriding purpose, for example, the prevention of witness tampering, the prosecution may obtain a protective order to limit what must be disclosed.37

The Disclosure Obligation in Connection with Sentencing

The obligation to disclose to the defense and to the tribunal, in connection with sentencing, all unprivileged mitigating information known to the prosecutor differs in several respects from the obligation of disclosure that apply before a guilty plea or trial. First, the nature of the information to be disclosed is different. The duty to disclose mitigating information refers to information that might lead to a more lenient sentence. Such information may be of various kinds, e.g., information that suggests that the defendant’s level of involvement in a conspiracy was less than the charges indicate, or that the defendant committed the offense in response to pressure from a co-defendant or other third party (not as a justification but reducing his moral blameworthiness). Second, the rule requires disclosure to the tribunal as well as to the defense. Mitigating information may already have been put before the court at a trial, but not necessarily when the defendant has pled guilty. When an agency prepares a pre-sentence report prior to sentencing, the prosecutor may provide mitigating information to the relevant agency rather than to the tribunal directly, because that ensures disclosure to the tribunal. Third, disclosure of information that would only mitigate a sentence need not be provided before or during the trial but only, as the rule states, “in connection with sentencing,” i.e., after a guilty plea or

33 It appears to be an unresolved question whether, as a condition of a favorable plea agreement, a prosecutor may require a defendant entirely to waive the right under Brady to receive favorable evidence. In United States v. Ruiz, 536 U.S. 622, 628-32 (2002), the Court held that a plea agreement could require a defendant to forgo the right recognized in Giglio v. United States, 405 U.S. 150 (1972), to evidence that could be used to impeach critical witnesses. The Court reasoned that “[i]t is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant.” 536 U.S. at 630. In any event, even if courts were to hold that the right to favorable evidence may be entirely waived for constitutional purposes, the ethical obligations established by Rule 3.8(d) are not coextensive with the prosecutor’s constitutional duties of disclosure, as already discussed. 34 See, e.g., Rules 1.6(a), 1.7(b)(4), 1.8(a)(3), and 1.9(a). Even then, it is often the case that protections afforded by the ethics rules can be relinquished only up to a point, because the relevant interests are not exclusively those of the party who is willing to forgo the rule’s protection. See, e.g., Rule 1.7(b)(1). 35 See, e.g., Rule 3.8(d) (authorizing prosecutor to withhold favorable evidence and information pursuant to judicial protective order); Rule 4.2 (permitting communications with represented person with consent of that person’s lawyer or pursuant to court order). 36 See Rules 1.2(a) and 1.4(b). 37 The prosecution also might seek an agreement from the defense to return, and maintain the confidentiality of evidence and information it receives.

09-454 Formal Opinion 8 verdict. To be timely, however, disclosure must be made sufficiently in advance of the sentencing for the defense effectively to use it and for the tribunal fully to consider it. Fourth, whereas prior to trial, a protective order of the court would be required for a prosecutor to withhold favorable but privileged information, Rule 3.8(d) expressly permits the prosecutor to withhold privileged information in connection with sentencing.38

The Obligations of Supervisors and Other Prosecutors Who Are Not Personally Responsible for a Criminal Prosecution

Any supervisory lawyer in the prosecutor’s office and those lawyers with managerial responsibility are obligated to ensure that subordinate lawyers comply with all their legal and ethical obligations.39 Thus, supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under their direct supervision meet their ethical obligations of disclosure,40 and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations.41 To promote compliance with Rule 3.8(d) in particular, supervisory lawyers must ensure that subordinate prosecutors are adequately trained regarding this obligation. Internal office procedures must facilitate such compliance. For example, when responsibility for a single criminal case is distributed among a number of different lawyers with different lawyers having responsibility for investigating the matter, presenting the indictment, and trying the case, supervisory lawyers must establish procedures to ensure that the prosecutor responsible for making disclosure obtains evidence and information that must be disclosed. Internal policy might be designed to ensure that files containing documents favorable to the defense are conveyed to the prosecutor providing discovery to the defense, and that favorable information conveyed orally to a prosecutor is memorialized. Otherwise, the risk would be too high that information learned by the prosecutor conducting the investigation or the grand jury presentation would not be conveyed to the prosecutor in subsequent proceedings, eliminating the possibility of its being disclosed. Similarly, procedures must ensure that if a prosecutor obtains evidence in one case that would negate the defendant’s guilt in another case, that prosecutor provides it to the colleague responsible for the other case.42

38 The drafters apparently concluded that the interest in confidentiality protected by an applicable privilege generally outweighs a defendant’s interest in receiving mitigating evidence in connection with a sentencing, but does not generally outweigh a defendant’s interest in receiving favorable evidence or information at the pretrial or trial stage. The privilege exception does not apply, however, when the prosecution must prove particular facts in a sentencing hearing in order to establish the severity of the sentence. This is true in federal criminal cases, for example, when the prosecution must prove aggravating factors in order to justify an enhanced sentence. Such adversarial, fact-finding proceedings are equivalent to a trial, so the duty to disclose favorable evidence and information is fully applicable, without regard to whether the evidence or information is privileged. 39 Rules 5.1(a) and (b). 40 Rule 5.1(b). 41 Rule 5.1(c). See, e.g., In re Myers, 584 S.E.2d 357, 360 (S.C. 2003). 42 In some circumstances, a prosecutor may be subject to sanction for concealing or intentionally failing to disclose evidence or information to the colleague responsible for making disclosure pursuant to Rule 3.8(d). See, e.g., Rule 3.4(a) (lawyer may not unlawfully conceal a document or other material having potential evidentiary value); Rule 8.4(a) (lawyer may not knowingly induce another lawyer to violate Rules of Professional Conduct); Rule 8.4(c) (lawyer may not engage in conduct involving deceit); Rule 8.4(d) (lawyer may not engage in conduct that is prejudicial to the administration of justice).

______

AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY 321 N. Clark Street, Chicago, Illinois 60654-4714 Telephone (312)988-5300 CHAIR: Robert Mundheim, New York, NY ■ Robert A. Creamer, Evanston, IL ■ Edwin L. Felter, Jr., Denver, CO ■ Terrence M. Franklin, Los Angeles, CA ■ Bruce A. Green, New York, NY ■ James M. McCauley, Richmond, VA ■ Susan R. Martyn, Toledo, OH ■ Arden J. Olson, Eugene, OR ■ Mary Robinson, Downers Grove, IL ■ Sylvia E. Stevens, Lake Oswego, OR CENTER FOR PROFESSIONAL RESPONSIBILITY: George A. Kuhlman, Ethics Counsel; Eileen B. Libby, Associate Ethics Counsel ©2009 by the American Bar Association. All rights reserved.

Page 5192 UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

THE HON. CORMAC J. CARNEY, JUDGE PRESIDING

UNITED STATES OF AMERICA, ) ) PLAINTIFF, ) ) VS. ) NO. SACR 08-00139-CJC WILLIAM J. RUEHLE, ) DEFENDANT. ) ______)

REPORTER'S TRANSCRIPT OF PROCEEDINGS

SANTA ANA, CALIFORNIA

TUESDAY,DECEMBER 15, 2009

9:00

MARIA BEESLEY-DELLANEVE, CSR 9132 OFFICIAL FEDERAL REPORTER RONALD REAGAN FEDERAL BUILDING 411 W. 4TH STREET, ROOM 1-053 SANTA ANA, CA 92701 (714) 564-9259

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5193 1 APPEARANCES: 2 FOR THE PLAINTIFF: GEORGE S. CARDONA UNITED STATES ATTORNEY 3 BY: ANDREW STOLPER AND ROBB ADKINS, 4 GREG STAPLES, ASSISTANT UNITED STATES ATTORNEY 5 411 W. 4TH STREET, 8TH FLOOR SANTA ANA, CALIFORNIA 92701 6 7 8 9 10 FOR THE DEFENDANT RUEHLE: SKADDEN ARPS SLATE MEAGHER BY: RICHARD MARMARO, ESQ. 11 AND JACK DICANIO, ESQ. MATTHEW UMHOFER, ESQ. 12 300 SOUTH GRAND AVENUE LOS ANGELES, CALIFORNIA 90071 13 (213)687-5535 14 FOR HENRY SAMUELI: MCDERMOTT WILL & EMERY BY: GORDON GREENBERG, ESQ. 15 2049 CENTURY PARK EAST, SUITE 3800 LOS ANGELES, CALIFORNIA 90067-3218 16 (310) 551-9398 17 FOR HENRY NICHOLAS: WILLIAMS & CONNOLLY LLP 18 BY: BRENDAN SULLIVAN, ESQ. 725 TWELFTH STREET N.W. 19 WASHINGTON D.C. 20005 (202) 434-5460 20 21 FOR DAVID DULL: QUINN EMANUEL URQUHART OLVER & HEDGES BY: JAMES ASPERGER, ESQ. 22 AND SETH ARONSON, ESQ. 865 S. FIGUEROA ST 10TH FL 23 LOS ANGELES, CALIFORNIA 90017 24 25

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5194 1 SANTA ANA, CALIFORNIA; TUESDAY, DECEMBER 15, 2009

2 -OOO-

3 THE CLERK: ITEM NUMBER ONE, SACR 08-139-CJC. UNITED

4 STATES VERSUS WILLIAM J. RUEHLE.

5 COUNSEL, PLEASE STATE YOUR APPEARANCES FOR THE RECORD.

6 MR. ADKINS: GOOD MORNING, YOUR HONOR. ROBB ADKINS,

7 GEORGE CARDONA, ANDREW STOLPER, AND GREG STAPLES ON BEHALF OF THE

8 UNITED STATES.

9 THE COURT: GOOD MORNING, GENTLEMEN.

10 MR. MARMARO: GOOD MORNING, YOUR HONOR. RICHARD MARMARO

11 AND JACK DICANIO FOR MR. RUEHLE, WHO IS PRESENT.

12 THE COURT: GOOD MORNING.

13 AND I THINK WE HAVE SOME OTHER LAWYERS; RIGHT? AND

14 PARTIES?

15 MR. SULLIVAN, I SEE YOU THERE, SIR.

16 MR. SULLIVAN: BRENDAN SULLIVAN OF WILLIAMS AND CONNOLLY

17 FOR DR. HENRY NICHOLAS.

18 MR. ASPERGER: GOOD MORNING, YOUR HONOR. JIM ASPERGER

19 AND SETH ARONSON FOR MR. DULL.

20 MR. GREENBERG: GORDON GREENBERG ON BEHALF OF DR. HENRY

21 SAMUELI, WHO IS PRESENT BEFORE THE COURT.

22 THE COURT: GOOD MORNING TO ALL OF YOU.

23 WHAT I THOUGHT I WOULD DO IS READ INTO THE RECORD MY

24 DECISION, AND THEN I'LL GIVE EVERYONE A NOTICE AND OPPORTUNITY TO

25 SAY WHATEVER THEY WANT TO SAY ON THE RECORD.

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5195 1 I HEARD ALL THE EVIDENCE PRESENT AT MR. RUEHLE'S TRIAL

2 AND AT THE EVIDENTIARY HEARINGS. I NOW KNOW THE ENTIRE STORY OF

3 WHAT HAPPENED. THIS DECISION SUPERSEDES ANY PRIOR FINDINGS,

4 RULINGS OR CREDIBILITY DETERMINATION THAT I HAD MADE ON A PARTIAL

5 RECORD WITHOUT THE BENEFIT OF ALL THE FACTS.

6 BASED ON THE COMPLETE RECORD NOW BEFORE ME, I FIND THAT

7 THE GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED THE THREE

8 WITNESSES CRITICAL TO MR. RUEHLE'S DEFENSE. THE CUMULATIVE EFFECT

9 OF THAT MISCONDUCT HAS DISTORTED THE TRUTH-FINDING PROCESS AND

10 COMPROMISED THE INTEGRITY OF THE TRIAL.

11 TO SUBMIT THIS CASE TO THE JURY WOULD MAKE A MOCKERY OF

12 MR. RUEHLE'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND A FAIR

13 TRIAL. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

14 GUARANTEES THE ACCUSED THE RIGHT TO COMPULSORY PROCESS FOR

15 WITNESSES IN ITS DEFENSE. FOR THIS CONSTITUTIONAL RIGHT TO HAVE

16 TRUE MEANING, THE GOVERNMENT MUST NOT DO ANYTHING TO INTIMIDATE OR

17 IMPROPERLY INFLUENCE WITNESSES. SADLY, GOVERNMENT DID SO IN THIS

18 CASE.

19 MR. RUEHLE'S PRIMARY DEFENSE HERE HAS BEEN THAT HE HAD

20 NO CRIMINAL INTENT TO VIOLATE THE SECURITIES LAWS. TO SUCCEED, IT

21 WAS IMPERATIVE FOR MR. RUEHLE TO CALL THE THREE AVAILABLE

22 WITNESSES WHO HAD KNOWLEDGE OF BROADCOM'S STOCK-OPTION GRANTING

23 PRACTICES. THOSE THREE WITNESSES WERE NANCY TULLOS, THE VICE

24 PRESIDENT OF HUMAN RESOURCES; DAVID DULL, THE GENERAL COUNSEL; AND

25 DR. HENRY SAMUELI, COFOUNDER AND CHIEF TECHNICAL OFFICER. FOR

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5196 1 WHATEVER REASON, THE GOVERNMENT INTIMIDATED AND IMPROPERLY

2 INFLUENCED EACH OF THEM.

3 LET ME FIRST FOCUS ON MS. TULLOS. AFTER MS. TULLOS

4 DECLINED TO COOPERATE WITH THE GOVERNMENT, THE LEAD PROSECUTOR

5 CALLED THE GENERAL COUNSEL OF MS. TULLOS' NEW EMPLOYER AND MADE

6 INAPPROPRIATE STATEMENTS TO HIM THAT CAUSED MS. TULLOS TO LOSE HER

7 JOB.

8 AFTER THOSE EVENTS IN A REVERSE PROFFER SESSION THAT

9 LEFT HER UNDERSTANDABLY SCARED, MS. TULLOS ENTERED INTO AN UNUSUAL

10 COOPERATION PLEA AGREEMENT CONTAINING A QUESTIONABLE FACTUAL

11 BASIS, THAT SEVEN YEARS BEFORE ANY GOVERNMENT INVESTIGATION

12 COMMENCED INTO BROADCOM, MS. TULLOS OBSTRUCTED JUSTICE BY ASKING

13 AN EMPLOYEE TO DELETE AN E-MAIL THAT MS. TULLOS HERSELF NEVER

14 DELETED AND, IN FACT, COPIED TO ANOTHER PERSON.

15 THE GOVERNMENT ALSO TOLD MS. TULLOS THAT SHE WOULD HAVE

16 TO PLEAD TO A FELONY BECAUSE IT LOOKED MORE CONVINCING TO A JURY.

17 AND, MOST TROUBLING, THE GOVERNMENT MET WITH MS. TULLOS ON 26

18 SEPARATE OCCASIONS AND SUBJECTED HER TO GRUELING INTERROGATION

19 DURING WHICH THE GOVERNMENT INTERJECTED ITS VIEWS OF THE EVIDENCE

20 AND, AT LEAST ON ONE OCCASION, TOLD HER THAT SHE WOULD NOT RECEIVE

21 THE BENEFITS OF COOPERATION UNLESS SHE TESTIFIED DIFFERENTLY THAN

22 SHE HAD INITIALLY IN AN EARLIER SESSION.

23 NOT SURPRISINGLY, MS. TULLOS' TESTIMONY AT TRIAL CAME

24 OFF SCRIPTED AND NOT CONSISTENT WITH THE EXTENSIVE E-MAIL TRAIL

25 BROUGHT OUT DURING CROSS-EXAMINATION.

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5197 1 I HAVE ABSOLUTELY NO CONFIDENCE THAT ANY PORTION OF MS.

2 TULLOS'S TESTIMONY WAS BASED ON HER OWN INDEPENDENT RECOLLECTION

3 OF EVENTS AS OPPOSED TO WHAT THE GOVERNMENT THOUGHT HER

4 RECOLLECTION SHOULD BE ON THOSE EVENTS.

5 LET ME NEXT FOCUS ON MR. DULL. THE GOVERNMENT BELIEVED

6 THAT MR. DULL WAS A COCONSPIRATOR YET IT DECIDED NOT TO SEEK

7 CHARGES AGAINST HIM FOR SECURITIES FRAUD. IN EFFECT, THE

8 GOVERNMENT LEFT MR. DULL HANGING IN THE WIND AND UNCERTAIN OF HIS

9 FATE FOR ALMOST TWO YEARS. DURING TRIAL, I GRANTED MR. DULL

10 IMMUNITY SO HE COULD TESTIFY FOR THE DEFENSE.

11 AFTER I HAD DONE SO, THE LEAD PROSECUTOR CONTACTED

12 COUNSEL FOR MR. DULL AND THREATENED TO PROSECUTE MR. DULL IF HE

13 TESTIFIED CONSISTENTLY WITH HIS PRIOR TESTIMONY BEFORE THE SEC.

14 COMPOUNDING HIS MISCONDUCT, THE LEAD PROSECUTOR ATTEMPTED TO

15 NEGOTIATE THE TESTIMONY OF MR. DULL BY, AMONG OTHER THINGS,

16 PROMISING A SOFT CROSS IF MR. DULL INCRIMINATED OR DISPARAGED MR.

17 RUEHLE. THE LEAD PROSECUTOR SOMEHOW FORGOT THAT TRUTH IS NEVER

18 NEGOTIABLE.

19 FINALLY, LET ME FOCUS ON DR. SAMUELI. THE

20 UNCONTROVERTED EVIDENCE AT TRIAL ESTABLISHED THAT DR. SAMUELI WAS

21 A BRILLIANT ENGINEER AND A MAN OF INCREDIBLE INTEGRITY. THERE WAS

22 NO EVIDENCE AT TRIAL TO SUGGEST THAT DR. SAMUELI DID ANYTHING

23 WRONG, LET ALONE CRIMINAL. YET, THE GOVERNMENT EMBARKED ON A

24 CAMPAIGN OF INTIMIDATION AND OTHER MISCONDUCT TO EMBARRASS HIM AND

25 BRING HIM DOWN.

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5198 1 AMONG OTHER WRONGFUL ACTS THE GOVERNMENT, ONE,

2 UNREASONABLY DEMANDED THAT DR. SAMUELI SUBMIT TO AS MANY AS 30

3 GRUELING INTERROGATIONS BY THE LEAD PROSECUTOR.

4 TWO, FALSELY STATED AND IMPROPERLY LEAKED TO THE MEDIA

5 THAT DR. SAMUELI WAS NOT COOPERATING IN THE GOVERNMENT'S

6 INVESTIGATION.

7 THREE, IMPROPERLY PRESSURED BROADCOM TO TERMINATE DR.

8 SAMUELI'S EMPLOYMENT AND REMOVE HIM FROM THE BOARD.

9 FOUR, MISLED DR. SAMUELI INTO BELIEVING THAT THE LEAD

10 PROSECUTOR WOULD BE REPLACED BECAUSE OF MISCONDUCT.

11 FIVE, OBTAINED AN INFLAMMATORY INDICTMENT THAT REFERRED

12 TO DR. SAMUELI 72 TIMES AND ACCUSED HIM OF BEING AN UNINDICTED

13 COCONSPIRATOR WHEN THE GOVERNMENT NEW, OR SHOULD HAVE KNOWN, THAT

14 HE DID NOTHING WRONG.

15 AND SEVEN, CRAFTED AN UNCONSCIONABLE PLEA AGREEMENT

16 PURSUANT TO WHICH DR. SAMUELI WOULD PLEAD GUILTY TO A CRIME HE DID

17 NOT COMMIT AND PAY A RIDICULOUS SUM OF $12 MILLION TO THE UNITED

18 STATES TREASURY.

19 ONE MUST CONCLUDE THAT THE GOVERNMENT ENGAGED IN THIS

20 MISCONDUCT TO PRESSURE DR. SAMUELI TO FALSELY ADMIT GUILT AND

21 INCRIMINATE MR. RUEHLE OR, IF HE WAS UNWILLING TO MAKE SUCH A

22 FALSE ADMISSION AND INCRIMINATION, TO DESTROY DR. SAMUELI'S

23 CREDIBILITY AS A WITNESS FOR MR. RUEHLE.

24 NEEDLESS TO SAY, THE GOVERNMENT'S TREATMENT OF DR.

25 SAMUELI WAS SHAMEFUL AND CONTRARY TO AMERICAN VALUES OF DECENCY

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5199 1 AND JUSTICE.

2 IN LIGHT OF MY FINDING OF GOVERNMENT MISCONDUCT AND

3 DENIAL OF MR. RUEHLE'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS,

4 I MUST NOW EXERCISE MY SUPERVISORY AUTHORITY AND ISSUE THE

5 FOLLOWING ORDER:

6 NUMBER ONE, I'M GOING TO DISMISS, WITH PREJUDICE, THE

7 STOCK-OPTION BACKDATING INDICTMENT AGAINST MR. RUEHLE AND ENTER A

8 JUDGMENT OF ACQUITTAL. THIS DISMISSAL AND JUDGMENT ARE BASED ON

9 TWO SEPARATE, BUT RELATED GROUNDS.

10 FIRST, AS I PREVIOUSLY STATED, THE GOVERNMENT MISCONDUCT

11 HAS DEPRIVED MR. RUEHLE OF THE RIGHT TO COMPULSORY PROCESS AND A

12 FAIR TRIAL. AND SECOND, THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN

13 A CONVICTION AGAINST MR. RUEHLE. BECAUSE THE GOVERNMENT

14 IMPROPERLY INFLUENCED MS. TULLOS, HER TRIAL TESTIMONY IS

15 UNRELIABLE AND MUST BE STRICKEN.

16 WITHOUT MS. TULLOS' TAINTED TESTIMONY THERE IS

17 INSUFFICIENT EVIDENCE THAT MR. RUEHLE HAD THE CRIMINAL INTENT

18 NECESSARY TO VIOLATE ANY OF THE LAWS ALLEGED IN THE INDICTMENT.

19 I SHOULD NOTE THAT THIS LATTER GROUND PROHIBITS THE

20 GOVERNMENT FROM PROSECUTING MR. RUEHLE AGAIN FOR ANY CRIME RELATED

21 TO THE STOCK OPTION PRACTICES AT BROADCOM. TO DO SO WOULD VIOLATE

22 THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.

23 NUMBER TWO, I'M GOING TO DISMISS, WITH PREJUDICE, THE

24 STOCK-OPTION BACKDATING INDICTMENT AGAINST DR. NICHOLAS. THE

25 THREE WITNESSES THAT MR. RUEHLE NEEDED TO PROVE HIS INNOCENCE ARE

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5200 1 THE SAME THREE WITNESSES THAT DR. NICHOLAS NEEDS TO PROVE HIS

2 INNOCENCE. CONSEQUENTLY, DR. NICHOLAS IS DENIED HIS RIGHT TO

3 COMPULSORY PROCESS AND HE CANNOT RECEIVE A FAIR TRIAL.

4 NUMBER THREE, I'M GOING TO ORDER GOVERNMENT TO SHOW

5 CAUSE, ON FEBRUARY 2, 2010, AT 9:00 A.M. WHY THE DRUG DIRECTION

6 INDICTMENT AGAINST DR. NICHOLAS SHOULD NOT BE DISMISSED. THE

7 THREE MATERIAL WITNESSES IN THE STOCK-OPTION BACKDATING CASE WILL

8 UNDOUBTEDLY BE WITNESSES IN THE DRUG DISTRIBUTION CASE, BUT I'M

9 NOT SURE WHETHER THE DIFFERENT NATURE OF THE DRUG CHARGES REDUCES

10 THE PREJUDICE TO DR. NICHOLAS SO HE CAN STILL EXERCISE HIS RIGHT

11 TO COMPULSORY PROCESS AND RECEIVE A FAIR TRIAL.

12 I DO ASK THAT THE GOVERNMENT KEEP IN MIND TWO ISSUES IN

13 ITS DECISION WHETHER TO GO FORWARD WITH THE DRUG DISTRIBUTION CASE

14 AGAINST DR. NICHOLAS. FIRST, THERE WILL BE OTHER EVIDENCE OF

15 GOVERNMENT MISCONDUCT INTRODUCED AT THAT TRIAL, SUCH AS THE

16 GOVERNMENT'S THREAT TO ISSUE A GRAND JURY SUBPOENA TO DR.

17 NICHOLAS' 13-YEAR-OLD-SON AND FORCE THE BOY TO TESTIFY AGAINST HIS

18 FATHER.

19 AND SECOND, DR. NICHOLAS'S E-MAIL TO HIS FORMER WIFE

20 ENTITLED "BRETT'S HOME RUN" WILL NOT BE ADMITTED AT TRIAL UNDER

21 ANY CIRCUMSTANCE. THE E-MAIL IS VERY PRIVATE AND PERSONAL AND

22 WILL NOT BE PUBLICLY AIRED IN THIS COURT AGAIN.

23 FOUR, I'M GOING TO LIFT THE STAY IMPOSED IN THE SEC

24 CIVIL STOCK-OPTION BACKDATING CASE AND DISMISS THAT COMPLAINT

25 WITHOUT PREJUDICE. THE SEC HAS 30 DAYS TO FILE AN AMENDED

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5201 1 COMPLAINT. I DO, HOWEVER, DISCOURAGE THE SEC FROM PROCEEDING

2 FURTHER WITH THE CASE.

3 THE GOVERNMENT'S MISCONDUCT HAS COMPROMISED THE

4 INTEGRITY AND LEGITIMACY OF THE CASE AND THE EVIDENCE AT MR.

5 RUEHLE'S TRIAL ESTABLISHED THE SEC WILL HAVE GREAT DIFFICULTY

6 PROVING THAT THE DEFENDANTS ACTED WITH THE RECKLESS SCIENTER.

7 THE ACCOUNTING STANDARDS AND GUIDELINES UP WERE NOT

8 CLEAR, AND THERE WAS CONSIDERABLE DEBATE IN THE HIGH-TECH INDUSTRY

9 AS TO THE PROPER ACCOUNTING TREATMENT FOR STOCK OPTION GRANTS.

10 INDEED, APPLE AND MICROSOFT WERE ENGAGING IN THE EXACT SAME

11 PRACTICES AS THOSE OF BROADCOM.

12 NOW, I'M SURE THERE ARE GOING TO BE MANY PEOPLE WHO ARE

13 GOING TO BE CRITICAL OF MY DECISION IN THIS CASE AND ARGUE THAT

14 I'M BEING TOO HARD ON THE GOVERNMENT. I STRONGLY DISAGREE. I

15 HAVE A SOLEMN OBLIGATION TO HOLD THE GOVERNMENT TO THE

16 CONSTITUTION. I'M DOING NOTHING MORE AND NOTHING LESS. AND I ASK

17 MY CRITICS TO PUT THEMSELVES IN THE SHOES OF THE ACCUSED.

18 YOU ARE CHARGED WITH SERIOUS CRIMES AND, IF CONVICTED ON

19 THEM, YOU WILL SPEND THE REST OF YOUR LIFE IN PRISON. YOU ONLY

20 HAVE THREE WITNESSES TO PROVE YOUR INNOCENCE AND GOVERNMENT HAS

21 INTIMIDATED AND IMPROPERLY INFLUENCED EACH ONE OF THEM. IS THAT

22 FAIR? IS THAT JUSTICE? I SAY ABSOLUTELY NOT.

23 I'D LIKE TO CONCLUDE WITH THE POWERFUL AND INSIGHTFUL

24 PASSAGE FROM THE U.S. SUPREME COURT IN THE CASE OF BERGER V.

25 UNITED STATES.

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5202 1 "THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE, NOT

2 OF AN ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE

3 OBLIGATION TO GOVERN IMPARTIALLY IS AS COMPELLING AS ITS

4 OBLIGATION TO GOVERN AT ALL, AND WHOSE INTEREST, THEREFORE, IN A

5 CRIMINAL PROSECUTION IS NOT THAT IT SHALL WIN A CASE, BUT THAT

6 JUSTICE SHALL BE DONE. AS SUCH, HE IS IN A PECULIAR AND A VERY

7 DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD AIM OF WHICH IS

8 THAT GUILT SHALL NOT ESCAPE OR INNOCENT SUFFER.

9 HE MAY PROSECUTE WITH EARNESTNESS AND VIGOR. INDEED, HE

10 SHOULD DO SO. BUT WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT

11 LIBERTY TO STRIKE FOUL ONES. IT IS MUCH HIS DUTY TO REFRAIN FROM

12 IMPROPER METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT

13 IS TO USE EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE."

14 I SINCERELY REGRET THAT THE GOVERNMENT DID NOT HEED THE

15 RIGHTEOUS WORDS OF THE SUPREME COURT.

16 MR. MARMARO, I'LL HEAR FROM YOU FIRST, SIR, IF THERE IS

17 ANYTHING YOU OR MR. RUEHLE WOULD LIKE TO STATE ON THE RECORD.

18 MR. MARMARO: YOUR HONOR, IT'S VERY DIFFICULTY

19 OBVIOUSLY, HAVING HEARD THE COURT'S COMMENTS, TO GIVE A COMPOSED

20 RESPONSE OR A STATEMENT, BUT I JUST WANT TO SAY ONE THING, YOUR

21 HONOR. YOU HAVE SAID ALL ALONG THAT YOU WANTED TO HEAR THE WHOLE

22 STORY. BUT IF IT WEREN'T FOR WHAT YOU DID, WE WOULD NOT HAVE

23 HEARD THE WHOLE STORY. IF IT WEREN'T FOR YOUR DECISION TO GRANT

24 DEFENSE WITNESSES IMMUNITY, WE WOULD NOT HAVE HEARD FROM DR.

25 SAMUELI AND MR. DULL. AND YOU WOULD HAVE BEEN STUCK WITH ONLY

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5203 1 PART OF THE STORY.

2 SO IN A VERY LARGE SENSE, YOUR HONOR, WHAT HAPPENED,

3 WHAT YOU ANNOUNCED TODAY IS THE DIRECT RESULT OF WHAT YOU DID.

4 AND I HAVE TO TELL YOU, YOUR HONOR, 34 YEARS AGO TODAY,

5 TO THE DAY, DECEMBER 15, 1975, I PASSED THE BAR. WHAT HAPPENED IN

6 THIS COURT WAS VERY DIFFICULT TO WATCH, BUT WHAT HAPPENED TODAY

7 RESTORES MY FAITH AND I CAN HONESTLY SAY I HAVE NEVER BEEN MORE

8 PROUD TO BE A LAWYER.

9 THE COURT: MR. SULLIVAN, I KNOW I'M PROBABLY CATCHING

10 YOU A LITTLE OFF GUARD, BUT GIVEN THE MANY ORDERS THAT I HAVE

11 ISSUED, I DON'T KNOW IF THERE IS ANYTHING YOU WOULD LIKE TO SAY ON

12 THE RECORD, SIR.

13 MR. SULLIVAN: OF COURSE, MR. MARMARO IS A YOUNG LAWYER.

14 I HAVE BEEN DOING THIS 42 YEARS, BUT I ADOPT HIS MOVING WORDS.

15 I GUESS THAT WHEN I WAS A YOUNG LAWYER, I WAS NAIVE AND

16 I THOUGHT THAT FAIRNESS WAS ASSURED IN OUR COURTROOMS BECAUSE OUR

17 FOUNDING FATHERS HAD DEVISED THIS MAGICAL CONSTITUTION AND THIS

18 MAGICAL BILL OF RIGHTS, AND SOMEHOW IF THE GOVERNMENT LIVED BY

19 THAT, THAT WE WOULD ALWAYS BE JUST FINE. BUT I WAS NAIVE. I

20 LEARNED IN SHORT ORDER THAT THE ONLY THING THAT ASSURES FAIRNESS

21 IN THE COURTROOM ARE JUDGES WITH COURAGE TO KEEP THEIR EYES OPEN,

22 WATCH WHAT IS HAPPENING, KEEP AN OPEN MIND AND MAKE FAIR

23 DECISIONS, FAIR TO BOTH SIDES.

24 AND, YOUR HONOR, I STAND IN AWE OF WHAT YOU HAVE DONE

25 HERE TODAY BASED UPON THE MANY DAYS OF TEDIOUS TRIAL THAT WE HAVE

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5204 1 SEEN.

2 I'LL ADD ONLY ONE THING TO YOUR SUPREME COURT ARGUMENT.

3 AND WE ALL KNOW, WITHOUT SAYING, THAT THERE ARE MANY, MANY FINE

4 MEN AND WOMEN IN GOVERNMENT SERVICE, IN PROSECUTOR'S OFFICES AND

5 ALSO IN THE FBI. AND WE APPLAUD THEM. AND SOMETIMES WE DO SEE

6 THE KIND OF MISCONDUCT ON THE PART OF AN INDIVIDUAL OR SEVERAL

7 INDIVIDUALS.

8 BUT I'M REMINDED WHEN I HEARD YOUR SUPREME COURT QUOTE,

9 HOW SIMILAR IT WAS TO THE QUOTE I HEARD EIGHT MONTHS AGO, APRIL 8,

10 2008, FROM THE ATTORNEY GENERAL HIMSELF, A MESSAGE THAT WAS

11 DELIVERED TO ALL STATE DEPARTMENT U.S. ATTORNEYS. AND I QUOTE

12 HIM.

13 "YOUR JOB AS U.S. ATTORNEYS IS NOT TO CONVICT PEOPLE,

14 YOUR JOB IS NOT TO WIN CASES. YOUR JOB IS TO DO JUSTICE. YOUR

15 JOB IS IN EVERY CASE, EVERY DECISION THAT YOU MAKE, TO DO THE

16 RIGHT THING. ANYBODY WHO ASKS YOU TO DO SOMETHING OTHER THAN THAT

17 IS TO BE IGNORED. ANY POLICY THAT IS AT TENSION WITH THAT IS TO

18 BE QUESTIONED AND BROUGHT TO MY ATTENTION."

19 THE MESSAGE DELIVERED BY THIS COURT TODAY HAD BEEN HEARD

20 THROUGHOUT THE COUNTRY BY ALL WHO ENFORCE THE LAW, AND WE ARE ALL

21 BETTER OFF AND THE SYSTEM OF JUSTICE WILL BE BETTER OFF FOR THE

22 COURAGE DEMONSTRATED IN THIS COURT ON THIS DATE. THANK YOU.

23 THE COURT: MR. GREENBERG, IS THERE ANYTHING YOU WOULD

24 LIKE TO SAY ON BEHALF OF DR. SAMUELI?

25 MR. GREENBERG: THANK YOU, YOUR HONOR.

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5205 1 I'M IN A DANGEROUS POSITION, A LAWYER WHO IS BREATHLESS.

2 I REALLY -- MY BREATH IS TAKEN AWAY BECAUSE, ECHOING THE

3 SENTIMENTS OF MY COLLEAGUES HERE, THIS TRULY IS A TURNING POINT, I

4 BELIEVE, THAT WILL BE HEARD THROUGHOUT THE COUNTRY.

5 I SAT AT THAT TABLE AS A PROSECUTOR AND ENJOYED IT. IT

6 WAS THE GREATEST JOB I HAD IN MY LIFE. THE MOST ENJOYABLE BECAUSE

7 THE PRESUMPTION OF CREDIBILITY, YOU ARE CLOAKED WITH IT FROM THE

8 MOMENT THAT YOU WALK INTO THE COURTROOM. USUALLY, FROM THE

9 JUDGE'S PERSPECTIVE, FRANKLY FROM THE CLERK'S PERSPECTIVE, IT'S

10 YOUR CREDIBILITY TO LOSE.

11 AND IT'S A TREMENDOUS BURDEN DOING IT ON THE OTHER SIDE

12 OF THE EQUATION, YOUR HONOR, TO PIERCE THAT. AND TODAY THE

13 COURT'S ACKNOWLEDGMENT, ESPECIALLY IN LIGHT OF WHERE WE STARTED IN

14 THIS CASE, YOUR HONOR, WHICH I CAN ONLY SAY TO YOUR HONOR, THAT

15 IT'S REMARKABLE BECAUSE IN A PUBLIC SETTING, YOUR HONOR HAS SET

16 THE RECORD STRAIGHT AND INDICATED INITIALLY THAT IT WANTED TO HEAR

17 THE FACTS OF THIS AND REJECTED OUR PLEA, AND I COULD ONLY BE

18 THANKFUL FOR THAT.

19 I SAY THAT TO YOU SINCERELY BECAUSE IT TAKES NOT ONLY A

20 TREMENDOUS JUDGE, BUT A TREMENDOUS HUMAN BEING TO RECOGNIZE THAT

21 THAT WAS, FRANKLY, THE WRONG DECISION, IF I MAY SAY SO, YOUR

22 HONOR, AT THE TIME IN TERMS OF HOW IT WAS POSTURED AT THAT TIME.

23 AND I THANK YOUR HONOR FOR LISTENING CAREFULLY AND

24 KEEPING AN OPEN MIND, AND TRULY LOOKING AT THE EVIDENCE, AND

25 UNDERSTANDING AND GETTING TO THE POINT OF EXACTLY WHAT HAPPENED

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5206 1 HERE.

2 AND I THINK THAT OUR JUSTICE SYSTEM WILL EMBRACE THIS.

3 THERE HAVE BEEN MANY CIRCUMSTANCES AROUND THE COUNTRY MOST

4 RECENTLY WHERE A NUMBER OF CASES HAVE BEEN TOSSED BECAUSE OF

5 PROSECUTORS PLACING THEIR THUMB ON THE SCALES OF JUSTICE. AND

6 SADLY, THE OFFICE THAT I LOVED SO MUCH, HERE, WHICH IS A

7 TREMENDOUS OFFICE, THE U.S. ATTORNEY'S OFFICE, DID SO IN THIS

8 CASE.

9 AND I THANK YOUR HONOR FOR THE COURAGE TO GO FORWARD AND

10 SET THE RECORD STRAIGHT. I HAVE REPRESENTED A HUMAN BEING HERE

11 THAT I HAVE NEVER HAD MORE RESPECT FOR, OF ANYONE I HAVE

12 REPRESENTED. AND NO DISRESPECT TO ANYONE ELSE. HE TRULY IS A

13 WONDERFUL HUMAN BEING. AND I HAVE WATCHED THE FAMILY GO THROUGH

14 THIS PROCESS FOR THREE AND A HALF YEARS. AND IT'S BEEN UGLY. AND

15 IT JUST GOT UGLIER AND UGLIER UNTIL TODAY IN WHICH WE CAN ALL GO

16 HOME AND CELEBRATE.

17 THANK YOU, YOUR HONOR.

18 THE COURT: MR. ASPERGER?

19 MR. SLOAN: THANK YOU, YOUR HONOR.

20 AS THE COURT KNOWS, MR. ARONSON AND I AND MR. DULL HAVE,

21 IN MANY WAYS, BEEN BYSTANDERS TO THESE CRIMINAL PROCEEDINGS, BUT

22 THIS HAS NONETHELESS BEEN EXTREMELY CHALLENGING AS I'M SURE THE

23 COURT IS WELL AWARE, FOR MR. DULL AND HIS FAMILY. AND WE APPLAUD

24 THE COURT. WE ECHO WHAT OUR COLLEAGUES HAVE SAID AND APPLAUD THE

25 COURT FOR THE GREAT COURAGE THAT THE COURT HAS SHOWN IN ITS RULING

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5207 1 TODAY.

2 ONE OF THE THINGS THAT STRUCK ME IN THE LAST TWO WEEKS

3 WAS WHEN THE COURT SAID THAT YOU'RE HERE TO DO JUSTICE, TO DO THE

4 RIGHT THING, AND THAT'S WHY YOU TOOK THE BENCH. THAT'S WHY I WAS

5 A FEDERAL PROSECUTOR FOR 10 YEARS, YOUR HONOR, AND WAS PROUD TO BE

6 ABLE TO SAY I REPRESENT THE UNITED STATES OF AMERICA. IT'S WHY,

7 IN REPRESENTING MR. DULL AND TRYING TO SUPPORT HIM AND HIS FAMILY,

8 WE'RE VERY PROUD TO BE REPRESENTING A MAN OF SUCH INTEGRITY WHO

9 WAS ALWAYS THERE TO DO THE RIGHT THING.

10 AND THIS WILL BE A GREAT RELIEF OF THE BURDENS AND

11 TRYING CIRCUMSTANCES THAT HE HAS HAD TO GO THROUGH.

12 AND I WILL ECHO WHAT, AGAIN, MR. MARMARO AND

13 MR. SULLIVAN AND MR. GREENBERG HAD SAID. IT'S JUDGES LIKE YOU WHO

14 HAVE SHOWN THE COURAGE TO MAKE THE RULING THAT YOU HAVE MADE; TO

15 DO THE RIGHT THING; TO LOOK AT THE FACTS WITH AN OPEN MIND; AND TO

16 BE OPEN TO CHANGING YOUR VIEW OF THE FACTS AND COMING UP WITH

17 DOING THE RIGHT THING AND DOING FAIRNESS THAT RESTORES OUR FAITH

18 IN THE SYSTEM OF JUSTICE.

19 AGAIN, IT STRUCK ME THAT THE BIGGEST DISAPPOINTMENT FOR

20 MR. DULL, WHEN THE EVENTS THAT HAPPENED OCCURRED IN THIS CASE, WAS

21 HIS PROFOUND DISAPPOINTMENT IN OUR JUSTICE SYSTEM. I'M SURE I

22 SPEAK FOR HIM AS FOR ALL OF US THAT YOUR RULING TODAY DOES RESTORE

23 THAT FAITH, AND WE'RE VERY GRATEFUL FOR IT, YOUR HONOR.

24 AS THE COURT IS WELL AWARE, WE HAVE A PROPOSED ORDER

25 THAT WHENEVER YOU FEEL IT APPROPRIATE TO TAKE UP, WE CAN, BUT I

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5208 1 REALIZE TODAY IS NOT THE TIME.

2 THANK YOU, YOUR HONOR.

3 THE COURT: VERY WELL.

4 I SINCERELY APPRECIATE ALL THE COMPLIMENTS THAT COUNSEL

5 HAVE GIVEN, ESPECIALLY THEY'RE FROM THE TITANS IN THE LEGAL

6 PROFESSION. SO THEY MEAN A LOT TO ME. BUT IT'S REALLY IMPORTANT

7 I THINK, TO ME, THAT YOU AND MR. RUEHLE, DR. NICHOLAS, MR. DULL,

8 AND DR. SAMUELI REALIZE, I DON'T NEED TO BE COMPLIMENTED. THE

9 WISDOM, THE BRILLIANCE WAS IN THE FRAMERS OF OUR CONSTITUTION.

10 I'M JUST DOING MY JOB.

11 MR. ADKINS, IS THERE ANYTHING THE GOVERNMENT WOULD LIKE

12 TO SAY? MR. CARDONA?

13 MR. CARDONA: YOUR HONOR, VERY BRIEFLY. FIRST, AS YOU

14 KNOW, THIS IS THE FIRST TIME I HAVE BEEN DOWN HERE IN THIS CASE.

15 I APOLOGIZE FOR NOT HAVING BEEN OVER HERE THE LAST TWO WEEKS WHEN

16 THESE EVENTS WERE GOING DOWN. I WOULD HAVE HOPED I COULD HAVE

17 SAID SOMETHING THAT MIGHT HAVE CONVINCED THE COURT TO RULE

18 DIFFERENTLY THAN IT DID TODAY.

19 I DON'T KNOW IF YOU WERE TOLD, BUT I WAS OUT OF, FIRST

20 THE STATE AND OUT OF THE COUNTRY SO COULD NOT BE HERE.

21 THE COURT: I WAS.

22 MR. ADKINS: WITH THAT, YOUR HONOR, OBVIOUSLY WE HAVE

23 HEARD YOUR DECISION. RESPECTFULLY, WE DISAGREE WITH IT. I DON'T

24 THINK THAT WILL COME AS A SURPRISE TO YOU. WE HAVE SUBMITTED OUR

25 PAPERS. WE BELIEVE WE HAVE SET FORTH OUR POSITION IN OUR PAPERS

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5209 1 AND THE OTHER PLEADINGS. AND I DON'T BELIEVE THERE IS ANY POINT

2 IN SAYING ANYTHING FURTHER HERE. YOU UNDERSTAND OUR POSITIONS. I

3 UNDERSTAND YOU DISAGREE WITH THEM. I HOPE YOU UNDERSTAND WE

4 DISAGREE WITH YOUR RULING AND WE WILL NEED TO DECIDE WHAT WE DO

5 NEXT. THANK YOU.

6 THE COURT: AND I APPRECIATE THAT, SIR.

7 ALL RIGHT. I DON'T THINK ANYTHING NEEDS TO BE SAID

8 FURTHER OTHER THAN, MR. RUEHLE, YOU ARE A FREE MAN.

9 THE DEFENDANT: THANK YOU, YOUR HONOR.

10 (WHEREUPON THE PROCEEDINGS WERE ADJOURNED AT 9:33.)

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 Page 5210 1

2 -OOO-

4 CERTIFICATE

6 I HEREBY CERTIFY THAT PURSUANT TO SECTION 753, TITLE 28,

7 UNITED STATES CODE, THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT

8 OF THE STENOGRAPHICALLY REPORTED PROCEEDINGS HELD IN THE

9 ABOVE-ENTITLED MATTER.

11 DATE: DECEMBER 15, 2009

13 ______14 MARIA DELLANEVE, U.S. COURT REPORTER CSR NO. 9132 15

Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375 LOCAL RULES

OF THE UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF MASSACHUSETTS

Including Amendments Through APRIL 1, 2008 RULE 116.1 DISCOVERY IN CRIMINAL CASES

(A) Discovery Alternatives.

(1) Automatic Discovery. In all felony cases, unless a defendant waives automatic discovery, all discoverable material and information in the possession, custody, or control of the government and that defendant, the existence of which is known, or by the exercise of due diligence may become known, to the attorneys for those parties, must be disclosed to the opposing party without formal motion practice at the times and under the automatic discovery procedures specified in this Local Rule.

(2) Non-automatic Discovery. In felony cases, if the defendant waives automatic discovery, and in non-felony cases the defendant must obtain discovery directly through the provisions of the Federal Rules of Criminal Procedure in the manner provided under Local Rule 116.3.

(B) Waiver. A defendant shall be deemed to have requested all the discovery authorized by Fed. R. Crim. P. 16(a)(1)(A)-(D) unless that defendant files a Waiver of Request for Disclosure (the "Waiver") at, or within fourteen (14) days after, arraignment. If the Waiver is not timely filed, the defendant shall be subject to the correlative reciprocal discovery obligations of Fed. R. Crim. P. 16(b) and of this Local Rule and shall be deemed to have consented to the exclusion of time for Speedy Trial Act purposes as provided in L.R.112.2(A)(2).

(1) Following Arraignment. Unless a defendant has filed the Waiver, within twenty-eight (28) days of arraignment - or within fourteen (14) days of receipt by the government of a written statement by the defendant that no Waiver will be filed - the government must produce to the defendant:

(a) Fed. R. Crim. P. 16 Materials - All of the information to which the defendant would be entitled under Fed. R. Crim. P. 16(a)(1)(A)-(D).

(b) Search Materials - A copy of any search warrant (with supporting application, affidavit, and return) and a written description of any consent search or warrantless search (including an inventory of evidence seized):

(i) which resulted in the seizure of evidence or led to the discovery of evidence that the government intends to offer as part of its case-in-chief; or

(ii) was obtained for or conducted of the defendant’s property, residence, place of business, or person, in connection with investigation of the charges contained in the indictment.

(i) A written description of any interception of wire, oral, or electronic communications as defined in 18 U.S.C. § 2510, relating to the charges in the indictment in which the defendant was intercepted and a statement whether the government intends to offer any such communications as evidence in its case-in- chief; and

(ii) A copy of any application for authorization to intercept such communications relating to the charges contained in the indictment in which the defendant was named as an interceptee or pursuant to which the defendant was intercepted, together with all supporting affidavits, the court orders authorizing such interceptions, and the court orders directing the sealing of intercepted communications under 18 U.S.C. § 2518(a).

92 (d) Consensual Interceptions -

(i) A written description of any interception of wire, oral, or electronic communications, relating to the charges contained in the indictment, made with the consent of one of the parties to the communication ("consensual interceptions"), in which the defendant was intercepted or which the government intends to offer as evidence in its case-in-chief.

(ii) Nothing in this subsection is intended to determine the circumstances, if any, under which, or the time at which, the attorney for the government must review and produce communications of a defendant in custody consensually recorded by the institution in which that defendant is held.

(e) Unindicted Coconspirators - As to each conspiracy charged in the indictment, the name of any person asserted to be a known unindicted coconspirator. If subsequent litigation requires that the name of any such unindicted coconspirator be referenced in any filing directly with the court, that information must be redacted from any public filing and be filed under L.R. 7.2 pending further order of the court.

(f) Identifications -

(i) A written statement whether the defendant was a subject of an investigative identification procedure used with a witness the government anticipates calling in its case-in-chief involving a line-up, show-up, photospread or other display of an image of the defendant.

(ii) If the defendant was a subject of such a procedure, a copy of any videotape, photospread, image or other tangible evidence reflecting, used in or memorializing the identification procedure.

(2) Exculpatory Information. The timing and substance of the disclosure of exculpatory evidence is specifically provided in L.R. 116.2.

(D) Automatic Discovery Provided by the Defendant.

In felony cases if the defendant has not filed the Waiver, within twenty-eight (28) days after arraignment, the defendant must produce to the government all material described in Fed. R. Crim. P. 16(b)(1)(A) and (B).

Adopted September 1, 1990; amended effective December 1, 1998.

93 RULE 116.2 DISCLOSURE OF EXCULPATORY EVIDENCE

(A) Definition. Exculpatory information includes, but may not be limited to, all information that is material and favorable to the accused because it tends to:

(1) Cast doubt on defendant's guilt as to any essential element in any count in the indictment or information;

(2) Cast doubt on the admissibility of evidence that the government anticipates offering in its case-in- chief, that might be subject to a motion to suppress or exclude, which would, if allowed, be appealable pursuant to 18 U.S.C. § 3731;

(3) Cast doubt on the credibility or accuracy of any evidence that the government anticipates offering in its case-in-chief; or

(4) Diminish the degree of the defendant's culpability or the defendant's Offense Level under the United States Sentencing Guidelines.

(B) Timing of Disclosure by the Government. Unless the defendant has filed the Waiver or the government invokes the declination procedure under Rule 116.6, the government must produce to that defendant exculpatory information in accordance with the following schedule:

(1) Within the time period designated in L.R. 116.1(C)(1):

(a) Information that would tend directly to negate the defendant's guilt concerning any count in the indictment or information.

(b) Information that would cast doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief and that could be subject to a motion to suppress or exclude, which would, if allowed, be appealable under 18 U.S.C. § 3731.

(c) A statement whether any promise, reward, or inducement has been given to any witness whom the government anticipates calling in its case-in-chief, identifying by name each such witness and each promise, reward, or inducement, and a copy of any promise, reward, or inducement reduced to writing.

(d) A copy of any criminal record of any witness identified by name whom the government anticipates calling in its case-in-chief.

(e) A written description of any criminal cases pending against any witness identified by name whom the government anticipates calling in its case-in-chief.

(f) A written description of the failure of any percipient witness identified by name to make a positive identification of a defendant, if any identification procedure has been held with such a witness with respect to the crime at issue.

(2) Not later than twenty-one (21) days before the trial date established by the judge who will preside:

(a) Any information that tends to cast doubt on the credibility or accuracy of any witness whom or evidence that the government anticipates calling or offering in its case-in-chief.

(b) Any inconsistent statement, or a description of such a statement, made orally or in writing by any witness whom the government anticipates calling in its case-in-chief, regarding the alleged criminal conduct of the defendant.

94 (c) Any statement or a description of such a statement, made orally or in writing by any person, that is inconsistent with any statement made orally or in writing by any witness the government anticipates calling in its case-in-chief, regarding the alleged criminal conduct of the defendant.

(d) Information reflecting bias or prejudice against the defendant by any witness whom the government anticipates calling in its case-in-chief.

(e) A written description of any prosecutable federal offense known by the government to have been committed by any witness whom the government anticipates calling in its case-in- chief.

(f) A written description of any conduct that may be admissible under Fed. R. Evid. 608(b) known by the government to have been committed by a witness whom the government anticipates calling in its case-in-chief.

(g) Information known to the government of any mental or physical impairment of any witness whom the government anticipates calling in its case-in chief, that may cast doubt on the ability of that witness to testify accurately or truthfully at trial as to any relevant event.

(3) No later than the close of the defendant’s case: Exculpatory information regarding any witness or evidence that the government intends to offer in rebuttal.

(4) Before any plea or to the submission by the defendant of any objections to the Pre-Sentence Report, whichever first occurs: A written summary of any information in the government’s possession that tends to diminish the degree of the defendant’s culpability or the defendant’s Offense Level under the United States Sentencing Guidelines.

(5) If an item of exculpatory information can reasonably be deemed to fall into more than one of the foregoing categories, it shall be deemed for purposes of determining when it must be produced to fall into the category which requires the earliest production.

Adopted September 8, 1998; effective December 1, 1998.

95 January 04, 2010

MEMORANDUM FOR DEPARTMENT PROSECUTORS

FROM: David W. Ogden Deputy Attorney General

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In addition, the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment information. See USAM §9-5.001. In order to meet discovery obligations in a given case, Federal prosecutors must be familiar with these authorities and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet their discovery obligations in each case. Toward that end, the Department has adopted the guidance for prosecutors regarding criminal discovery set forth below. The guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice. The guidance is subject to legal precedent, court orders, and local rules. It provides prospective guidance only and is not intended to have the force of law or to create or confer any rights, privileges, or benefits. See United States v. Caceres, 440 U.S. 741 (1979).

The guidance was developed at my request by a working group of experienced attorneys with expertise regarding criminal discovery issues that included attorneys from the Office of the Deputy Attorney General, the United States Attorneys’ Offices, the Criminal Division, and the National Security Division. The working group received comment from the Office of the Attorney General, the Attorney General’s Advisory Committee, the Criminal Chiefs Working Group, the Appellate Chiefs Working Group, the Professional Responsibility Advisory Office, and the Office of Professional Responsibility. The working group produced this consensus document intended to assist Department prosecutors to understand their obligations and to manage the discovery process. MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 2 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

By following the steps described below and being familiar with laws and policies regarding discovery obligations, prosecutors are more likely to meet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case. Prosecutors are reminded to consult with the designated criminal discovery coordinator in their office when they have questions about the scope of their discovery obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact the Professional Responsibility Advisory Office when they have questions about those or any other ethical responsibilities.

Department of Justice Guidance for Prosecutors Regarding Criminal Discovery

Step 1: Gathering and Reviewing Discoverable Information1

A. Where to look–The Prosecution Team

Department policy states:

It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.

USAM §9-5.001. This search duty also extends to information prosecutors are required to disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.

In most cases, “the prosecution team” will include the agents and law enforcement officers within the relevant district working on the case. In multi-district investigations, investigations that include both Assistant United States Attorneys and prosecutors from a Department litigating component or other United States Attorney’s Office (USAO), and parallel criminal and civil proceedings, this definition will necessarily be adjusted to fit the circumstances. In addition, in complex cases that involve parallel proceedings with regulatory agencies (SEC, FDIC, EPA, etc.), or other non-criminal investigative or intelligence agencies, the prosecutor should consider whether the relationship with the other agency is close enough to make it part of the prosecution team for discovery purposes.

1 For the purposes of this memorandum, “discovery” or “discoverable information” includes information required to be disclosed by Fed.R.Crim.P. 16 and 26.2, the Jencks Act, Brady, and Giglio, and additional information disclosable pursuant to USAM §9-5.001. MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 3 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

Some factors to be considered in determining whether to review potentially discoverable information from another federal agency include:

• Whether the prosecutor and the agency conducted a joint investigation or shared resources related to investigating the case; • Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team; • Whether the prosecutor knows of and has access to discoverable information held by the agency; • Whether the prosecutor has obtained other information and/or evidence from the agency; • The degree to which information gathered by the prosecutor has been shared with the agency; • Whether a member of an agency has been made a Special Assistant United States Attorney; • The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and • The degree to which the interests of the parties in parallel proceedings diverge such that information gathered by one party is not relevant to the other party.

Many cases arise out of investigations conducted by multi-agency task forces or otherwise involving state law enforcement agencies. In such cases, prosecutors should consider (1) whether state or local agents are working on behalf of the prosecutor or are under the prosecutor’s control; (2) the extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources; and (3) whether the prosecutor has ready access to the evidence. Courts will generally evaluate the role of a state or local law enforcement agency on a case-by-case basis. Therefore, prosecutors should make sure they understand the law in their circuit and their office’s practice regarding discovery in cases in which a state or local agency participated in the investigation or on a task force that conducted the investigation.

Prosecutors are encouraged to err on the side of inclusiveness when identifying the members of the prosecution team for discovery purposes. Carefully considered efforts to locate discoverable information are more likely to avoid future litigation over Brady and Giglio issues and avoid surprises at trial.

Although the considerations set forth above generally apply in the context of national security investigations and prosecutions, special complexities arise in that context. Accordingly, the Department expects to issue additional guidance for such cases. Prosecutors should begin considering potential discovery obligations early in an investigation that has national security implications and should also carefully evaluate their discovery obligations prior to filing charges. MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 4 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

This evaluation should consider circuit and district precedent and include consultation with national security experts in their own offices and in the National Security Division.

B. What to Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed.2 The review process should cover the following areas:

1. The Investigative Agency’s Files: With respect to Department of Justice law enforcement agencies, with limited exceptions,3 the prosecutor should be granted access to the substantive case file and any other file or document the prosecutor has reason to believe may contain discoverable information related to the matter being prosecuted.4 Therefore, the prosecutor can personally review the file or documents or may choose to request production of potentially discoverable materials from the case agents. With respect to outside agencies, the prosecutor should request access to files and/or production of all potentially discoverable material. The investigative agency’s entire investigative file, including documents such as FBI Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable information. If such information is contained in a document that the agency deems to be an “internal” document such as an email, an insert, an administrative document, or an EC, it may not be necessary to produce the internal document, but it will be necessary to produce all of the discoverable information contained in it. Prosecutors should also discuss with the investigative agency whether files from other investigations or non-investigative files such as confidential source files might contain discoverable information. Those additional files or relevant portions thereof should also be reviewed as necessary.

2. Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files: The credibility of cooperating witnesses or informants will always be at issue if they testify during a trial. Therefore, prosecutors are entitled to access to the agency file for each testifying CI, CW, CHS, or CS. Those files should be reviewed for discoverable information and copies made of relevant portions for discovery purposes. The entire informant/source file, not just the portion relating to the current case, including all proffer, immunity and other agreements, validation assessments, payment information, and other potential witness impeachment

2 How to conduct the review is discussed below.

3 Exceptions to a prosecutor’s access to Department law enforcement agencies’ files are documented in agency policy, and may include, for example, access to a non-testifying source’s files.

4 Nothing in this guidance alters the Department’s Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses contained in USAM §9-5.100. MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 5 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery information should be included within this review.

If a prosecutor believes that the circumstances of the case warrant review of a non- testifying source’s file, the prosecutor should follow the agency’s procedures for requesting the review of such a file.

Prosecutors should take steps to protect the non-discoverable, sensitive information found within a CI, CW, CHS, or CS file. Further, prosecutors should consider whether discovery obligations arising from the review of CI, CW, CHS, and CS files may be fully discharged while better protecting government or witness interests such as security or privacy via a summary letter to defense counsel rather than producing the record in its entirety.

Prosecutors must always be mindful of security issues that may arise with respect to disclosures from confidential source files. Prior to disclosure, prosecutors should consult with the investigative agency to evaluate any such risks and to develop a strategy for addressing those risks or minimizing them as much as possible, consistent with discovery obligations.

3. Evidence and Information Gathered During the Investigation: Generally, all evidence and information gathered during the investigation should be reviewed, including anything obtained during searches or via subpoenas, etc. As discussed more fully below in Step 2, in cases involving a large volume of potentially discoverable information, prosecutors may discharge their disclosure obligations by choosing to make the voluminous information available to the defense.

4. Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Civil Investigations: If a prosecutor has determined that a regulatory agency such as the SEC is a member of the prosecution team for purposes of defining discovery obligations, that agency’s files should be reviewed. Of course, if a regulatory agency is not part of the prosecution team but is conducting an administrative investigation or proceeding involving the same subject matter as a criminal investigation, prosecutors may very well want to ensure that those files are reviewed not only to locate discoverable information but to locate inculpatory information that may advance the criminal case. Where there is an ongoing parallel civil proceeding in which Department civil attorneys are participating, such as a qui tam case, the civil case files should also be reviewed.

5. Substantive Case-Related Communications: “Substantive” case-related communications may contain discoverable information. Those communications that contain discoverable information should be maintained in the case file or otherwise preserved in a manner that associates them with the case or investigation. “Substantive” case-related communications are most likely to occur (1) among prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses and/or victims, and (3) between victim-witness coordinators and witnesses and/or victims. Such communications may be memorialized in emails, memoranda, or notes. “Substantive” communications include factual reports about investigative activity, factual discussions of the relative merits of evidence, factual information obtained during interviews or MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 6 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery interactions with witnesses/victims, and factual issues relating to credibility. Communications involving case impressions or investigative or prosecutive strategies without more would not ordinarily be considered discoverable, but substantive case-related communications should be reviewed carefully to determine whether all or part of a communication (or the information contained therein) should be disclosed.

Prosecutors should also remember that with few exceptions (see, e.g., Fed.R.Crim.P. 16(a)(1)(B)(ii)), the format of the information does not determine whether it is discoverable. For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure obligation.

6. Potential Giglio Information Relating to Law Enforcement Witnesses: Prosecutors should have candid conversations with the federal agents with whom they work regarding any potential Giglio issues, and they should follow the procedure established in USAM §9-5.100 whenever necessary before calling the law enforcement employee as a witness. Prosecutors should be familiar with circuit and district court precedent and local practice regarding obtaining Giglio information from state and local law enforcement officers.

7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants: All potential Giglio information known by or in the possession of the prosecution team relating to non-law enforcement witnesses should be gathered and reviewed. That information includes, but is not limited to:

• Prior inconsistent statements (possibly including inconsistent attorney proffers, see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008)) • Statements or reports reflecting witness statement variations (see below) • Benefits provided to witnesses including: - Dropped or reduced charges - Immunity - Expectations of downward departures or motions for reduction of sentence - Assistance in a state or local criminal proceeding - Considerations regarding forfeiture of assets - Stays of deportation or other immigration status considerations -S-Visas - Monetary benefits - Non-prosecution agreements

- Letters to other law enforcement officials (e.g. state prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 7 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

- Relocation assistance - Consideration or benefits to culpable or at risk third-parties • Other known conditions that could affect the witness’s bias such as: - Animosity toward defendant - Animosity toward a group of which the defendant is a member or with which the defendant is affiliated - Relationship with victim - Known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor) • Prior acts under Fed.R.Evid. 608 • Prior convictions under Fed.R.Evid. 609 • Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events

8. Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews5 should be memorialized by the agent.6 Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue. If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.

a. Witness Statement Variations and the Duty to Disclose: Some witnesses’ statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may

5 “Interview” as used herein refers to a formal question and answer session with a potential witness conducted for the purpose of obtaining information pertinent to a matter or case. It does not include conversations with a potential witness for the purpose of scheduling or attending to other ministerial matters. Potential witnesses may provide substantive information outside of a formal interview, however. Substantive, case-related communications are addressed above.

6 In those instances in which an interview was audio or video recorded, further memorialization will generally not be necessary. MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 8 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.

b. Trial Preparation Meetings with Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of USAM §9-5.001 even if the information is first disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness’s prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions of subparagraph (a) above.

c. Agent Notes: Agent notes should be reviewed if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview. Prosecutors should pay particular attention to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed.R.Crim.P. 16(a)(1)(A)-(C) or may themselves be discoverable under Fed.R.Crim.P. 16(a)(1)(B). See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6th Cir. 2004) and United States v. Vallee, 380 F.Supp.2d 11, 12-14 (D. Mass. 2005).

Step 2: Conducting the Review

Having gathered the information described above, prosecutors must ensure that the material is reviewed to identify discoverable information. It would be preferable if prosecutors could review the information themselves in every case, but such review is not always feasible or necessary. The prosecutor is ultimately responsible for compliance with discovery obligations. Accordingly, the prosecutor should develop a process for review of pertinent information to ensure that discoverable information is identified. Because the responsibility for compliance with discovery obligations rests with the prosecutor, the prosecutor’s decision about how to conduct this review is controlling. This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself. In cases involving voluminous evidence obtained from third parties, prosecutors should consider providing defense access to the voluminous documents to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence. Such broad disclosure may not be feasible in national security cases involving classified information. MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 9 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

Step 3: Making the Disclosures

The Department’s disclosure obligations are generally set forth in Fed.R.Crim.P. 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady, and Giglio (collectively referred to herein as “discovery obligations”). Prosecutors must familiarize themselves with each of these provisions and controlling case law that interprets these provisions. In addition, prosecutors should be aware that Section 9-5.001 details the Department’s policy regarding the disclosure of exculpatory and impeachment information and provides for broader disclosures than required by Brady and Giglio. Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth above.

A. Considerations Regarding the Scope and Timing of the Disclosures: Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. It also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations; protecting the trial from efforts at obstruction; protecting national security interests; investigative agency concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges; and other strategic considerations that enhance the likelihood of achieving a just result in a particular case. In most jurisdictions, reports of interview (ROIs) of testifying witnesses are not considered Jencks material unless the report reflects the statement of the witness substantially verbatim or the witness has adopted it. The Working Group determined that practices differ among the USAOs and the components regarding disclosure of ROIs of testifying witnesses. Prosecutors should be familiar with and comply with the practice of their offices.

Prosecutors should never describe the discovery being provided as “open file.” Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently omitted from production and the prosecutor will then have unintentionally misrepresented the scope of materials provided. Furthermore, because the concept of the “file” is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e.g. agent notes or internal memos, that the court may deem to have been part of the “file.” MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 10 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

When the disclosure obligations are not clear or when the considerations above conflict with the discovery obligations, prosecutors may seek a protective order from the court addressing the scope, timing, and form of disclosures.

B. Timing: Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. See USAM §9-5.001. Section 9-5.001 also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistent with the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing.

Prosecutors should consult the local discovery rules for the district in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be produced without a request by the defendant and within a specified time frame, unless a court order has been entered delaying discovery, as is common in complex cases. Prosecutors must comply with these local rules, applicable case law, and any final court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial. In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in subparagraph (A) above. Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(1)(E) materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. 16(b)(1).

Discovery obligations are continuing, and prosecutors should always be alert to developments occurring up to and through trial of the case that may impact their discovery obligations and require disclosure of information that was previously not disclosed.

C. Form of Disclosure: There may be instances when it is not advisable to turn over discoverable information in its original form, such as when the disclosure would create security concerns or when such information is contained in attorney notes, internal agency documents, confidential source documents, Suspicious Activity Reports, etc. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, including particular language, where pertinent, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.

Step 4: Making a Record MEMORANDUM FOR DEPARTMENT PROSECUTORS Page 11 SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

One of the most important steps in the discovery process is keeping good records regarding disclosures. Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often the subject of litigation in criminal cases, keeping a record of the disclosures confines the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post-conviction relief, which are often filed long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps discussed above, and poor records can negate all of the work that went into taking the first three steps.

Conclusion

Compliance with discovery obligations is important for a number of reasons. First and foremost, however, such compliance will facilitate a fair and just result in every case, which is the Department’s singular goal in pursuing a criminal prosecution. This guidance does not and could not answer every discovery question because those obligations are often fact specific. However, prosecutors have at their disposal an array of resources intended to assist them in evaluating their discovery obligations including supervisors, discovery coordinators in each office, the Professional Responsibility Advisory Office, and online resources available on the Department’s intranet website, not to mention the experienced career prosecutors throughout the Department. And, additional resources are being developed through efforts that will be overseen by a full-time discovery expert who will be detailed to Washington from the field. By evaluating discovery obligations pursuant to the methodical and thoughtful approach set forth in this guidance and taking advantage of available resources, prosecutors are more likely to meet their discovery obligations in every case and in so doing achieve a just and final result in every criminal prosecution. Thank you very much for your efforts to achieve those most important objectives.

CRIMINAL DISCOVERY REFORM IN NEW YORK :

A PROPOSAL TO REPEAL C.P.L. ARTICLE 240 AND TO ENACT A NEW C.P.L. ARTICLE 245

THE LEGAL AID SOCIETY 199 WATER STREET NEW YORK , NEW YORK 10038

STEVEN BANKS , ATTORNEY -IN -CHIEF SEYMOUR JAMES , ATTORNEY -IN -CHARGE OF CRIMINAL DEFENSE PRACTICE WILLIAM GIBNEY , DIRECTOR OF CRIMINAL DEFENSE SPECIAL LITIGATION

Prepared by John Schoeffel Criminal Defense Special Litigation Unit This Report Also is Available at: www.legal-aid.org

April 1, 2009

TABLE OF CONTENTS

I. Introduction To The Proposal...... 1

II. The Need For Criminal Discovery Reform ...... 4

III. Proposed Statutory Language For A C.P.L. Article 245 (without commentaries). 13

IV. Proposed Statutory Language For A C.P.L. Article 245 (with commentaries)...... 27

V. Five Past Proposals For Discovery Reform In New York State...... 128

VI. Highlights Of Massachusetts’ Discovery Rules ...... 136

VII. Highlights Of New Jersey’s Discovery Rules ...... 138

VIII. Highlights Of Florida’s Discovery Rules ...... 140

IX. Highlights Of Colorado’s Discovery Rules...... 143

X. Highlights Of Arizona’s Discovery Rules...... 145

XI. Highlights Of Discovery Rules In Other Large States With Big Cities ...... 148

I. INTRODUCTION TO THE PROPOSAL

People litigating a civil claim in New York State, such as a debt or a contract dispute, 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 fourteen 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.” In contrast, large states with big cities that ordinarily are considered much 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 State to rectify this crucial defect in our criminal justice system.

If you are accused of a crime in New York State, your questions to your lawyer in the days and months while you await a trial (or while you consider plea bargaining) will focus largely on learning about the prosecution’s evidence. But to your dismay, unless you are lucky enough to be charged in one of the few counties where the District Attorney has rejected miserly statutory discovery, your lawyer probably will be unable to answer your inquiries except with generalities.

Almost always your lawyer will be unable to help you fully assess your options or to thoroughly advise you about the strength of the prosecution’s case. Instead, she will tell you the sentencing range you face if convicted of the offenses listed in the bare bones charging document. Then she will hazard carefully qualified generalizations about what evidence might be part of the prosecution’s case against you. 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 – she probably cannot assist you in weighing the advisability of accepting a guilty plea offer or formulating a specific trial strategy, other than with guesswork.

1 – INTRODUCTION TO THE PROPOSAL –

This happens every day in our State courts because New York’s criminal discovery rules are extraordinarily 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 the case; 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 even 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. 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. Instead, New York should join states like Arizona, Illinois and Massachusetts and enact a commonsense rule that prosecutors must automatically hand over all known information that tends to mitigate or negate the defendant’s guilt. 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.

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.”

The American Bar Association has long advocated broader and earlier criminal discovery. Many comparable large States with big cities employ such discovery rules. Florida and New Jersey have employed open and early discovery in criminal cases for decades. Other States have recently replaced their outdated criminal discovery rules with an expanded and liberalized approach, including Arizona, Massachusetts and North Carolina. New York should now join this trend.

It is in this context that this report 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. The report includes language for a

2 – INTRODUCTION TO THE PROPOSAL –

comprehensive new discovery statute called “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 on-going 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 strongly approve of such discovery practices and consider them to be efficient and fair.

Other noteworthy proposals for overhauling New York’s unfair and inefficient criminal discovery rules 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. A few District Attorneys even have voluntarily abandoned Article 240’s limited and inefficient disclosure requirements, and have successfully practiced forms of “open file” discovery for years.

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 in New York State will be more effectively and coherently accomplished by replacing Article 240’s framework with a new, comprehensive and internally consistent statute, which draws on the best features and language of modern discovery provisions that have worked in other comparable jurisdictions.

This report first sets forth in detail the main arguments in support of criminal discovery reform in New York State. Then it proposes the full statutory language for a new “Article 245.” Next it reiterates the provisions of “Article 245” with explanatory commentaries interspersed after each provision. It summarizes five past proposals for discovery reform in New York. Finally it surveys the discovery rules of several states that have successfully practiced more fair and more efficient criminal discovery.

3 – INTRODUCTION TO THE PROPOSAL –

II. THE NEED FOR CRIMINAL DISCOVERY REFORM

Committees of experts and practitioners have repeatedly urged the Legislature to fundamentally revise, modernize, and make more fair New York State’s restrictive criminal discovery rules. Those rules are set forth in Criminal Procedure Law Article 240. Lay people and even lawyers who practice in the civil context are commonly surprised to learn that a criminal defendant in New York is not entitled to basic discovery in advance of trial, such as police reports from the investigation of the case, the names and contact information of witnesses, and those witnesses’ prior testimony and statements, let alone the type of discovery available to civil litigants, such as depositions, so that he or she may intelligently investigate the case, prepare for trial, or decide whether to plead guilty. 1 In addition, rules regarding the disclosure of evidence known to the prosecution that potentially exculpates the defendant are entirely unformulated in the discovery statute and left to the various prosecutors’ interpretations of the evidence, and of whether or when it should be divulged.

The 2008 report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge “recommends that Article 240 and other sections of the Criminal Procedure Law be amended to effect broad reform of discovery in criminal proceedings .”2 The 2006 report of the Commission on the Future of Indigent Defense Services declared that “we could not ignore the obvious built-in inefficiency in existing discovery procedures and practices that causes delay and inhibits the efficient disposition of cases.”3 A wide-ranging study commissioned for that report observed: “Unfortunately, New York discovery rules do not require prosecutors to disclose important discovery material in a manner that allows for adequate preparation by the defense.”4 In some counties, District Attorneys have voluntarily abandoned Article 240’s limited and inefficient disclosure requirements, and a 2006 survey and report of the New York County Lawyers’ Association found that “those boroughs [of New York City] with more liberal disclosure report the most universal satisfaction with the process regardless of position within the system .”5

Such criticisms of Article 240 have persisted for decades. A study commissioned by the New York State Assembly Codes Committee in 1991 surveyed prosecutors and defense

1 A leading treatise identifies fourteen states – including New York – as providing criminal defendants with the least discovery in the nation. The group includes: “Alabama, Georgia, Iowa, Kansas, Kentucky, Louisiana, New York, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Wyoming.” See 5 Wayne R. LaFave et al., Criminal Procedure §20.2(b), n.31 (3d ed. 2008). 2 See “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 (emphasis added). 3 See Commission On The Future Of Indigent Defense Services, “Final Report to the Chief Judge of the State of New York” (2006), p. 24 (emphasis added). 4 See 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. 77-83, 146-48 at 78. 5 See New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006), p. 2 (emphasis added).

4 – THE NEED FOR CRIMINAL DISCOVERY REFORM –

lawyers in other large states with big cities (including California, Florida, Illinois, Michigan, New Jersey and Pennsylvania) regarding their states’ criminal discovery practices. It found that, in all of these jurisdictions at that time, the prosecution would – unlike in New York State – as a matter of practice disclose police reports and witnesses’ names, addresses, and statements early in the case. In fact, the study reported that: “Of the ten largest cities, New York City is the only one located in a state that does not provide for pre-trial disclosure of witness lists.”6 It determined that broad criminal discovery rules in comparable states did not result in a general problem of witness intimidation, and that not only defense lawyers but also prosecutors strongly approved of the discovery practices and found them to be efficient and fair. 7

The study concluded that “there are compelling arguments for why New York State should move in the direction [of liberalized discovery] that many other states pursued twenty years ago…. [T]he link between criminal discovery and witness intimidation is extremely weak.”8 It continued: “it is not only possible, but common, to have a system whereby the defense attorney has pre-trial access to witnesses while, at the same time, the state is able to safeguard the witness and interests of society. In Los Angeles, Chicago, Detroit, Philadelphia, Miami, San Diego and Newark, defense attorneys are, barring exceptional circumstances, able to interview witnesses prior to trial. In none of these cities did any interviewee (either prosecutor or defender) speak of a significant level of overall witness intimidation…. The only major jurisdiction studied [aside from New York State] where pre- trial disclosure of witness names is not required by statute or court rule is at the federal level. But there are significant differences between state prosecutions and federal prosecutions….” 9 Scholarly assessments have also found that the three major arguments historically raised against broader discovery in criminal cases ( i.e. , interference with witnesses, facilitation of perjury, and lack of reciprocal discovery from the defense) lack current validity. 10

6 See Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), p. 15 (emphasis added). 7 See id. at 68-82 [and Executive Summary, pp. 10-16]. 8 See id. at 112. 9 See id. at 91-92. In interviews summarized in the study, District Attorneys in jurisdictions that automatically provide early and broad pre-trial discovery reported that they had “no doubt” that it led to more guilty pleas, since as one of them commented: “a defense attorney can better convince the [defendant] to take a plea…. [Discovery] avoids the concern that the DA is selling the defendant a bill of goods.” See id. at 79, 82 [14, 16]. On the administrative costs of such a system, a District Attorney described that “the DA’s office and the police department have staff whose sole responsibility is providing discovery to the defense. This results in ‘real organizational efficiencies.’” See id. at 80 [14]. Another District Attorney commented: “we hire a few people at minimum wage to copy all files (except for attorney work-product). Copies are put in a central depository and public defenders just come by a window and pick the material up.” See id. at 79 [14]. 10 See, e.g. , 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, 1145-52 (2004); Milton C. Lee, “Criminal Discovery: What Truth Do We Seek,” 4 U.D.C. L. Rev. 7, 23 (1998)(“The concerns regarding witness intimidation, perjury, and one-way discovery have been refuted by the experience of the states”).

5 – THE NEED FOR CRIMINAL DISCOVERY REFORM –

The memorandum in support of a recent bill to reform New York State’s criminal discovery rules, which was proposed in 2008 by the Chairman of the Assembly Codes Committee (but not enacted), aptly summarized fundamental problems with Article 240:

New York State’s present criminal discovery rules are so restrictive they hamper the defendant’s ability to make critical decisions about whether to plea bargain or proceed to trial and how to adequately prepare a defense. As a result, defense attorneys turn to other systems to obtain pre-trial information, such as subpoenas duces tecum ; bills of particulars; pretrial hearings; voluntary disclosure forms; and informal discovery from the prosecutor. These methods often do not work, and also undermine the integrity of the 240 discovery process by upsetting the built in balance of the statute. A broader discovery system will eliminate the inequalities in the availability of information between the prosecution and the defense, thus providing for more equal justice, and less surprise at time of trial.

Furthermore … the current demand system [ i.e. , under which defendants must seek discovery by filing written “demands”] … is extremely inefficient often resulting in a game of trading paper and a waste of time and money. If the prosecution and defense are required to trade information immediately after arraignment, each side will be able to get a better overview of the adversary’s case and decide whether to plea bargain or proceed to trial. The ability of the parties to make these decisions will result in faster resolution of the case, less court time, less pre-trial detention of the defendant, and more money for the community. Moreover, the elimination of the demand system will further speed up cases by reducing time wasted in adjournments to review information received late, or to make motions for more information before trial. 11

That a few District Attorneys have responded to Article 240’s miserly and outdated disclosure rules by voluntarily offering early “open file” discovery provides a further reason for the Legislature to act.12 The resulting unequal treatment of defendants – depending solely

11 See New York State Assembly Bill A01119A (2008); see also Hon. James A. Yates, “Discovery Provision is Misunderstood,” N.Y.L.J. , 10/14/2003 at 2 (“As one of the principals involved in the drafting of Article 240, I feel compelled to point out that Article 240 was intended to advance, not restrict, discovery”). 12 See New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006), p. 2 (reporting “great variance in discovery practices from borough to borough” in New York City); 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 at 81 (“Stringent discovery practices exist in some but not all parts of the state; thus, similarly situated defendants in different parts of the state are not equally disadvantaged”).

6 – THE NEED FOR CRIMINAL DISCOVERY REFORM –

on the arbitrary distinction of the county of the alleged offense – impugns public respect for the fairness and uniform application of New York’s criminal justice laws. This disparity of treatment from jurisdiction to jurisdiction is most striking on either side of the East River in New York City. For decades the Manhattan District Attorney has rigidly restricted discovery to the minimal level of Article 240, whereas the Brooklyn District Attorney for years has championed a form of “open file” discovery that includes all police reports, witness testimony and police interviews.13 The Legislature now should unify discovery practices statewide by enacting fundamental reform of Article 240.

Many other states – including numerous comparable large states with big cites – have successfully employed systems of expedited and liberalized discovery in criminal cases. States that have provided broad criminal discovery to defendants for decades include Florida and New Jersey. 14 States that have replaced their restrictive and outdated criminal discovery systems in recent years with an expedited and liberalized approach include Arizona, Massachusetts and North Carolina. 15 The American Bar Association has long advocated the enactment of such broader criminal discovery rules.16 Furthermore, early and open discovery in criminal cases has consistently been praised in these states as not only effective and practicable, but also more fair and efficient. 17 In fact, while many states have adopted discovery systems that require more discovery from the prosecution in the past few decades, during that period no state has gone the other way and placed additional restraints on criminal discovery .18

13 See New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006). 14 See Fla. R. C.P. 3.220; N.J. CT. R. 3:13-3; see also Cal. Penal Code §1054; Ill. S. Ct. R. 412; Mich. CR 6.201; Pa. R. Crim. P. 573; see generally Milton C. Lee, “Criminal Discovery: What Truth Do We Seek,” 4 U.D.C. L. Rev. 7, n.94 (1998)(Florida’s criminal discovery rules were enacted in 1968 and New Jersey’s rules were enacted in 1973). 15 See Ariz. R. Crim. P. 15; Mass. R. Crim. P. 14; N.C. Gen. Stat. §15A; see also Colo. R. Crim. P. 16; The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), pp. 15-17; Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, n.140 (2006). 16 See “ABA Criminal Justice Section Standards – Discovery,” Standards 11-4.1(a) and 11.1.1(a) (advocating discovery “as early as practicable in the process,” to “provide the defendant with sufficient information to make an informed plea,” to “permit thorough preparation for trial and minimize surprise at trial,” and to “minimize the procedural and substantive inequities among similarly situated defendants”). 17 See, e.g. , Florida Supreme Court Criminal Discovery Commission, “Report of the Florida Supreme Court’s Commission on Criminal Discovery” (1989)(a panel comprised of representatives from the law enforcement community, prosecutors, public and private criminal defense lawyers, victims’ rights organizations, and the judiciary strongly endorsed broad discovery and advised against abandoning it); Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), pp. 68-92 (surveying prosecutors and defense lawyers in several states and finding consistent support); see also New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006), p. 2 (survey finding that “regardless of position within the system” parties support broad “open file” discovery as currently practiced in Brooklyn). 18 See Milton C. Lee, “Criminal Discovery: What Truth Do We Seek,” 4 U.D.C. L. Rev. 7, 19 (1998).

7 – THE NEED FOR CRIMINAL DISCOVERY REFORM –

It is more cost effective for a state to provide early and open discovery. As the 2008 Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge has explained, discovery reform would increase efficiency by making possible more “speedy and fair disposition of the charges, whether by diversion, plea, or trial; providing the accused with sufficient information to make an informed plea; permitting thorough trial preparation and minimizing surprise, interruptions and complications during trial; avoiding unnecessary and repetitious trials by identifying and resolving prior to trial any procedural, collateral, or constitutional issues; eliminating as much as possible the procedural and substantive inequities among similarly situated defendants; and saving time, money, judicial resources and professional skills by minimizing paperwork, avoiding repetitious assertions of issues and reducing the number of separate hearings.” 19

In particular, a key result of expedited and liberalized criminal discovery in other states has been that more defendants enter guilty pleas earlier in the case . Earlier guilty pleas save the state’s taxpayers money by: reducing the number of court appearances in those cases; reducing trips in which incarcerated defendants must be transported between jail and court in those cases; reducing overburdened courtroom dockets and obviating needless litigation; and freeing state-funded defense lawyers and prosecutors to handle more cases per attorney, when their caseloads are not bloated with dozens of cases (and their multifold attendant tasks) in which the defendant awaits discovery simply to confirm the existence of a prosecution witness or the strength of the prosecution’s case and then accepts a long-pending plea offer. By contrast, when the defense lawyer is promptly given the discovery materials, he or she can intelligently advise the defendant concerning the strength of the prosecution’s case and, when appropriate, demonstrate for the defendant using tangible proof that accepting the plea is his or her best option. 20

Providing early and open discovery in criminal cases is also more fair and it helps avert wrongful convictions. When the prosecution withholds the most significant discovery materials until the start of a trial or a suppression hearing (which is the timetable for disclosure of witnesses’ statements under Article 240) often the defense lawyer cannot even venture an opinion as to the defendant’s best course of action, let alone develop an informed strategy. 21 This needlessly unjust predicament is described in disturbing real life accounts by

19 See “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. 3-4. 20 See, e.g. , The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), p. 20 (quoting a North Carolina District Attorney regarding that state’s adoption in 2004 of a system of mandated “open file” discovery: “[Open-file discovery] is more likely to generate guilty pleas. If you have good evidence, the lawyer tells the client to plead guilty”); id. at 9 (“Early discovery … will likely result in fewer trials and save states potentially millions of dollars. Automatic, mandatory discovery also leads to greater efficiency in the criminal justice system by reducing the need for pretrial discovery motions, thereby saving attorneys, judges, and court personnel time and expense”); 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, 1154-55 (2004)(“the costs of open file discovery are very low … there will be a corresponding savings in the probability that pleas will happen earlier if the defendant has an opportunity to view the government’s evidence”); see also the statements of District Attorneys quoted in footnote 9, supra . 21 See C.P.L. §§240.45(1)(a), 240.44(1); see also 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. 77-83 at 77-78 (“we were surprised to learn that many prosecutors across the state routinely fail to disclose 8 – THE NEED FOR CRIMINAL DISCOVERY REFORM –

former defense practitioners.22 Moreover, as all experienced investigators know, conducting an early investigation of the case – when witnesses are still available, their memories are fresh, and physical evidence has not yet been lost or destroyed – is critically important for finding and preserving any exculpatory evidence. Yet frequently the defense lawyer has no way to meaningfully investigate until receiving the discovery materials from the prosecution. A commentator personally familiar with New York State defense practice describes the problem in an incisive critique of Article 240:

In many cases … defense counsel do not have the tools to investigate the facts because their clients cannot give them the information they need to begin an investigation. This situation is presented most starkly with an innocent defendant, who knows nothing about the facts of the case against him and thus has no information to share….

While the problem of acquiring adequate information for investigation in the case of an innocent defendant presents a compelling example that resonates with our notions of fundamental fairness in the adversary system, the problem exists well outside of the innocence context. Assuming that defense counsel can garner all necessary information from her client ignores the fact that many defendants suffer from mental illness or retardation, drug or alcohol abuse, impaired memory, and other impediments which might prevent them from being an adequate, sole source for investigative leads. It also assumes that the defendant (even one who is guilty) possesses specific information, such as names and addresses of potential witnesses, which is necessary for defense counsel to adequately investigate the case. It ignores the fact that incarcerated defendants cannot bring their attorneys to relevant people or places when they lack this information, and instead, perhaps only know someone by nickname or by sight.23

important discovery material until hours or minutes before a contested hearing or trial, severely hampering the ability of defenders to prepare an adequate defense…. When critical and basic information such as police reports are withheld from the defense, such case preparation is made much more difficult and in some cases impossible. Although discovery practices also disadvantage private attorneys, the burden is greater on the indigent defense lawyers”). 22 See, e.g. , Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 541-48 (2006); 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, 1097-04, 1130-39 (2004); Milton C. Lee, “Criminal Discovery: What Truth Do We Seek,” 4 U.D.C. L. Rev. 7, 7-8 (1998). 23 See 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, 1102-03 (2004); see also id. at 1124- 40; 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. 79-82.

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The advent of DNA technology and DNA exonerations of many convicted prisoners in recent decades have confirmed that restrictive discovery practices do indeed contribute to wrongful convictions. Largely this is because late and limited discovery like under Article 240 foils competent defense investigation and trial preparation, compromising the reliability of the adversary process.24 Moreover, currently New York State prosecutors are not even required to disclose all of the evidence in their knowledge and possession which tends to negate or to mitigate the level of the defendant’s guilt. Instead, prosecutors can and do choose to disclose only the far narrower category of “materially” exculpatory evidence – that is, just that exculpatory evidence which, in the prosecutor’s own assessment, creates a “reasonable probability” that the defendant would be acquitted if it were turned over.25 Among other deficiencies, this rule is inadequate because prosecutors frequently do not know the content or context of the likely defense theory of the case at the time disclosure decisions are made. Hence, they may have little basis for making accurate materiality decisions.

It is high time for New York to join other states in abandoning this backwards policy and to require prosecutors automatically to disclose all known potentially exculpatory and mitigating information, without further speculation as to whether it would ultimately be “material” to a finding of guilt.26 Not only would this substantially improve the defense’s ability to investigate exculpatory leads and to incorporate exculpatory information into its case – and thus ensure more accurate verdicts – but it would have the added benefit of simplifying prosecutors’ jobs by eliminating the need to continually make discretionary judgment calls about the cumulative weight of the known potentially exculpatory information.

24 See, e.g. , The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), pp. 10-15; Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 561-73 (2006). 25 See Christopher Deal, “ Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury,” 82 N.Y.U. L. Rev. 1780 (2007); Eugene Cerruti, “Through the Looking-Glass at the Brady Doctrine: Some New Reflections on White Queens, Hobgoblins, and Due Process,” 94 Ky. L. J. 211 (2005); see, e.g. , U.S. v. Coppa , 267 F.3d 132, 135 (2d Cir. 2001)(“[constitutional due process] does not, however, require the prosecution to disclose all exculpatory and impeachment material; it need disclose only material that, if suppressed, would deprive the defendant of a fair trial”); accord People v. Vilardi , 76 N.Y.2d 67, 77 (1990); Kyles v. Whitley , 514 U.S. 419, 434 (1995). 26 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); Minn. R. Crim. P. 9.01 Subd. 1 (6); Mo. R. Crim. P. 25.03(A)(9); Mich. CR 6.201(B)(1); Cal. Penal Code §1054.1(e); see also New York State Rules of Professional Conduct, Rule 3.8(b) – “Special Responsibilities of Prosecutors and Other Government Lawyers” (effective April 1, 2009)(New York’s recently adopted ethics rules direct prosecutors to “make timely disclosure” of all known evidence or information “that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence”); “ABA Criminal Justice Section Standards – Discovery,” Standard 11-2.1(a)(viii); DR 7-103(B). Notably, the Advisory Committee on Criminal Rules of the Judicial Conference of the United States forwarded for publication in 2007 a proposal to require federal prosecutors to automatically disclose all known exculpatory and impeachment evidence. See Federal Judicial Center, “ Brady v. Maryland Material in the United States District Courts: Rules, Orders, and Policies” (2007), pp. 23-24, available at www.uscourts.gov/rules/BradyFinal2007 . A few United States District Courts also have rules requiring the disclosure of such information “without regard to materiality.” See id. at 12-13.

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Expedited discovery also forces prosecutors to review their evidence at a much earlier stage in the proceedings, and thus to consider more promptly the relative strengths and weaknesses of the case. This results in more appropriate and better informed guilty plea offers, and, when criminal prosecution is found unmerited (or the initially designated highest charges are deemed unfounded), it causes a more expeditious dismissal or reduction of charges.27 The innocent or undeserving will not suffer (and the state will not pay for) unduly prolonged incarceration, and justice will be better served.

The rationale that has long supported early and open discovery in civil cases in New York State is that a judicial system under which both parties know and can develop all of the relevant facts is essential to fair litigation and that surprise is undesirable.28 The same truism applies equally in criminal cases, where liberty is at stake.29 Like many other comparable large states with big cities that have abandoned their outdated and unfair criminal discovery rules, New York State at long last should enact fundamental discovery reform.30

* * * Grafting automatic, early, and broad discovery onto Article 240’s inconsistent statutory framework that lacks those basic features will, however, result in an awkward and incoherent statutory scheme. Instead, a new discovery statute that achieves the goals of full criminal discovery reform – drawing upon and supplementing the best features of modern statutory provisions that have worked in other comparable states – should be enacted. This report, therefore, avoids piecemeal revisions of Article 240, such as the proposals in the

27 See Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 550-53 (2006). 28 See C.P.L.R. §3101(a)(requiring “full disclosure” of non-privileged matters in civil cases); see also Fed. R. Civ. P. 26; Hickman v. Taylor , 329 U.S. 495, 507 (1947)(“No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession”). 29 See U.S. v. Nixon , 418 U.S. 683, 709 (1974)(“The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, with the framework of the rules of evidence”); People v. Copicotto , 50 N.Y.2d 222, 226 (1980)(“the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence. In short, pretrial discovery by the defense and prosecution contributes substantially to the fair and effective administration of justice”). 30 See Milton C. Lee, “Criminal Discovery: What Truth Do We Seek,” 4 U.D.C. L. Rev. 7, 8 (1998) (“Approximately thirty-seven states currently have discovery statutes that are more progressive than the federal [criminal discovery rules]”); Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 578 (2006)(“Almost half of the states allow pretrial discovery of the identities of prosecution witnesses and their prior statements”); The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), p. 8 (“As of 2004, approximately one-third of the states (including California, Florida, New Jersey, Illinois, Michigan, and Pennsylvania) have implemented discovery rules modeled on the [broad and early disclosure model of the] ABA standards”).

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Report of the Advisory Committee on Criminal Law and Procedure and the bill proposed by the Chairman of the Assembly Codes Committee.31

Rather, it proposes the repeal of Article 240 and the enactment of a comprehensive new system of criminal discovery rules: “Article 245.” This new article would include key provisions that will maintain the effectiveness of law enforcement and the integrity and safety of witnesses, as has been achieved for years in states with comparable cities like “Los Angeles, Chicago, Detroit, Philadelphia, Miami, San Diego and Newark.” 32 But it would eliminate root and branch the gross unfairness and inefficiencies of discovery practice under Article 240.

The next section of this report, Section III, sets forth the complete statutory language for the proposed new Article 245. Section IV includes the same statutory language for an Article 245, but with explanatory Commentaries after each provision that summarize and explain its purpose, its contents, and the current New York law it would supersede. Seven other sections are included in the report for background context when evaluating various possibilities for discovery reform. Specifically, Section V summarizes five past proposals for discovery reform in New York, and Sections VI through XI summarize highlights of the discovery rules in various other states (Massachusetts, New Jersey, Florida, Colorado, Arizona, and several other large states with big cities).

31 See “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, 122-123, 138-145, 297-298; New York State Assembly Bill A01119A (2008). 32 See Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), p. 91; 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”); see also 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 (advising prosecutors to disclose, inter alia , “any” known information “which tends to negate or reduce the guilt of the defendant pertaining to the offense charged,” and to provide “names and addresses” of intended witnesses; the 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”).

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III. PROPOSED STATUTORY LANGUAGE FOR A NEW C.P.L. ARTICLE 245 (WITHOUT COMMENTARIES)

Note: This section of the report includes only the statutory language for the proposed new Article 245. For uninterrupted review, it omits the explanatory Commentaries that are interspersed after each of the provisions in the following section of the report, Section IV. (Those Commentaries elucidate each provision’s purpose, its contents, and the current New York law it would supersede.)

Discovery

245.10. Timing of Discovery

(1.) Prosecution’s Performance of Obligations. (i) The prosecution shall perform its initial discovery obligations under subdivision one (1) of section 245.20 as soon as practicable but not later than fifteen (15) calendar days after the defendant’s arraignment on an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor, except that portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70; but the defendant must be notified in writing that information has not been disclosed under a particular section. (ii) The prosecution shall perform its supplemental discovery obligations under subdivision two (2) of section 245.20 as soon as practicable but not later than fifteen (15) calendar days before trial. (iii) Upon timely defense request, the prosecution shall disclose materials under subdivision (1)(a) of section 245.20 to any defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of a prospective or pending grand jury proceeding, no later than forty-eight (48) hours before the time scheduled for the defendant to testify at a grand jury proceeding pursuant to subdivision five (5) of section 190.50.

(2.) Disclosure Prior to a Guilty Plea Deadline. If the prosecution has imposed a guilty plea deadline, but does not provide the defendant with material disclosure listed in subdivision one (1) of section 245.20 at least thirty (30) calendar days before the guilty plea deadline, the court, upon motion of the defendant, shall consider the impact of the failure to provide such disclosure on the defendant’s decision to accept or reject a guilty plea offer. If the court determines that the prosecutor’s failure to provide such disclosure materially affected the defendant’s decision to reject a guilty plea offer and the prosecutor declines to reinstate that lapsed guilty plea offer, the presumptive minimum remedy or sanction shall be preclusion from admission at trial of any evidence not disclosed at least thirty (30) calendar days before the deadline. If the court determines, upon motion of the defendant made prior to sentencing, that the prosecutor’s failure to provide disclosure listed in subdivision (1)(j) of section 245.20 materially affected the defendant’s decision to accept a guilty plea offer, the

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court shall vacate the guilty plea and further proceedings shall be had on the accusatory instrument.

(3.) Defendant’s Performance of Obligations. The defendant shall perform his or her discovery obligations under subdivision three (3) of section 245.20 not later than thirty (30) calendar days after being served with the prosecution’s Certificate of Compliance pursuant to subdivision one (1) of section 245.50, except that portions of materials claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under section 245.70; but the prosecution must be notified in writing that information has not been disclosed under a particular section.

245.20. Automatic Discovery

(1.) Initial Discovery for the Defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy or photograph, each of the following items and information when it is in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control:

(a) All written and recorded statements, and the substance of all oral statements, made by the defendant or a co-defendant which relate to the subject matter of the case or are otherwise relevant.

(b) All transcripts of the testimony of a person who has testified before any grand jury when the testimony relates to the subject matter of the case or is otherwise relevant.

(c) The names, known aliases, addresses and birth dates of all persons, other than law enforcement personnel, whom the prosecutor knows to have evidence or information relevant to any offense charged or to a potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses.

(d) The name, rank, shield number and business address of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to a potential defense thereto.

(e) All statements, written or recorded or summarized in any writing or recording, which relate to the subject matter of the case or are otherwise relevant and were made by persons whom the prosecutor knows to have evidence or information relevant to any offense charged or to a potential defense thereto.

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within the time period specified in subdivision one (1) of section 245.10, that period shall be stayed without need for a motion pursuant to section 245.75; except that the disclosure shall be made as soon as practicable and not later than sixty (60) calendar days before trial, unless an order is obtained pursuant to section 245.75.

(g) All police reports, law enforcement agency reports, police officer memo book entries and log entries and notes, intended exhibits, tapes and other electronic recordings, photographs, drawings, and tangible objects which relate to the subject matter of the case or are otherwise relevant, including any photograph, photocopy or reproduction made by or at the direction of law enforcement personnel of any property prior to its release pursuant to section 450.10 of the penal law.

(h) All reports, documents, results and information concerning scientific tests and experiments and comparisons, and physical and mental examinations of any person, which relate to the subject matter of the case or are otherwise relevant.

(i) All tangible objects obtained from or allegedly belonging to the defendant or a co- defendant, including a designation by the prosecutor as to which tangible objects were physically or constructively possessed by the defendant and were recovered during a search or seizure by a police officer or other public servant or an agent thereof, and which tangible objects were recovered by a police officer or other public servant or an agent thereof after allegedly being abandoned by the defendant. If the prosecution intends to prove the defendant’s possession of any tangible objects solely by means of a statutory presumption of possession under section 220.25 or 265.15 of the penal law or another section, it shall also designate that intention as to each such object. In addition the prosecutor shall designate the locations from which all tangible objects were recovered.

(j) All evidence and information which tends to negate the defendant’s guilt or to mitigate the defendant’s culpability as to a charged offense, or which tends to support a potential defense thereto, or which tends to support a motion to suppress evidence on constitutional grounds, or which would tend to reduce the punishment of the defendant. (i) Such evidence or information includes but is not limited to: an overt or tacit leniency deal with a potential prosecution witness or an informant; a potential prosecution witness’s or an informant’s prior inconsistent statements; information indicating a potential prosecution witness’s or an informant’s possible bias, interest, hostility, or reasons to fabricate; information that tends to undercut the believability of a potential prosecution witness’s or an informant’s factual account; prior conduct, misconduct and criminal acts that tend to undercut the credibility of a potential prosecution witness or an informant; and information that tends to undercut the proof of an element of a charged offense or that otherwise tends to indicate the defendant may not be guilty. (ii) Disclosure is required even if the prosecution doubts the believability or usefulness to the defendant of the evidence or information, or believes it can be reconciled with the prosecution’s other evidence; or if it has both an inculpatory and an exculpatory effect; or if it relates to a potential defense different from that which has been announced or is being pursued; or if it has not been memorialized or recorded in tangible form; or if it is not admissible as evidence in its

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present form; or if it is known to the defendant; or if it relates to a person whom the prosecution does not intend to call at trial but who possesses exculpatory information.

(k) A summary of all corporeal or non-corporeal or voice identification procedures, including not only procedures in which an eyewitness identified the defendant but also procedures in which an eyewitness did not identify the defendant when the opportunity for such identification existed. The summary shall include: (i) the date, time, location, type, and result of each procedure; (ii) the names of all persons present at each procedure if known to law enforcement; (iii) the name and address of each eyewitness at each procedure; (iv) the number and source of all photographs or lineup participants used in each procedure; (v) a copy of all photographs, photographic arrays, and photographs taken of all lineups viewed by an eyewitness; (vi) the descriptions of suspects entered into an electronic or computer photographic identification system, and a saved collection of the photographic images generated by each description and viewed by each eyewitness; (vii) whether the procedure was simultaneous or sequential; (viii) all statements made in the presence of or by each eyewitness that are relevant to the issue of identity or to the fairness or accuracy of the procedure, including the words used by an eyewitness in making any identification and any words describing his or her certainty or uncertainty in an identification at the time it was made; (ix) all statements made by each eyewitness regarding the role in the charged offense of a person identified and any other relationship between them; (x) whether the eyewitness selected a different person as the perpetrator or indicated a belief that he or she could not identify the perpetrator; (xi) whether before the procedure the eyewitness was instructed that the perpetrator might or might not be present; and (xii) whether the administrator of each procedure knew which person was the suspect, and whether before the procedure the eyewitness was instructed that the administrator did not know which person was the suspect. If the prosecution possesses information that an eyewitness made a corporeal or non- corporeal or voice observation of the defendant on any other occasion after the time of the charged offense but before trial, regardless of the involvement or lack of involvement of a police officer or other public servant in that observation, it shall also disclose that information.

(l) A summary of all promises, rewards and inducements made to persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses, and copies of all documents relevant to a promise, reward and inducement.

(m) Whether the prosecution has any evidence or information that has been provided by a confidential informant or a jailhouse informant which relates to the subject matter of the case or is otherwise relevant.

(n) Whether a search warrant has been executed and all documents relating thereto, including but not limited to the warrant, the warrant application, all supporting affidavits, a police inventory of all property seized under the warrant, and a transcript of all testimony or other oral communications offered in support of the warrant application.

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(o) Whether there has been any electronic surveillance, including but not limited to wiretapping or video surveillance, of a residence or business or telephone or computer or other electronic or digital device of the defendant, or of conversations to which the defendant or a co-defendant was a party, and all recordings, transcripts, documents, warrants and warrant application materials relating thereto.

(p) The approximate date, time and place of the offense(s) charged and of the defendant’s seizure and arrest.

(q) Whether a charged offense was seen by a police officer or other public servant from a police observation post and, if so, whether visual magnification or enhancement equipment was used. The prosecution shall provide counsel for the defendant with information sufficient to undertake a reasonable investigation of the location of the police observation post on condition that such information shall be available only to counsel for the defendant and defense personnel and not to the defendant if the observation post is still used; except that a different protective order pursuant to section 245.70 may be issued by the court for good cause shown.

(r) All information or material required to be gathered or memorialized pursuant to subdivisions one (1) and two (2) of section 245.45.

(s) Any documentation that the prosecutor has obtained that relates to the subject matter of the case or is otherwise relevant, concerning: (i) cellular telephone account information and records, cellular telephone call data and records, cellular telephone text message data and records, recordings of cellular telephone messages, records of cellular telephone text messages, records of cellular telephone photographs, and cellular telephone tower data and records; (ii) email account information and records, and records of email messages and instant messages; (iii) internet service provider account information and records; (iv) internet social network account information, records and postings; (v) records of internet instant messages, web pages and web postings; (vi) account information, records and data from a personal digital assistant device or other electronic or digital device used for communication or for recording or storing information; (vii) data, records and documents obtained from a computer hard drive; (viii) account information, records and data from an electronic toll or mass transit system fee payment device; and (ix) similar documentation that relates to other electronic or digital communication, recording, or storage devices.

(t) Any documentation that the prosecutor has obtained regarding prior and pending accusatory instruments, convictions, dispositions, and the probationary status of all defendants and all witnesses designated as potential prosecution witnesses pursuant to subsection (c). If counsel for the defendant lacks access to a database by which to obtain the complete criminal record of all defendants and all witnesses designated as potential prosecution witnesses, the prosecutor also shall either (i) provide counsel for the defendant with access to such a database, or (ii) provide the defendant with that information.

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(u) In any prosecution alleging a violation of the vehicle and traffic law, where the defendant is charged by indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor, the most recent record of inspection, calibration and repair of machines and instruments utilized to perform any scientific tests and experiments and the certification certificate, if any, held by the operator of the machine or instrument, and all other disclosures required under this article.

(v) In any prosecution alleging a violation of sections 156.05 or 156.10 of the penal law, the time, place and manner of notice given pursuant to subdivision eight (8) of section 156.00 of the penal law.

(2.) Supplemental Discovery for the Defendant. The prosecution shall disclose to the defendant a list of all misconduct and criminal acts of the defendant not charged in the indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor, which the prosecution intends to use at trial for purposes of impeaching the credibility of the defendant or as substantive proof of any material issue in the case.

(3.) Reciprocal Discovery for the Prosecution. (i) The defendant shall, subject to constitutional limitations, disclose to the prosecution, and permit the prosecution to discover, inspect, copy or photograph, any material and relevant evidence within the defendant’s or counsel for the defendant’s possession or control that is discoverable under subdivisions (1)(f), (1)(g), (1)(h) and (1)(l) of section 245.20, which the defendant intends to offer at trial, and the names, known aliases, addresses, birth dates, and all statements, written or recorded or summarized in any writing or recording, of those persons other than the defendant whom the defendant intends to call as witnesses at trial. (ii) Disclosure of the name, known aliases, address, birth date, and all statements, written or recorded or summarized in any writing or recording, of a person whom the defendant intends to call as a witness for the sole purpose of impeaching a prosecution witness is not required until after the prosecution witness has testified at trial. (iii) If in the exercise of reasonable diligence the reciprocally discoverable information under subdivision (1)(f) of section 245.20 is unavailable for disclosure within the time period specified in subdivision three (3) of section 245.10, that period shall be stayed without need for a motion pursuant to section 245.75; except that the disclosure shall be made as soon as practicable and not later than thirty (30) calendar days before trial, unless an order is obtained pursuant to section 245.75.

(4.) Stay of Automatic Discovery; Remedies and Sanctions. Subdivisions one (1) and three (3) of section 245.10 and subdivisions one (1), two (2), and three (3) of section 245.20 shall have the force and effect of a court order, and failure to provide discovery pursuant to them may result in application of any remedies or sanctions permitted for non-compliance with a court order under section 245.85. However, if in the judgment of either party good cause exists for declining to make any of the disclosures set forth above, it may move for a protective order pursuant to section 245.70 and production of the item shall be stayed pending a ruling by the court. The opposing party shall be notified in writing that information has not been disclosed under a particular section. When some parts of material or information are discoverable but in the judgment of a party good cause exists for declining

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to disclose other parts, the discoverable parts shall be disclosed and the disclosing party shall give notice in writing that nondiscoverable parts have been withheld.

(5.) Notice and Preservation of Evidence. (i) Upon receipt of information that any item described in subparagraphs (1)(a)-(v) of section 245.20 exists, except that it is not within the possession, custody or control of the prosecution or persons under the prosecution’s direction or control, the prosecution shall expeditiously notify the defendant of the existence of the item and of all information known to the prosecutor concerning the item’s location and the identity of any persons possessing it. (ii) At any time, a party may move for an order to any individual, agency or other entity in possession, custody or control of items which relate to the subject matter of the case or are otherwise relevant, requiring that such items be preserved for a specified period of time. In addition, at any time, the defendant may move for an order to any individual, agency or other entity in possession, custody or control of a crime scene that relates to the subject matter of the case or is otherwise relevant, requiring that counsel for the defendant be granted prompt and reasonable access to inspect, photograph or measure that crime scene, and that the condition of the crime scene remain unchanged in the interim. The court shall hear and rule upon such motions expeditiously. The court may modify or vacate such orders upon a showing that preservation of particular evidence, or granting access to a particular crime scene, will create significant hardship, on condition that the probative value of that evidence or that location is preserved by a specified alternative means.

245.25. Material Held by Other Governmental Personnel

Upon the defendant’s request and designation of material or information which would be discoverable under section 245.20 if in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control, but which is, in fact, in the possession, custody or control of other governmental personnel, the prosecutor shall use due diligence and make good faith efforts to cause such material or information to be made available to the defendant, and if the prosecutor’s efforts are unsuccessful and such material or information or other governmental personnel are subject to the jurisdiction of the court, the court, upon motion of the defendant, shall issue suitable subpoenas or orders to cause such material or information to be made available for disclosure to the defendant.

245.30. Discretionary Discovery by Order of the Court

The court in its discretion may, upon a showing by the defendant that the request is reasonable and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, order the prosecution, or any individual, agency or other entity subject to the jurisdiction of the court, to make available for disclosure to the defendant any material or information which potentially relates to the subject matter of the case or is otherwise relevant. A motion under this section must be on notice to any person or entity affected by the order. The court may, upon request of any person or entity affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive. The court may permit a party seeking or opposing a discretionary order of discovery under this section, or another affected person or entity, to submit papers or testify ex parte or in camera.

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Any such papers and a transcript of such testimony shall be sealed and shall constitute a part of the record on appeal.

245.35. Depositions

(1.) Availability; Use. At any time after the filing of an accusatory instrument, the court in its discretion may, upon motion of any party, order the examination of any person except the defendant upon oral deposition if the party shows that the person’s testimony is material to the case or necessary adequately to prepare a defense, and that the person will not cooperate in granting a personal interview. A person’s statements in a deposition under this section may be used in subsequent proceedings in the same manner as other out-of-court statements.

(2.) Motion for Taking Deposition; Notice; Service. A motion for deposition shall specify the time and place for taking the deposition and the name and address of each person to be examined, together with designated papers, documents, tapes or other electronic recordings, photographs or other tangible objects, not privileged, to be produced at the same time and place. The court may change such terms and specify any additional conditions governing the conduct of the proceeding. The moving party shall notice the deposition in the manner provided for in civil actions and serve a subpoena upon the deponent, specifying the terms and conditions set forth in the court’s order granting the deposition, and give reasonable notice of the deposition in writing to every other party.

(3.) Manner of Taking. Except as otherwise provided herein or by order of the court, depositions shall be taken in the manner provided in civil actions. With the consent of the parties, the court may order that a deposition be taken on written interrogatories in the manner provided in civil actions. Any statements, written or recorded or summarized in any writing or recording, of the witness being deposed which are in the possession, custody or control of any party shall be made available for examination and use at the taking of the deposition to any party. The deposition shall be recorded by an electronic recording, which must include not only audio but also visual recording, unless the court orders otherwise, or the parties stipulate that it shall be recorded in another manner. If a deposition is recorded by other than a certified court reporter, the party taking the deposition shall provide every other party with a copy of the recording within fifteen (15) calendar days after the taking of the deposition or not less than ten (10) calendar days before trial, whichever is earlier. The parties may stipulate, or the court may order, that a deposition be taken by telephone and recorded. All parties and counsel shall have a right to be present at the deposition. A defendant shall not be physically present at a deposition, except on stipulation of the parties or by order of the court based upon a showing of good cause.

245.40. Non-Testimonial Evidence from the Defendant

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material evidence will be found, and that the method used to secure it is safe and reliable, require a defendant to provide non-testimonial evidence, including to:

(a) Appear in a lineup;

(b) Speak for identification by a witness or potential witness;

(d) Pose for photographs not involving reenactment of an event;

(e) Permit the taking of samples of the defendant’s blood, hair, and other materials of the defendant’s body that involves no unreasonable intrusion thereof;

(f) Provide specimens of the defendant’s handwriting; and

(g) Submit to a reasonable physical or medical inspection of the defendant’s body.

(2.) Limitations. This section shall not be construed to alter or in any way affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument, consistent with such rights as the defendant may derive from the New York Constitution or the United States Constitution. This section shall not be construed to alter or in any way affect the administration of a chemical test where otherwise authorized. An order pursuant to this section may be denied, limited or conditioned as provided in section 245.70.

245.45. Preservation of Evidence

(1.) Apparently Material Witness or Physical Evidence. (i) When police officers or other law enforcement personnel participate in the investigation of an apparent criminal incident, and provided that it is practicable under the circumstances, they shall request and memorialize contact information for an apparently material witness of whom they are aware, and they shall gather or memorialize apparently material physical evidence of which they are aware, whenever the witness or physical evidence appears to be of such a nature and potential significance that an accused may be unable to obtain other evidence, possessing a comparable potential to mitigate or negate his or her guilt were it found to be exculpatory, by other reasonably available means unless these actions are taken to preserve the availability of the witness or the physical evidence. This subdivision does not, however, require that police officers or other law enforcement personnel take and preserve a second sample of the defendant’s breath for later testing by the defendant in cases arising under the vehicle and traffic law. (ii) If the prosecution is unable to disclose such material to the defendant pursuant to subdivision (1)(r) of section 245.20 due to a failure to comply with this obligation by police officers or by other law enforcement personnel, the court, upon motion of the defendant showing that the witness or evidence has been irretrievably lost and that the defendant cannot obtain other evidence, possessing a comparable potential to mitigate or

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negate his or her guilt were it found to be exculpatory, by other reasonably available means, shall impose an appropriate remedy or sanction pursuant to section 245.85.

(2.) Videotape of Interview at Police Station or Other Facility of Detention. (i) No oral, written, or sign language statement of a suspect made during an interview at a police station or other facility of detention shall be admissible as substantive evidence against that person in any criminal proceeding unless an electronic recording, which must be focused upon both the questioner and the suspect throughout and must include not only audio but also visual recording, is made of the complete interview. Interviewing within the meaning of this subdivision does not include routine pedigree inquiry or statements made in open court or before a grand jury. Brief periods of recess during which all interviewing ceases do not constitute an impermissible interruption of the complete interview, but the starting time of such a recess and the resumption time of the interview shall be memorialized. The interviewer need not inform the suspect that an electronic recording is being made. A suspect’s refusal to participate in an interview because it is electronically recorded, if that refusal itself is electronically recorded as provided herein, shall render this subdivision inapplicable to all statements made after the refusal if the court finds beyond a reasonable doubt that it was voluntary and unequivocal. Law enforcement personnel shall not expressly or implicitly encourage the suspect to give such conditional consent to an interview in lieu of a completely recorded interview. (ii) If the court finds, by a preponderance of the evidence, that the defendant was subjected to earlier interviewing at a police station or other facility of detention in violation of this subdivision, then upon defense request when statements made in compliance with this subdivision are admitted at trial as evidence against the defendant, the court shall give the following instruction to the jury at the time of their admission and again in its final instructions on the law: “New York State law requires that all interviews of a suspect at a police station or other facility of detention must be recorded by videotape or other visual recording, because this enhances the reliability of the process under which the statements are obtained and allows the jury to more fairly assess the statements. A judge has found in this case that earlier interviewing occurred at the police station or other facility of detention that was not recorded. Because of this failure to comply with the rule that all such interviews must be recorded, the statements by the defendant that you have seen should be weighed with great caution and care.” (iii) Notwithstanding any other provision of this subdivision, an oral, written, or sign language statement of the defendant made during an interview at a police station or other facility of detention is admissible as evidence against the defendant in a criminal proceeding in this state if the statement was obtained in another state in compliance with the laws of that state, or by a federal law enforcement officer in this state or another state in compliance with the laws of the United States.

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electronic recordings of 911 telephone calls and police radio transmissions made in connection with the case are preserved throughout the pendency of the case. Upon the defendant’s timely request and designation of a specific electronic recording of a 911 telephone call, the prosecution shall also expeditiously take whatever reasonable steps are necessary to ensure that it is preserved throughout the pendency of the case. (ii) If the prosecution fails to disclose such an electronic recording to the defendant pursuant to subdivision (1)(g) of section 245.20 due to a failure to comply with this obligation by police officers or other law enforcement or prosecution personnel, the court upon motion of the defendant shall impose an appropriate remedy or sanction pursuant to section 245.85.

245.50. Certificates of Compliance

(1.) By the Prosecution. When the prosecution has provided all discovery required by subdivision one (1) of section 245.20 or by court order, it shall file with the court and serve upon the defendant a Certificate of Compliance. The certificate shall state that, to the best of the prosecutor’s knowledge and after making reasonable inquiries and exercising due diligence, he or she has disclosed and made available all material and information subject to discovery, and shall identify each item provided. In addition the certificate shall state that, to the best of the prosecutor’s knowledge and after making reasonable inquiries and exercising due diligence, (i) he or she has complied with these obligations with respect to all material and information in the custody or control of all police officers and other persons who have participated in investigating or evaluating the case; and (ii) he or she has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any evidence or information within subdivision (1)(j) of section 245.20, including such evidence or information that was not reduced to writing or otherwise memorialized or preserved as evidence, and has disclosed any such information to the defendant. If additional discovery is subsequently provided pursuant to section 245.60, a supplemental certificate shall be filed with the court and served upon the defendant identifying the additional material and information provided.

(2.) By the Defendant. When the defendant has provided all discovery required by subdivision three (3) of section 245.20 or by court order, counsel for the defendant shall file with the court and serve upon the prosecution a Certificate of Compliance. The certificate shall state that, to the best of counsel for the defendant’s knowledge and after making reasonable inquiries and exercising due diligence, he or she has disclosed and made available all material and information subject to discovery, and shall identify each item provided. If additional discovery is subsequently provided pursuant to section 245.60, a supplemental certificate shall be filed with the court and served upon the prosecution identifying the additional material and information provided.

245.55. Flow of Information

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information which tends to negate the defendant’s guilt or to mitigate the defendant’s culpability as to a charged offense, or which tends to support a potential defense thereto, or which tends to provide a basis for a motion to suppress evidence on constitutional grounds, or which would tend to reduce the punishment of the defendant.

(2.) Provision of Law Enforcement Agency Files. Upon request by the prosecution, a New York State law enforcement agency shall make available to the prosecution a complete copy of its complete files related to the investigation of the case or the prosecution of the defendant for compliance with this article.

245.60. Continuing Duty to Disclose

If either the prosecution or the defendant subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material or information as required for initial discovery under this article. This provision also requires expeditious disclosure by the prosecution of material or information that became relevant to the case or discoverable based upon reciprocal discovery received from the defendant pursuant to subdivision three (3) of section 245.20.

245.65. Work Product

This article does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories or conclusions of the adverse party or its attorney or the attorney’s agents, or of statements of a defendant, written or recorded or summarized in any writing or recording, made to the attorney for the defendant or the attorney’s agents.

245.70. Protective Orders

Upon a showing of good cause, the court may at any time order that discovery or inspection be denied, restricted, conditioned or deferred, or make such other order as is appropriate. The court may, for good cause shown, grant discovery to a defendant on the condition that the material or information to be discovered be available only to counsel for the defendant. This provision does not alter the allocation of the burden of proof with regard to the matter at issue, including privilege. The court may permit a party seeking or opposing a protective order under this section, or another affected person, to submit papers or testify ex parte or in camera. Any such papers and a transcript of such testimony shall be sealed and shall constitute a part of the record on appeal.

245.75. Amendment of Discovery Orders

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imposed pursuant to this article granting discovery to a defendant upon the additional condition that the material or information to be discovered be available only to counsel for the defendant. The court may alter the times for compliance with any discovery order issued or imposed pursuant to this article upon a showing of good cause.

245.80. Waiver of Discovery by Defendant

A defendant who does not seek discovery from the prosecution under this article shall so notify the prosecution and the court at the defendant’s arraignment on an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor, or expeditiously thereafter but before receiving discovery from the prosecution pursuant to subdivision one (1) of section 245.20, and the defendant need not provide discovery to the prosecution pursuant to subdivision three (3) of section 245.20 and section 245.60. A waiver shall be in writing and signed by the defendant or counsel for the defendant. Such a waiver does not alter or in any way affect the procedures, obligations or rights set forth in sections 250.10, 250.20 and 250.30, or otherwise established or required by law.

245.85. Remedies or Sanctions for Noncompliance

(1.) Available Remedies or Sanctions. For failure to comply with any discovery order issued or imposed pursuant to this article, the court may make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the noncompliance, preclude or strike a witness’s testimony or a portion of a witness’s testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges, or make such other order as it deems just under the circumstances; except that any sanction against the defendant shall comport with the defendant’s constitutional right to present a defense, and the sanction of precluding a defense witness from testifying shall be permissible only upon a finding that the defendant’s failure to comply with the discovery order was willful and motivated by a desire to obtain a tactical advantage.

(2.) Need for Remedy or Sanction. (i) When material or information is discoverable under this article, but it cannot be disclosed because it has been lost or destroyed, the court shall impose an appropriate remedy or sanction whenever the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue. The appropriate remedy or sanction is that which is proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure. (ii) When material or information is discoverable under this article, but it is disclosed belatedly, the court shall impose an appropriate remedy or sanction whenever the party entitled to disclosure shows that it was significantly prejudiced.

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aside a conviction, or reverse, modify or vacate a judgment of conviction, in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding; provided, however, that nothing in this section shall affect or limit any right the defendant may have to a reopened pre-trial hearing when such statements were disclosed before the close of evidence at trial.

245.90. Admissibility of Discovery

The fact that a party has indicated during the discovery process an intention to offer specified evidence or to call a specified witness is not admissible in evidence or grounds for adverse comment at a hearing or a trial.

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IV. PROPOSED STATUTORY LANGUAGE FOR A NEW C.P.L. ARTICLE 245 (WITH COMMENTARIES)

Note: This section of the report includes the statutory language for the proposed new Article 245, with explanatory Commentaries after each provision to elucidate its purpose, its contents, and the current New York law it would supersede. (The previous section, Section III, omits the interspersed Commentaries and, for uninterrupted review, includes only the statutory language of proposed Article 245.)

Discovery

245.10. Timing of Discovery

SOURCES OF PROPOSED C.P.L. §245.10(1): The first two subparts of this provision are modified from Colo. R. Crim. P. 16 Part I (b)(1), (3); see also Fla. R. C.P. 3.220(b)(1); N.J. CT. R. 3:13-3(b); C.P.L. §240.80(3). The third subpart is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.10(1): This provision streamlines and expedites discovery, by eliminating the requirements of current law that written discovery “demands” must be filed by the parties and that the parties must exchange other needlessly burdensome (and often “boilerplate”) written discovery motions and responses. Instead, under subpart (i) of this provision and subdivision three (3) of this section, discovery by both parties is mandatory and automatic. Furthermore, this provision reduces the time within which most

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disclosures by the prosecution must be made from (typically) 45 days after arraignment to fifteen days after arraignment.33 A fifteen-day period after the defendant’s arraignment for the prosecution to provide discovery also applies under Florida’s discovery rules, and a fourteen-day period from the defendant’s indictment applies under the New Jersey discovery rules. When necessary, the court has the authority to alter the discovery periods pursuant to section 245.75.

In practice, this provision does not function as an across-the-board mandate that prosecutors must provide discovery within “fifteen days” of the inception of the case. In most cases (and nearly always when there are considerable discovery materials), the “arraignment” that triggers the fifteen-day period for initial discovery from the prosecution does not occur until several days – and, typically, several weeks or several months – after the defendant’s arrest. 34 The often-substantial period between the arrest and the arraignment therefore supplements the fifteen-day period within which the prosecution must disclose most discovery materials, providing considerably more time for the prosecution to assemble and disclose them.

In addition, it should be noted that, in many cases, discovery will not be required at all, because the case will be resolved through an early guilty plea (except that discovery is required if the prosecution elects to place a deadline on a guilty plea offer, as described under subdivision two [2] of this section). And although in many misdemeanor cases the defendant is arraigned on a jurisdictionally sufficient accusatory instrument at the initial court appearance, typically there are few documents and other discovery materials that must be gathered, copied, and disclosed in such cases. The experience with similar rules of automatic and early discovery in other comparable states – including Florida and New Jersey – confirms that such time periods for discovery are realistic and fully practicable. 35

33 There are frequently two separate “arraignments” in a criminal case in New York State, and in those cases this provision refers to the later of them. The first arraignment is the defendant’s initial appearance in local criminal court, when he or she often is charged only in a felony complaint or a misdemeanor complaint. The second arraignment occurs at a subsequent court appearance, after the prosecution has filed an indictment or, in misdemeanor cases, a legally sufficient and verified accusatory instrument (such as an information). This provision makes it clear that the arraignment that triggers the prosecution’s initial discovery obligations is “the defendant’s arraignment on an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor.” Referring to this list of jurisdictionally sufficient accusatory instruments is the same way that C.P.L. §240.20(1) also makes clear that the discovery process begins at the later arraignment. 34 See generally C.P.L. §180.80 (providing that the prosecution need only file a written notice certifying that an indictment has been voted by a grand jury within 120 or 144 hours of an incarcerated defendant’s arrest for a felony, not that a defendant has been arraigned by then, to defeat the defendant’s right to release on his or her own recognizance due to undue delay in being indicted); C.P.L. §170.70 (setting forth an analogous rule for misdemeanor cases); C.P.L. §30.30 (setting forth multiple grounds for excluding periods of delay from the requirement to provide a defendant with a “speedy trial”). 35 See, e.g. , Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), pp. 68-82 [and Executive Summary, pp. 10-16] (surveying prosecutors and defense lawyers in several other large states with big cities, including California, Florida, Illinois, Michigan, New Jersey and Pennsylvania, and finding that in all of these jurisdictions at that time the prosecution would as a matter of practice disclose police reports and witnesses’ names, addresses, and statements early in the case, and that not only defense lawyers but prosecutors as well strongly approved of these discovery practices). As one District Attorney explained: “the DA’s office and the police department 28 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

In particular, this provision substantially reduces the current time period within which the prosecution must disclose the written and recorded statements of its witnesses ( i.e. , from the date of a hearing/trial to fifteen days after the defendant’s arraignment). Normally witnesses’ written and recorded statements are the most significant discovery that a defendant will receive, and they are critical to the defense’s ability to intelligently investigate and evaluate a case, to assess whether to plea bargain, and to prepare for a trial. Yet current New York law unfairly and inefficiently permits the prosecution to withhold such statements until the start of the pre-trial hearing or trial , which effectively precludes the defense lawyer from investigating and fully using them in many cases; deprives the defendant of a full opportunity to weigh them carefully while considering a guilty plea offer; and frequently causes unnecessary delays in the proceedings.

Importantly, this provision automatically lets prosecutors redact or withhold any discoverable materials when appropriate, pending a determination by the court as to whether their disclosure may be denied, conditioned, or delayed by a protective order under section 240.70. It requires the prosecutor to notify the defense in writing, however, when information has been withheld under a particular section. This is necessary to avoid misleading the defense regarding the disclosed materials, and it alerts defense counsel to the possibility of raising any arguments regarding the application for a protective order at the time it is being considered by the court. Current New York law also allows a prosecutor automatically to withhold any discoverable materials, and it requires written notice to the defense of a refusal to disclose them.36 But the current New York discovery rules are less clear than this provision and section 240.70 about the need for a party always to move for a protective order whenever it believes that redacting or withholding information is appropriate.37

Subpart (ii) of this provision sets a different timetable for the prosecution’s notice to the defense of any misconduct or prior criminal acts of the defendant that it intends to use at a trial for impeachment if the defendant elects to testify (i.e. , so- called Sandoval material), or as substantive evidence ( i.e. , so-called Molineux material).38 This information is classified as “supplemental” discovery – and it must have staff whose sole responsibility is providing discovery to the defense. This results in ‘real organizational efficiencies.’” See id. at 80 [14]. Another District Attorney remarked: “we hire a few people at minimum wage to copy all files (except for attorney work-product). Copies are put in a central depository and public defenders just come by a window and pick the material up.” See id. at 79 [14]. It is also noteworthy that a few District Attorneys in New York State already have voluntarily abandoned Article 240’s limited and inefficient disclosure requirements, and provide forms of “open file” discovery. See, e.g. , New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006)(finding that “those boroughs [of New York City] with more liberal disclosure report the most universal satisfaction with the process regardless of position within the system ”). 36 See C.P.L. §240.35. 37 There is not a categorical statement of this rule in Article 240. Compare C.P.L. §240.20(1) (disclosures must be made “[e]xcept to the extent protected by a court order…”) with C.P.L. §240.35 (disclosures may be withheld when the prosecutor “reasonably believes a protective order would be warranted”) and C.P.L. §240.40(1)(b)(the court must order disclosure upon motion of the defendant “unless it is satisfied that the people have shown good cause why such an order should not be issued”) and C.P.L. §240.50 (protective orders may be granted for good cause “upon motion of either party”). 38 See People v. Sandoval , 34 N.Y.2d 371 (1974); People v. Molineux , 168 N.Y. 264 (1901).

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be disclosed within fifteen days of trial, as opposed to within fifteen days of the defendant’s arraignment – because often a prosecutor will not know until he or she has actually begun to prepare for trial which specific misconduct/prior criminal acts of the defendant should be offered as impeachment or substantive evidence. Presently there is no statutory requirement to disclose misconduct and prior criminal acts that will be offered as substantive evidence.39 And under current law, misconduct and prior criminal acts that will be offered as impeachment evidence need be disclosed only at the time of the trial. 40 Providing the defense with fifteen days of advance notice eliminates unfair surprise and affords the defense lawyer adequate time to investigate, research, and prepare.

Subpart (iii) of this provision establishes that, upon a timely defense request, the prosecution must notify a defendant who has the right to testify at a prospective or pending grand jury presentation about any written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant, within 48 hours of the time scheduled for the defendant to testify at the grand jury proceeding. Although C.P.L. §190.50(5) gives certain defendants the right to testify at grand jury proceedings, current New York law does not require disclosure in advance of their prior statements that are known to the prosecution. This information is uniquely important to the defendant’s making an informed decision about whether to exercise that right, and to the defense lawyer’s ability to give informed and meaningful advice about the right to testify. Instead, under current New York law, the defendant is entitled to disclosure of this information only 45 days after the defendant’s arraignment on an indictment that has been voted by the grand jury.

Fair and intelligent decision-making about whether to testify under C.P.L. §190.50(5) – and informed and competent advice from defense counsel – require that the defendant be able to seek and receive notice of such statements before the deadline to exercise the statutory right to testify. Notably, this provision employs the same language from C.P.L. §190.50(5) to clearly restrict the right to early disclosure of this information to only those defendants who are entitled to testify at the grand jury ( i.e. , a “defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of a prospective or pending grand jury proceeding”).

Finally, there are administrative costs involved in providing early and open discovery, not only because more documents must be copied and disclosed but also because earlier discovery will require that discovery materials be provided in more cases that ultimately end in early plea bargains. But there will also be great corresponding savings from the probability that far more guilty pleas will be entered earlier in the case when defendants receive a prompt opportunity to actually see tangible proof of the strength of the prosecution’s evidence and, thus, the reasons for accepting plea bargains.41 Specifically, this saves state taxpayers money by: reducing

39 See People v. Ventimiglia , 52 N.Y.2d 350 (1981); People v. Small , __ N.Y.3d __, 2009 WL 330237; compare Ariz. R. Crim. P. 15.1(b)(7); see also “ABA Criminal Justice Section Standards – Discovery,” Standard 11-2.1(a)(vi). 40 See C.P.L. 240.43. 41 See, e.g. , The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), p. 20 (quoting a North Carolina District Attorney regarding effects of that state’s adoption in 2004 of a system of 30 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

the number of court appearances in those cases; reducing trips in which incarcerated defendants must be transported between jail and court in those cases; reducing overburdened courtroom dockets and obviating needless litigation; and freeing state- funded defense lawyers and prosecutors to handle more cases per attorney, when their caseloads are not bloated with dozens of cases (and their multifold attendant tasks) in which the defendant awaits discovery simply to confirm the existence of a prosecution witness or the strength of the prosecution’s case and then accepts a long- pending plea offer. By contrast, when the defense lawyer is promptly given the discovery materials, he or she can intelligently advise the defendant concerning the strength of the prosecution’s case and, when appropriate, demonstrate for the defendant using tangible proof that accepting the plea is his or her best option. That numerous other large states with big cities – including “Los Angeles, Chicago, Detroit, Philadelphia, Miami, San Diego and Newark” – have provided broad and early criminal discovery for decades definitively confirms that complying with such requirements is entirely practicable. 42

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the defendant must file a written “demand” to obtain “property” listed in C.P.L. §240.20(1) within thirty days after arraignment. See C.P.L. §240.80(1). The prosecution must comply with such a demand to produce property within fifteen days of service of the demand, “or as soon thereafter as practicable.” See C.P.L. §240.80(3). Alternatively, the prosecution must file a written refusal to comply with the demand within fifteen days; and, upon motion by the defendant, the court must evaluate that refusal. See C.P.L. §§240.80(2), 240.40(1). The prosecution need not disclose the written and recorded statements of its testifying witnesses (and the known criminal convictions and pending criminal cases of its testifying witnesses) until the conclusion of their direct examination at a pre-trial hearing or after the jury has been sworn at a trial. See C.P.L. §§240.44, 240.45(1).43

mandated “open file” discovery: “[Open-file discovery] is more likely to generate guilty pleas. If you have good evidence, the lawyer tells the client to plead guilty”); id. at 9 (“Early discovery … will likely result in fewer trials and save states potentially millions of dollars. Automatic, mandatory discovery also leads to greater efficiency in the criminal justice system by reducing the need for pretrial discovery motions, thereby saving attorneys, judges, and court personnel time and expense”); New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006), p. 2 (“when the individuals accused are privy to more information sooner, informed choices can be made earlier in the process”); 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, 1154-55 (2004)(“the costs of open file discovery are very low … there will be a corresponding savings in the probability that pleas will happen earlier if the defendant has an opportunity to view the government’s evidence”). 42 See, e.g. , 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, 68-82 [and Executive Summary, pp. 10-16]. 43 In addition, the defendant may move in writing for a “bill of particulars” – which provides some basic factual information regarding the charged offense(s) – within thirty days after arraignment. See C.P.L. §§255.20(1), 200.95. The prosecutor must provide this information, which does not include “matters of evidence relating to how the people intend to prove the elements of the offense charged,” within fifteen days or as soon as practicable (or else file a written refusal to comply with the request). See C.P.L. §200.95. Notably, conforming amendments to C.P.L. §200.95 might be made if this proposed Article 245 is enacted, or else that section might even be repealed because it would be rendered largely superfluous by the discovery afforded under Article 245.

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Furthermore, under current law, the prosecution must disclose upon request any instances of the defendant’s “prior uncharged criminal, vicious or immoral conduct” which it intends use at trial to impeach the testifying defendant (but such disclosure need not occur until jury selection begins, or, if the court orders it, within three days before jury selection). See C.P.L. §240.43. There is no statutory requirement that the prosecution disclose in advance any instances of the defendant’s prior misconduct or crimes that it intends to offer as substantive proof, but decisional law recommends that it do so at the start of the trial. See People v. Ventimiglia , 52 N.Y.2d 350 (1981); People v. Small , __ N.Y.3d __, 2009 WL 330237. There is no requirement that the prosecution must disclose the defendant’s or co-defendants’ statements prior to the deadline for the defendant to testify at the grand jury.

SOURCES OF PROPOSED C.P.L. §245.10(2): This provision is modified from Ariz. R. Crim. P. 15.8; see also N.J. CT. R. 3:13-3(a).

COMMENTARY ON PROPOSED C.P.L. §245.10(2): This provision requires the prosecution to disclose most discoverable materials (including police reports, witnesses’ written and recorded statements, witnesses’ contact information, tangible objects and exhibits, exculpatory evidence and information, etc.) thirty days before a “deadline” that the prosecution has decided to set for the defendant to accept or decline a guilty plea offer. The same rule is employed in Arizona, and a similar rule exists in New Jersey.

Importantly, the provision does not require the prosecution to provide discovery in all cases where a guilty plea offer is made. Instead, it pertains only to those cases in which the prosecution chooses to make the guilty plea offer contingent upon a deadline . Furthermore, the requirement that initial discovery must be completed thirty days before the deadline of such guilty plea offers is appropriate and necessary, because often it takes several days for the defense lawyer to produce an incarcerated defendant for a counsel interview, and, most critically, the defendant

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should have a full opportunity to consider with thorough advice from counsel what is ordinarily the single biggest decision in the case.44

Although the prosecution must disclose most discovery materials within fifteen days of arraignment pursuant to subdivision one (1) of this section, some guilty plea offers have a deadline that expires before that point (including “this day only” guilty plea offers). This provision substantially furthers the policy goal of encouraging informed guilty pleas. It provides reasonable incentives to deter the kinds of major discovery violations which have the potential to cause defendants to make inadequately informed decisions about whether to plead guilty.

Specifically, it provides that, when a defendant subsequently learns of a material discovery violation by the prosecution that affected his or her decision to accept or reject a guilty plea offer that had a deadline, the defendant can make a motion to address the problem. The court has discretion to determine whether the discovery violation had a causal effect on the defendant’s decision. If the court finds that it did have a material effect in leading the defendant to reject such a guilty plea offer, then the prosecutor has the option to reinstate the lapsed guilty plea offer – or else the court may impose a remedy or sanction at trial. The presumptive remedy or sanction in this situation is to preclude admission of the belatedly disclosed evidence, but the court retains discretion to impose another remedy or sanction whenever appropriate. (Of course, if the evidence that was not timely disclosed consists of prior written or recorded statements by a witness that would constitute inadmissible hearsay at a trial, the remedy or sanction of precluding such statements from evidence effectively would be meaningless – since they could not be admitted in any event. In such situations, the defense lawyer would be able to argue to the court that the “presumptive minimum remedy or sanction” of precluding the evidence is inadequate, and that the court should exercise its discretion to impose some other – meaningful – remedy or sanction, including precluding other evidence concerning the subject matter of the belatedly disclosed evidence.)

Although the Arizona rule from which this provision is modified specifies the presumptive remedy or sanction that applies when the discovery violation led the defendant to reject a guilty plea offer, it does not specify a presumptive remedy or sanction in the flipside situation where the discovery violation led the defendant inadvisably to accept a guilty plea offer. Of course, the only type of discovery violation that would ordinarily justify vacating a defendant’s guilty plea is a failure to disclose significant exculpatory evidence and information. Accordingly, this provision fills in the inexplicable gap in the Arizona rule by indicating that, if the court finds in response to a defense motion made prior to sentencing that a discovery violation involving evidence discoverable under subdivision (1)(j) of section 245.20 had a causal effect on the defendant’s decision to accept a guilty plea, then the guilty

44 The defendant’s constitutional right to the effective assistance of counsel includes receiving professional advice from counsel concerning whether to accept or decline a guilty plea offer, and the likely consequences of both options. See, e.g. , Pham v. U.S. , 317 F.3d 178, 182 (2d Cir. 2003); Boria v. Keane , 99 F.3d 492, 498 (2d Cir. 1996); Davis v. Greiner , 428 F.3d 81 (2d Cir. 2005); People v. Howard , 12 A.D.3d 1127 (4th Dept. 2004); People v. Perron , 287 A.D.2d 808 (3rd Dept. 2001); see also Brady v. U.S. , 397 U.S. 742, n.6 (1970)(“An intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney”).

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plea must be vacated and further proceedings had on the accusatory instrument so that the defendant can employ the significant exculpatory evidence.

Notably, courts and commentators have often recognized – and DNA exonerations have confirmed – that even defendants who are innocent and have a bona fide defense to the charges sometimes will enter a guilty plea for various reasons (including that trials are unpredictable and that they face a grave risk of a far greater sentence if convicted after trial) despite their innocence.45 Thus, it is entirely appropriate to permit a defendant who entered a guilty plea because the prosecution improperly withheld significant exculpatory evidence to be restored to the same position that he or she would have been in had the prosecution properly complied with its discovery obligations, and to proceed to trial with the benefit of that exculpatory material.46

Finally, at least four factors properly restrict the scope of this provision and leave prosecutors with ample flexibility in plea bargaining. First, prosecutors always have the option to render this subdivision inapplicable by simply making a guilty plea offer that does not have a deadline . Second, peripheral or minor disclosure violations will provide no ground for disturbing a guilty plea, because a remedy for a violation of the provision is available only in those rare cases when the court determines that the untimely disclosure was materially important to the defendant’s decision. Third, even when a disclosure violation was so significant that it caused the defendant’s decision to reject a plea offer, the prosecutor still has the option either to reinstate the guilty plea offer or to proceed to trial and incur a sanction that the court deems appropriate. 47 Fourth, the remedy or sanction of precluding the belatedly

45 See, e.g. , U.S. v. Cronic , 466 U.S. 648, 657 n.19 (1984); Cullen v. U.S. , 194 F.3d 401, 407 (2d Cir. 1999); Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 557-60 (2006)(“Many may take comfort from the widespread disposition of cases by pleas, asserting that it not only conserves resources, but it also validates the underlying prosecutions. The notion that pleas validate the prosecution of cases that result in pleas rests on the assumption that people plead guilty because they are, in fact, guilty and that a guilty plea reflects culpability. In contrast to this assumption, we have good reason to question the accuracy of the factual bases for pleas in many cases. While many defense lawyers know that some of their clients who are innocent plead guilty, the DNA exoneration cases have provided incontrovertible proof that this does happen. Among the scores of exonerees are persons who pleaded guilty and were later proven innocent…. In a study of exonerations from 1989 to 2003, researchers found that 6 percent of exonerees had pleaded guilty, noting that many cases that resolve by plea do not result in post-plea investigations or litigation that could lead to exoneration…. The incidence of guilty pleas by innocent men and women is not limited to defendants facing the most extreme penalties in the most serious cases. For example, of the thirty-nine people wrongly convicted of drug offenses in Tulia, Texas, thirty-one pleaded guilty…. We also have good reason to examine how the limits on discovery may play a part in innocent defendants pleading guilty…. Defendants seek or accept deals to get out of jail, to avoid greater imprisonment, or to get on with their lives. Their lawyers are often not in a position to offer a different version of the evidence”). 46 To further address the serious problem of defendants’ convictions that are unfairly and unreliably obtained due to non-disclosure of exculpatory evidence, a separate amendment to C.P.L. Article 440 might also be appropriate to specify that prosecutors have a continuing duty to disclose known materially exculpatory evidence and information until the time that a convicted defendant has finished serving his or her sentence; and to establish a mechanism for a defendant to move to set aside his or her conviction based upon a significant violation of that duty. See generally Fred C. Zacharias, “The Role of Prosecutors in Serving Justice After Convictions,” 58 Vand. L. Rev. 171, 189-91 (2005). 47 If proposed Article 245 is enacted, an amendment to C.P.L. Article 220 should be made to specify that, upon a violation of this subdivision, the prosecutor may reinstate a lapsed guilty plea offer that had been 34 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

disclosed evidence at a trial merely is “presumptive,” so the court still retains discretion to impose a different remedy or sanction if it is more appropriate under the totality of the circumstances.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the same timeframe for discovery applies regardless of whether a guilty plea offer is made, and the defendant has no statutory right to receive discovery prior to the deadline for accepting a guilty plea offer. Under narrow circumstances, some courts have held that constitutional due process requires the prosecution to disclose materially exculpatory evidence or information that bears on the defendant’s innocence before the defendant’s entry of a guilty plea. See, e.g. , U.S. v. Coppa , 267 F.3d 132, 135-44 (2d Cir. 2001); U.S. v. Persico , 164 F.3d 796, 804 (2d Cir. 1999); U.S. v. Avellino , 136 F.3d 249, 255 (2d Cir. 1998); People v. Ortiz , 127 A.D.2d 305, 308 (3rd Dept. 1987); see also People v. Carter , 258 A.D.2d 409, 411-12 (1st Dept. 1999); cf. U.S. v. Ruiz , 536 U.S. 622, 629-31 (2002); People v. Jones , 44 N.Y.2d 76, 82 (1978).

SOURCES OF PROPOSED C.P.L. §245.10(3): This provision is modified from Fla. R. C.P. 3.220(d)(1); Ariz. R. Crim. P. 15.2(d).

COMMENTARY ON PROPOSED C.P.L. §245.10(3): This provision concerning the timing of reciprocal discovery from the defendant corresponds to subdivision one (1) of this section, which concerns the timing of discovery from the prosecution. It eliminates the requirements of current law that the prosecution must move for discovery, and that the parties must exchange other needlessly burdensome (and often “boilerplate”) discovery motions and responses. Instead, reciprocal discovery is mandatory and automatic. Furthermore, it reduces the time within which most disclosures by the defendant must be made from (typically) sixty days after arraignment to (typically) 45 days after arraignment ( i.e. , the prosecution must comply with its initial discovery obligations fifteen days after arraignment pursuant to subdivision one [1], and the defense then will have thirty additional days to provide its reciprocal discovery).

Modern systems of early and open criminal discovery generally require broad discovery from both the prosecution and the defense, despite certain constitutional protections that apply only to the defendant and place important

made prior to the defendant’s indictment but that, after the defendant’s indictment, would be unavailable due to the plea bargaining restrictions set forth in Article 220.

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limitations on reciprocal discovery.48 This provision and subdivision three (3) of section 245.20 also take this approach, and they significantly expand discovery from the defendant beyond current New York law. In particular, this provision substantially reduces the time period within which the defendant must disclose the written or recorded statements of intended defense witnesses ( i.e. , from the time of a hearing/trial to 45 days after arraignment). The provision also contains redaction/withholding and written notification rules that correspond to those applicable to the prosecution under subdivision one (1) of this section.

The triggering event for the thirty-day period within which the defendant must provide reciprocal discovery is receipt of the prosecution’s Certificate of Compliance. That certificate, which declares that the prosecutor has completed his or her initial discovery obligations, must be filed and served on the defendant fifteen days after arraignment pursuant to subdivision one (1) of section 245.50. It will function as an undisputable event that provides the defendant with notice of the start of the thirty-day period for reciprocal discovery.

Moreover, as discussed in detail in the Commentary to subdivision three (3) of section 245.20, for several reasons it is appropriate to require the prosecution to complete its initial discovery before the defense must produce reciprocal discovery. It is also appropriate to make the period for reciprocal discovery thirty days after receipt of the prosecution’s discovery, whereas the prosecution has fifteen days from arraignment to perform its initial discovery, because the defense needs time to review and synthesize the discovery materials and to undertake investigations so as to ascertain which evidence and witnesses it intends to introduce at trial. Of course, the prosecution will have already had whatever time it needed to build a case against the defendant, before charging him or her with an offense – but receipt of the prosecution’s initial discovery materials typically is the first time that the defendant will possess enough information to determine the prospective defense witnesses and evidence and to begin to prepare a trial strategy.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must move for reciprocal discovery of “property” listed in C.P.L. §240.30(1) within 45 days after arraignment. See C.P.L. §240.90(1). The defendant must comply with such a demand to produce property within fifteen days of service of the demand, “or as soon thereafter as practicable.” See C.P.L. §240.80(3). Alternatively, the defendant must file a written refusal to comply with the prosecution’s motion within fifteen days; and, upon motion by the prosecution, the court must evaluate that refusal. See C.P.L. §§240.80(2), 240.40(2). The defendant need not disclose the written and recorded statements of his or her testifying witnesses (and the known criminal convictions and pending criminal cases of his or her testifying witnesses) until the conclusion of their direct examination at a pre-trial hearing or before presentation of the defendant’s direct case at a trial. See C.P.L. §§240.44, 240.45(2). Within 45 days after arraignment, the prosecution also may move for discovery of certain non-testimonial evidence from the defendant as set forth in C.P.L. §240.40. See C.P.L. §240.90(1).

48 See generally U.S. Const., Amends. V, VI, XIV; Michigan v. Lucas , 500 U.S. 145 (1991); Taylor v. Illinois , 484 U.S. 400 (1988); Wardius v. Oregon , 412 U.S. 470 (1973); Williams v. Florida , 399 U.S. 78 (1970); U.S. v. Nobles , 422 U.S. 225 (1975); People v. Copicotto , 50 N.Y.2d 222 (1980).

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245.20. Automatic Discovery

SOURCES OF PROPOSED C.P.L. §245.20(1): This provision is modified from Mass. R. Crim. P. 14(a)(1)(A).

COMMENTARY ON PROPOSED C.P.L. §245.20(1): This provision requires automatic disclosure by the prosecution of the listed types of evidence and information, within fifteen days of the defendant’s arraignment (as specified in subdivision one [1] of section 245.10). It eliminates the unnecessary and burdensome current requirements of a written “demand” for discovery and other discovery motion practice. Furthermore, the categories of evidence and information to be disclosed are substantially broader than under C.P.L. §240.20(1). As under current law, only items that are within the possession or control of law enforcement need be disclosed.

The initial paragraph of the Massachusetts discovery rules from which this provision is modified specifies that only materials that are “relevant to the case” need be disclosed pursuant to all of its listed subsections. In contrast, this provision describes the connection that items must have to the case within each of the various subsections listed under it. It does this because several of the listed categories of materials are, by definition, connected to the case – so prosecutors should not be directed to perform an additional “relevancy” analysis before disclosing such items. Other listed subsections instruct prosecutors to disclose all known materials of that kind which “relate to the subject matter of the case or are otherwise relevant.” This standard is broader than a mere “relevancy” test. Especially because prosecutors may not know the context or content of the defense theory of the case at the time that initial discovery decisions are made, they may have little basis for making accurate “relevancy” decisions. By requiring automatic disclosure of all evidence and information that relates to the subject matter of the case or is otherwise relevant, this provision will result in more complete disclosures and avoid the inefficiencies and inaccurate determinations that would result from a rule that makes the prosecutor always gauge the “relevancy” of any potentially discoverable item (even when it clearly relates to the subject matter of the case, and therefore should be disclosed in a system of full and open discovery).49

This provision also omits the unduly elaborate definition of “possession, custody or control” used in the Massachusetts rule. That rule describes the concept

49 See generally People v. Copicotto , 50 N.Y.2d 222, 226 (1980)(“Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence”); People v. DaGata , 86 N.Y.2d 40, 45 (1995)(“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. Banch , 80 N.Y.2d 610, 615 (1992); People v. Ranghelle , 69 N.Y.2d 56, 63 (1986)(given “the strong presumption of the discoverability of prior statements of prosecution witnesses,” advising that “the better practice is to turn over the statements immediately without further analysis as to whether the defendant is technically entitled to disclosure”).

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as including all items that are “in the possession, custody or control of the prosecutor, persons under the prosecutor’s direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case .” 50 This ponderous definition is unnecessary, and it may even be susceptible to the misinterpretation that only materials possessed by police officers who personally or “regularly” report to the prosecutor – rather than materials possessed by all police officers who worked on the case – is discoverable. In any event, there is no particular confusion about current New York law holding that all materials possessed by the police and other law enforcement investigators are within the control of the prosecution and must be disclosed. 51 This provision, therefore, maintains that standard, and defines the concept using the more straightforward phrasing that information is discoverable whenever it is “in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.”

Finally, the Massachusetts rule omits to note that discoverable materials must be made available to be “photographed” by the opposing party – which is a requirement specified in C.P.L. §240.20 – so this provision maintains that commonsense rule from current New York law.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose property listed in C.P.L. §240.20(1) only after receiving a written “demand” for it by the defendant. The scope of what evidence and information is within the prosecution’s “possession, custody and control” includes materials possessed by the police and by other law enforcement investigators. See C.P.L. §240.20(1); People v. Rosario , 9 N.Y.2d 286 (1961); People v. Washington , 86 N.Y.2d 189 (1995); People v. Santorelli , 95 N.Y.2d 412 (2000); People v. Simmons , 36 N.Y.2d 126 (1975); see also Kyles v. Whitley , 514 U.S. 419, 437-38 (1995)(“the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case”).

(a) All written and recorded statements, and the substance of all oral statements, made by the defendant or a co-defendant which relate to the subject matter of the case or are otherwise relevant.

SOURCES OF PROPOSED C.P.L. §245.20(1)(A): This provision is modified from Mass. R. Crim. P. 14(a)(1)(A)(i); see also Ariz. R. Crim. P. 15.1(b)(2); Ill. S. Ct. R. 412 (a)(ii); Alaska RCP 16 (b)(1)(A)(iii); Mo. R. Crim. P. 25.03(A)(2); “ABA Criminal Justice Section Standards – Discovery,” Standard 11-2.1(a)(i).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)(A): This provision broadens current New York law regarding the disclosure of statements made by the defendant and co-defendants that are known to law enforcement. First, it eliminates the unsound limitation that only statements made to law enforcement personnel need

50 See Mass. R. Crim. P. 14(a)(1)(A) (emphasis added). 51 See, e.g. , C.P.L. §240.20(1); People v. Rosario , 9 N.Y.2d 286 (1961); People v. Washington , 86 N.Y.2d 189 (1995); People v. Santorelli , 95 N.Y.2d 412 (2000); People v. Simmons , 36 N.Y.2d 126 (1975); see also Kyles v. Whitley , 514 U.S. 419, 437-38 (1995)(“the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case”).

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be divulged. Second, it eliminates the unsound limitation that the substance of oral statements made during the charged crime and known to law enforcement need not be divulged. These broader disclosure requirements are employed in other states such as Massachusetts, and they are more harmonious with the underlying goals of full and open discovery. 52

The defendant has the same need to investigate and prepare a trial strategy using known statements made to civilians as statements made to law enforcement personnel. Likewise, they are equally pertinent to assessing whether the defendant should enter a guilty plea. Furthermore, under current New York law, a defendant’s statement made “involuntarily” to a civilian can be the subject of a suppression hearing, so the defense lawyer should be informed of it before the trial so that all pre- trial litigation can be undertaken efficiently and coherently, and unnecessary delays will not occur during the proceedings.53

Similarly, the substance of the defendant’s and co-defendants’ oral statements made during the alleged crime and known to law enforcement also could be highly significant to pre-trial investigation, to trial preparation, and to assessing whether to enter a guilty plea. Notably, this provision does not obligate a prosecutor to conduct an interview with a civilian complainant simply to learn the “substance” of the defendant’s or co-defendants’ statement made during the charged crime, so that they can be timely disclosed. Rather, like all the subdivisions of this section, only information already “in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control” is discoverable.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose only written, recorded, and oral statements of the defendant and co-defendants to be tried jointly that were made to a public servant engaged in law enforcement activity. Moreover, the substance of oral statements made by the defendant and co-defendants to be tried jointly during the charged criminal transaction need not be disclosed. See C.P.L. §240.20(1)(a). The prosecution also is not required to provide pre-trial notice under C.P.L. §710.30 of its intention to offer at trial statements made by the defendant to a civilian (even when the defendant made statements to a civilian during a police-arranged and recorded telephone call designed to generate incriminating evidence). See, e.g. , People v. Stern , 226 A.D.2d 238 (1st Dept. 1996); see also Matter of Luis M. , 83 N.Y.2d 226 (1994). Similarly, the prosecution is not required to provide pre-trial notice under C.P.L. §710.30 of its intention to offer at trial statements made by the defendant during the charged crime. See, e.g. , People v. Evans , 17 A.D.3d 861 (3rd Dept.

52 The restrictions in C.P.L. §240.20(1)(a) that statements made by the defendant to civilians and/or during the charged crime are not discoverable are distinctly out of step with the discovery provisions of other jurisdictions. See generally 5 Wayne R. LaFave et al., Criminal Procedure §20.3(c), n.70 (3d ed. 2008)(noting that New York State stands out as a jurisdiction that affords defendants discovery of their own statements “more limited than either [Fed. R. Crim. P.] Rule 16 or ABA-type provisions”). 53 See, e.g. , Matter of Brian E. , 206 A.D.2d 665 (3rd Dept. 1994)(“a statement is involuntarily made [and suppressible] if obtained ‘by any person’ by the use of … ‘any improper conduct or undue pressure which impaired the respondent’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement’”), quoting C.P.L. §60.45(2); People v. Grillo , 176 A.D.2d 346 (2d Dept. 1991); People v. Pagan , 211 A.D.2d 532 (1st Dept. 1995).

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2005); People v. Garcia-Lopez , 308 A.D.2d 336 (1st Dept. 2003); People v. Copes , 200 A.D.2d 680 (2d Dept. 1994).

(b) All transcripts of the testimony of a person who has testified before any grand jury when the testimony relates to the subject matter of the case or is otherwise relevant.

SOURCES OF PROPOSED C.P.L. §245.20(1)( B): This provision is modified from Mass. R. Crim. P. 14(a)(1)(A)(ii); Colo. R. Crim. P. 16 Part I (a)(1)(II); Minn. R. Crim. P. 9.01 Subd. 1 (3); Mo. R. Crim. P. 25.03(A)(3); Ill. S. Ct. R. 412 (a)(iii).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)(B): This provision broadens current New York law regarding the disclosure of transcripts of grand jury testimony. First, it eliminates the limitation that only grand jury testimony by the defendant or co-defendants need be disclosed before the time of a pre-trial hearing or trial. Second, it eliminates the limitation that only the grand jury testimony of those witnesses whom the prosecution calls to testify at a pre-trial hearing or a trial need be disclosed. Notably, the provision maintains the current requirement of C.P.L. §240.20(1)(b) that testimony given “before any grand jury” is discoverable. These broader disclosure requirements are employed in other states such as Massachusetts, and they are more harmonious with the underlying goals of full and open discovery.54

While this provision largely is redundant of other provisions in this section – insofar as grand jury witnesses’ recorded statements also would have to be disclosed under subdivision (1)(e), and the defendant’s and co-defendants’ grand jury testimony also would have to be disclosed under subdivision (1)(a) – it provides additional clarity for prosecutors concerning the obligation to disclose this particularly important category of recorded and sworn prior statements. Moreover, rather than receiving before trial only the grand jury testimony of the defendant and co-defendants to be tried jointly (as under current New York law), the defendant should receive the grand jury testimony of all potential witnesses who testified concerning the subject matter of the case or in an otherwise relevant way. The information in such sworn statements is useful when investigating the case, when assessing whether the defendant should enter a guilty plea, when determining an appropriate case strategy, and when examining a witness at a pre-trial hearing and a trial.

Finally, this provision will reduce an unfair form of gamesmanship that commonly occurs under the current discovery rules. Specifically, prosecutors often manipulate the current discovery requirements by choosing when possible to call different witnesses to key events in the case at the grand jury and then at a pre-trial hearing or trial. By doing so, the prosecutor is able to permanently withhold from the defense the grand jury testimony of the witnesses who were not called to testify a second time at the later proceedings, and thus he or she seeks to minimize impeachments of the prosecution’s witnesses. This tactic can subvert the truth- finding process and it unfairly limits defense investigations. In contrast, under this provision, all of the grand jury witnesses’ testimony would have to be disclosed,

54 If proposed Article 245 is enacted, an amendment to C.P.L. §190.25(4)(a) might be appropriate to specify that transcripts of the testimony of all persons who testify before a grand jury are discoverable pursuant to this subdivision. See generally People v. DiNapoli , 27 N.Y.2d 229, 235 (1970).

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regardless of whether the prosecutor called them to testify again at a later hearing or at trial.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose before trial only the grand jury testimony of the defendant and co-defendants to be tried jointly. See C.P.L. §240.20(1)(b). It is not required to disclose the grand jury testimony of witnesses whom it does not call to testify again at a pre-trial hearing or at trial. See C.P.L. §§240.44(1), 240.45(1). Furthermore, even when it does call a grand jury witness to testify again at a later proceeding, it need not disclose his or her prior grand jury testimony until the time of the hearing or the trial. See C.P.L. §§240.44(1), 240.45(1).

SOURCES OF PROPOSED C.P.L. §245.20(1)( C): This provision is modified from N.J. CT. R. 3:13-3(c)(6); Fla. R. C.P. 3.220(b)(1)(A); Minn. R. Crim. P. 9.01 Subd. 1 (1)(d); Alaska RCP 16 (b)(1)(A)(i).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( C): This provision requires early disclosure of information about all of the people with relevant knowledge about the case known to the prosecutor, and a designation of the potential prosecution witnesses. Mandating early disclosure of witnesses’ contact information – unless a showing of good cause to withhold it is made and a protective order is issued by the court – will substantially improve the defense’s ability to investigate the case, to promptly and intelligently determine whether the proper disposition is a guilty plea, and to plan an appropriate trial strategy.

It will also substantially expedite the resolution of those cases in which a defendant would enter a guilty plea, but hesitates to do so because he or she hopes or does not believe that a complainant or other key witness really exists and will testify. When such a defendant sees from the discovery materials that there actually is a specific witness who is going to testify, he or she generally is less reluctant to enter the guilty plea. As the experiences in other states with early and broad discovery systems confirms, this results in more guilty pleas being entered earlier in the proceedings – which increases the efficiency of the criminal justice system and saves taxpayers money.

Given the underlying goals of full and early discovery, there is no reason to limit the disclosure of witness information to only the prosecution’s intended witnesses . Other persons as well may have pertinent information about the case. In particular, potential witnesses for the defendant who are known to the prosecution should not in effect be hidden from the defense, just because the discovery statute does not require the prosecution to divulge them. This provision follows the discovery rules of New Jersey and Florida by presumptively requiring the disclosure of names and addresses of all persons known to the prosecutor to possess information relevant to a charged offense or to a potential defense, which includes potential defense witnesses and other witnesses whom the prosecutor does not intend to call. 41 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

The provision also follows the Florida rule by spelling out for prosecutors that such relevant information may concern either a charged offense or a potential defense . It requires disclosure of known aliases used by potential witnesses, so that the defense lawyer can intelligently investigate and research the complete prior criminal records of the witnesses as described in subdivision (1)(t).

That many other large states with big cities have for decades presumptively required early disclosure of witnesses’ contact information, and have required prosecutors to move for a protective order to redact or withhold such information when appropriate, confirms not only that this rule is practicable but also that it will not compromise effective law enforcement or result in problems of widespread interference with witnesses. For example, a 1991 study commissioned by the New York State Assembly Codes Committee surveyed practices regarding the disclosure of witnesses’ contact information in comparable states with big cities (including California, Florida, Michigan, New Jersey and Pennsylvania), and it debunked the notion that such discovery results in additional witness intimidation and jeopardy to witnesses’ safety. Instead, it found that both prosecutors and defense lawyers in these jurisdictions supported the practice, and that they did not believe that it tangibly increased interference with witnesses.55 Even under the current New York discovery rules, the defendant in many cases knows the identity of the key prosecution witnesses, and all defendants presumptively should be entitled to investigate and to prepare for trial with such knowledge. When recommending that disclosure of witness contact information presumptively be required in New York State, the 1991 Assembly Codes Committee study concluded: “the link between criminal discovery and witness intimidation is extremely weak.” 56

Finally, it is appropriate to place the burden on the prosecutor to move for a protective order to redact or withhold information about potential witnesses when appropriate, based upon a showing of good cause. Several other states take this approach, including New Jersey and Florida, and it is recommended by the ABA’s Criminal Justice Section Standards and set forth in C.P.L. §240.50(1).57 Under subdivision four (4) of this section and section 245.70, the prosecutor automatically can withhold such information when appropriate until the court has ruled on the application for a protective order.

55 See, e.g. , 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 (summarizing that “it is not only possible, but common, to have a system whereby the defense attorney has pre-trial access to witnesses while, at the same time, the state is able to safeguard the witness and interests of society. In Los Angeles, Chicago, Detroit, Philadelphia, Miami, San Diego and Newark, defense attorneys are, barring exceptional circumstances, able to interview witnesses prior to trial. In none of these cities did any interviewee (either prosecutor of defender) speak of a significant level of overall witness intimidation…. The only major jurisdiction studied [aside from New York State] where pre-trial disclosure of witness names is not required by statute or court rule is at the federal level. But there are significant differences between state prosecutions and federal prosecutions….”). 56 See Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), p. 112. 57 See N.J. CT. R. 3:13-3(c)(6); Fla. R. C.P. 3.220(b)(1)(A); Alaska RCP 16 (b)(1)(A)(i); “ABA Criminal Justice Section Standards – Discovery,” Standard 11-2.1(a)(ii); see also C.P.L. §240.50(1).

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PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no requirement for the prosecution to disclose the names and addresses of all knowledgeable persons, or to disclose the identity of its prospective witnesses prior to the time they testify at a pre-trial hearing or a trial. See C.P.L. §240.20; People v. Izquierdo , 292 A.D.2d 247, 248 (1st Dept. 2002); People v. Miller , 106 A.D.2d 787 (3rd Dept. 1984); cf. Matter of Andre W. , 44 N.Y.2d 179 (1978); People v. Frost , 100 N.Y.2d 129 (2003).

SOURCES OF PROPOSED C.P.L. §245.20(1)( D): This provision is modified from Mass. R. Crim. P. 14(a)(1)(A)(v).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( D): This provision follows the Massachusetts discovery rules by separating the disclosure requirement for information about knowledgeable law enforcement witnesses from that for information about knowledgeable civilian witnesses (which is covered by subdivision [1][c]). It does this for two main reasons. First, the defense should not receive the address or birth date for a law enforcement witness, but only his or her name and business address. Second, subdivision (1)(c) requires the prosecutor to designate the civilian witnesses who may be called to testify at trial, not only to help distinguish between potentially favorable and unfavorable witnesses, but also to save the defense from having to perform the needless work of doing criminal history background checks for all knowledgeable persons (as opposed to only those witnesses who may testify). But no equivalent designation is needed for law enforcement personnel because the defendant does not need to investigate their criminal histories, unlike the criminal histories of potential civilian witnesses.

Just like subdivision (1)(c), this provision does not limit discovery of witness information to law enforcement witnesses whom the prosecution intends to call , because the defense should also receive information regarding law enforcement personnel who may be potential defense witnesses or who have other pertinent knowledge. Finally, as with all other presumptively discoverable evidence and information under this article, the prosecutor can move for a protective order whenever appropriate to withhold this information based on a showing of good cause (pursuant to subdivision four [4] of this section and section 245.70).

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no statutory requirement for the prosecution to disclose the names and business addresses of all knowledgeable law enforcement witnesses prior to the time of a pre-trial hearing or a trial. See C.P.L. §240.20; People v. Izquierdo , 292 A.D.2d 247, 248 (1st Dept. 2002); People v. Miller , 106 A.D.2d 787 (3rd Dept. 1984); see also C.P.L. §240.50(4)(specifically precluding the disclosure of the personal residence address of a police officer or a correction officer except on a showing of good cause); cf. People v. Stanard , 42 N.Y.2d 74 (1977); People v. Waver , 3 N.Y.3d 748 (2005).

(e) All statements, written or recorded or summarized in any writing or recording, which relate to the subject matter of the case or are otherwise relevant and were made 43 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

by persons whom the prosecutor knows to have evidence or information relevant to any offense charged or to a potential defense thereto.

SOURCES OF PROPOSED C.P.L. §245.20(1)( E): This provision is modified from Fla. R. C.P. 3.220(b)(1)(B); N.J. CT. R. 3:13-3(c)(7); Minn. R. Crim. P. 9.01 Subd. 1 (2); Alaska RCP 16 (b)(1)(A)(i).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( E): This provision broadens current law regarding the disclosure of written and recorded statements by potential witnesses. Given the underlying goals of open and early discovery, there is no reason to limit the disclosure obligation to only written and recorded statements made by witnesses who are actually called to testify for the prosecution at a pre-trial hearing or a trial that relate to the subject matter of their testimony. Other persons as well may possess pertinent information, even if the prosecution does not need to, or see fit to, call them to testify. Likewise, testifying prosecution witnesses may have made written or recorded statements that do not relate to the precise subjects of their direct examination testimony, yet still are relevant to the case in some other way. The defense should have the opportunity to review all such written and recorded statements that are known to the prosecutor.

Furthermore, under current law, the prosecution need not disclose the written and recorded statements of its witnesses until the time of the hearing or trial. 58 This provision mandates much earlier disclosure of all written and recorded statements made by any persons known to the prosecutor to possess information relevant to a charged offense or to a potential defense (unless a showing of good cause to withhold them is made). This will substantially improve the defendant’s ability to investigate, to promptly and intelligently determine whether the proper disposition is a guilty plea, and to plan an appropriate trial strategy.

Under a statutory scheme that requires the prosecutor to provide discovery fifteen days after arraignment, it would be practically unworkable to limit the prosecutor’s obligation to disclose written and recorded statements to only those statements made by witnesses whom the prosecution intends to call to testify and that relate to the subject matter of their testimony. Frequently prosecutors will not know at that early stage in the proceedings which specific witnesses will be testifying, let alone the precise scope of the “subject matter” of their prospective testimony. Normally those strategic decisions are made much closer to the pre-trial hearing or the trial. Prosecutors would not, therefore, be able to make accurate discovery determinations under a rule limited to statements by intended witnesses and/or to statements relating to the subject matter of their testimony.

Instead, the appropriate standard for early discovery of written and recorded statements is simply whether they were made by a knowledgeable witness, and whether they relate to the subject matter of the case or are otherwise relevant. Several other states have successfully used this approach for many years – including Florida and New Jersey – and it is also recommended by the ABA’s Criminal Justice Section Standards. 59 In sum, this across-the-board disclosure requirement not only is

58 See C.P.L. §§240.44(1), 240.45(1)(a); People v. Rosario , 9 N.Y.2d 286 (1961). 59 See N.J. CT. R. 3:13-3(c)(7); Fla. R. C.P. 3.220(b)(1)(B); Colo. R. Crim. P. 16 Part I (a)(1)(I); “ABA Criminal Justice Section Standards – Discovery,” Standard 11-2.1(a)(ii). 44 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

more fair and consistent with the goals of broad discovery, it also has the benefit of eliminating a key objection to early discovery: that the prosecutor may not know fifteen days after arraignment which individuals he or she is likely to call as witnesses at a hearing or a trial, and what precise subjects they will address in their testimony.

Finally, when describing the types of statements that must be turned over, this provision follows the formulation of the Florida rule and requires disclosure of all statements of a potential witness that are “written or recorded or summarized in any writing or recording.” It does not follow the less clear formulation of the New Jersey rule, which requires disclosure of all statements made by a potential witness that are “signed or unsigned.” The New Jersey rule’s language might be misconstrued as suggesting that only statements that the witness had an opportunity to sign or not to sign (as opposed to such statements plus statements that were memorialized or summarized later by another person) are discoverable. The Florida formulation is consistent with current New York law, which requires disclosure of all written or recorded statements regardless of whether they were personally written by the witness or they were memorialized or summarized by another person. 60

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose only written or recorded statements by those witnesses whom it calls to testify at a pre-trial hearing or a trial which relate to the subject matter of their testimony. Furthermore, the disclosures need not be made until the time of the hearing or the trial. See C.P.L. §§240.44(1), 240.45(1)(a).

(f) Intended expert opinion evidence, including the name, business address, current curriculum vitae, and a list of publications of each intended expert witness, and all reports prepared by the expert that pertain to the case, or if no report is prepared, a written statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. This subdivision does not alter or in any way affect the procedures, obligations or rights set forth in section 250.10. If in the exercise of reasonable diligence this information is unavailable for disclosure within the time period specified in subdivision one (1) of section 245.10, that period shall be stayed without need for a motion pursuant to section 245.75; except that the disclosure shall be made as soon as practicable and not later than sixty (60) calendar days before trial, unless an order is obtained pursuant to section 245.75.

SOURCES OF PROPOSED C.P.L. §245.20(1)( F): The first sentence of this provision are modified from Mass. R. Crim. P. 14(a)(1)(A)(vi); N.J. CT. R. 3:13- 3(c)(9).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( F): This provision broadens current New York law regarding disclosure of information about potential expert witnesses. Scientific and other expert opinion evidence has become increasingly complex and specialized. Often it takes considerable time for prosecutors and defense lawyers to investigate their own and the opposing party’s potential expert witnesses, and to prepare to address such evidence at a trial.

60 See People v. Adger , 75 N.Y.2d 723 (1989); People v. Consolazio , 40 N.Y.2d 446 (1976); People v. Gourgue , 239 A.D.2d 357 (2d Dept. 1997).

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Competent preparation frequently requires the lawyer to locate, retain, and consult with an expert; the creation of an expert’s report; and researching the qualifications of the opposing party’s expert and the accuracy and limitations of his or her prospective testimony. Accordingly, both parties should be required to inform the opposing party of the nature of their expected expert opinion evidence early in the case. Without receiving such notification, it may be practically impossible for lawyers to consult and call their own expert, and to properly subject the opposing party’s expert to full and fair cross-examination.

In particular, it is appropriate to require the party calling an expert witness to provide a written summary of the grounds for the expert’s opinions, when the expert does not produce a written report summarizing them. This information is critical for consulting meaningfully with another expert, assessing the accuracy and limitations of the expert’s conclusions, and adequately preparing for trial.

Nevertheless, as a practical matter, it may be unreasonably burdensome or even impossible in various situations for the prosecutor to retain and consult with a potential expert witness, and for the expert to analyze the evidence and make findings, within fifteen days of the defendant’s arraignment. The third sentence of this provision, therefore, allows a prosecutor to provide later discovery when necessary without having to make a motion to amend the timeframe of discovery under section 245.75. The prosecutor still must exercise reasonable diligence to obtain and disclose the information as soon as practicable, but this provision recognizes that often this will be impossible and later disclosure is acceptable. It stipulates that the disclosure must be made at least sixty calendar days before trial, however, because the defense will also need enough time to consult with its own expert and to obtain and disclose reciprocal discovery pursuant to subdivision three (3) of this section. The court can alter this timeframe as well when necessary, by issuing an order under section 245.75.

In those cases where the defendant’s reciprocal discovery prompts the prosecution to offer expert opinion evidence, section 245.60 (addressing the parties’ continuing duty to disclose subsequently acquired discoverable information) includes a specific directive that the prosecutor must disclose the expert opinion evidence expeditiously. Finally, the second sentence of this provision stipulates that all of the current requirements under C.P.L. §250.10 for the defendant to file a written notice when he or she intends to introduce psychiatric evidence are unaffected by this provision.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose reports and documents concerning physical or mental examinations and scientific tests or experiments or comparisons, when either they were performed or requested by law enforcement, they were made by an intended prosecution witness, or the prosecution intends to introduce them at trial. See C.P.L. §240.20(1)(c). When the defense intends to offer psychiatric evidence, it must file a pre-trial notice specifying the nature of the proffered defense and providing enough information to enable the prosecution to discern the general nature of the alleged psychiatric malady and its relationship to the proffered defense. See C.P.L. §250.10; People v. Almonor , 93 N.Y.2d 571, 580-81 (1999). The parties also must disclose written/recorded statements made by their testifying expert witnesses which concern the subject matter of their testimony, but they need not do so until the time of the pre-

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trial hearing or trial. See C.P.L. §§240.44(1), 240.45. The parties are not otherwise required to provide pre-trial discovery regarding the identity of expert witnesses. See C.P.L. §240.20; see also People v. Miller , 106 A.D.2d 787 (3rd Dept. 1984).

SOURCES OF PROPOSED C.P.L. §245.20(1)( G): This provision is modified from N.J. CT. R. 3:13-3(c)(8); Ariz. R. Crim. P. 15.1(b)(3); Mass. R. Crim. P. 14(a)(1)(A)(vii); Fla. R. C.P. 3.220(b)(1)(B); Mich. CR 6.201(B)(2); C.P.L. §§240.20(1)(e), (g).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( G): This provision broadens current law regarding the disclosure of various evidence and information obtained during law enforcement’s investigation of the case. In particular, it requires prompt disclosure of all police reports and other law enforcement agency reports that are within the prosecution’s possession and relate to the subject matter of the case or are otherwise relevant (unless a showing of good cause is made for a protective order to withhold them). It also requires disclosure of other police paperwork and log entries and notes, the prosecutor’s intended exhibits, electronic recordings, photographs, drawings and tangible objects.

Police reports and other law enforcement agency reports are a primary source of information for the defendant regarding the case. They permit the defense lawyer to perform an intelligent investigation, to confirm the strength of the prosecution’s evidence (when appropriate) to a defendant considering a guilty plea offer, and to plan an appropriate trial strategy. Many other large states with big cities have presumptively required their early disclosure for years – including Arizona, Florida, Massachusetts, Michigan, New Jersey, North Carolina and others – except when the prosecution seeks a protective order to redact or withhold them.61 This longstanding experience in other states confirms that the discovery rule is fully practicable, and that it does not compromise efficient and effective law enforcement. In contrast, under current New York law, police reports and other law enforcement agency reports do not have to be disclosed except to the extent that portions of them either document a scientific test or experiment [see C.P.L. §240.20(1)(c)]; contain a statement by a defendant or a co-defendant [see C.P.L. §240.20(1)(a)]; or contain a statement by a testifying prosecution witness (and those statements need not be disclosed until the time of a pre-trial hearing or a trial) [see C.P.L. §§240.44(1), 240.45(1)].

The provision further specifies that police officers’ “memo book entries and log entries and notes” also must be disclosed. Given the goals of full and early

61 See Ariz. R. Crim. P. 15.1(a), (b)(3); Colo. R. Crim. P. 16 Part I (a)(1)(I); Fla. R. C.P. 3.220(b)(1)(B); Mass. R. Crim. P. 14(a)(1)(A)(vii); N.J. CT. R. 3:13-3(c)(8); Mich. CR 6.201(B)(2); N.C. Gen. Stat. §§15A-903(a)(1), (a)(3)(c).

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discovery, the defense should have access to these documents as well (not just formal police reports), because frequently they contain information useful for investigation, for evaluating guilty plea offers, and for efficient and informed trial preparation. All of these documents already must be preserved by law enforcement under current New York law, to permit their disclosure to the defense in the event the police officer who wrote them is called to testify concerning their subject matter.62 The current limitations that such prior written statements are discoverable only when the prosecution actually calls the witness who made them, and when they relate to the precise subjects of his or her testimony, are unsound (as explained in the Commentary to subdivision [1][e]).

Regarding discovery of other physical evidence (including intended exhibits, electronic recordings, photographs, drawings and tangible objects), this provision eliminates certain unnecessary restrictions from current New York law that are inconsistent with the goals of full and open discovery. First, it eliminates the limitation that the prosecution need disclose only those tapes or other electronic recordings that the prosecutor intends to introduce [see C.P.L. §240.20(1)(g)]. Second, it eliminates the limitations that the prosecution need disclose only those photographs or drawings that it intends to introduce, or that were made by a public servant engaged in law enforcement, or that were made by a person whom the prosecution intends to call as a witness [ see C.P.L. §240.20(1)(d)]. Third, it eliminates the limitation that the prosecution need disclose other property only when it was obtained from the defendant or a co-defendant [ see C.P.L. §240.20(1)(f)]. All of these restrictions are inappropriate because the defense should be allowed to undertake a full review of all the potential evidence, so as to determine whether or not to try to make use of the items in pre-trial investigations or at a trial.

Finally, the provision maintains the requirement of current New York law that the prosecution must disclose all photographs, photocopies, or reproductions made by or at the direction of law enforcement personnel of any property prior to its release pursuant to P.L. §450.10, irrespective of whether the prosecution intends to introduce them at trial. See C.P.L. §240.20(1)(e).

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no requirement for the prosecution to disclose all police reports, other law enforcement agency reports, and police officers’ memo book entries and log entries and notes relating to the case. Instead, the prosecution need only disclose portions of such documents that either: relate to discoverable scientific tests or experiments [see C.P.L. §240.20(1)(c)]; contain written statements by the defendant or co-defendants [see C.P.L. §240.20(1)(a)]; or contain written statements by a testifying prosecution witness concerning the subject matter of his or her testimony (but those statements need not be disclosed until the time of the pre-trial hearing or the trial) [see C.P.L.

62 See New York City Police Department Patrol Guide , Procedure 211-18 (effective 1/1/00)(stating that it is “imperative” that the prosecutor be given “all” reports, notes, memoranda, test results, or any forms prepared by police officers in connection with the facts and circumstances of a case, “no matter how insignificant the member feels the notes or memoranda might be”); see also People v. Rosario , 9 N.Y.2d 286 (1961); People v. Banch , 80 N.Y.2d 610 (1992); People v. Joseph , 86 N.Y.2d 565 (1995); People v. Wallace , 76 N.Y.2d 953 (1990); People v. Consolazio , 40 N.Y.2d 446 (1976); People v. Perez , 65 N.Y.2d 154 (1985); People v. DaGata , 86 N.Y.2d 40, 45 (1995); People v. Jackson, 237 A.D.2d 179 (1st Dept. 1997); People v. Palma , 224 A.D.2d 363, 364-65 (1st Dept. 1996).

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§§240.44(1), 240.45(1)]. See People v. Colavito , 87 N.Y.2d 423, 427 (1996); C.P.L. §§240.20, 240.40.

Furthermore, under current law, the prosecution must disclose only those tapes or electronic recordings that the prosecutor intends to introduce at trial. See C.P.L. §240.20(1)(g). It must disclose only those photographs or drawings that the prosecutor intends to introduce at trial, or that were made by a public servant engaged in law enforcement or by a person whom the prosecution intends to call as a witness. See C.P.L. §240.20(1)(d). It must disclose other tangible property only when it was obtained from the defendant or a co-defendant. See C.P.L. §240.20(1)(f). And it must disclose any photograph, photocopy or reproduction made by or at the direction of law enforcement personnel of any property prior to its release pursuant to P.L. §450.10. See C.P.L. §240.20(1)(e).

SOURCES OF PROPOSED C.P.L. §245.20(1)( H): This provision is modified from N.J. CT. R. 3:13-3(c)(3); Mass. R. Crim. P. 14(a)(1)(A)(vii); Colo. R. Crim. P. 16 Part I (a)(1)(III); Fla. R. C.P. 3.220(b)(1)(J); C.P.L. §240.20(1)(c).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( H): This provision broadens current law regarding the discovery of reports and documents about physical/mental examinations and scientific tests and experiments, by eliminating the unnecessary restrictions that such materials need be disclosed only when the prosecutor intends to introduce them at trial, or when they were made by or at the request of a public servant engaged in law enforcement or by a person whom the prosecutor intends to call as a witness. See C.P.L. §240.20(1)(d). Instead, such items should be made available whenever they pertain to the subject matter of the case or are otherwise relevant, so that the defendant can undertake a complete investigation, intelligently determine whether the proper disposition is a guilty plea, and plan an appropriate trial strategy. The broad term “documents” includes underlying written data and case notes.63

The provision follows the Massachusetts rule by specifying that reports and documents regarding physical/mental examinations of “any person” must be disclosed, provided that they relate to the subject matter of the case or are otherwise relevant. Finally, like the reciprocal discovery provision in C.P.L. §240.30, it spells out that scientific “comparisons” (not only “tests” and “experiments”) must be disclosed, and that “results” of examinations, tests and experiments (not only “reports” and “documents” relating to them) also must be disclosed.

63 See generally People v. DaGata , 86 N.Y.2d 40, 45 (1995)(“the notes requested by defendant should have been provided. Defendant could have used the notes to determine whether further inquiry would possibly lead to information favorable to defendant’s case. Defendant might have challenged [1] the FBI’s methodology in general, [2] the type of DNA testing used, [3] storage methods or [4] whether other tests or analyses could have resulted in a more proficient reading of the materials analyzed. Additionally, it was clear from the FBI’s report that materials and analyses other than the report itself were involved. Thus, the People were on notice that the FBI probably possessed substantially more detailed information than the one-page report provided. We hold that it was error for the trial court to deny access to the FBI notes to the defendant”).

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PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose written reports and documents concerning a physical/ mental examination and a scientific test or experiment only when it relates to the case and either the prosecutor intends to introduce it at trial, it was made by or at the request of a public servant engaged in law enforcement, or it was made by a person whom the prosecutor intends to call as a witness. See C.P.L. §240.20(1)(c).

SOURCES OF PROPOSED C.P.L. §245.20(1)( I): The first clause of this provision is modified from C.P.L. §240.20(1)(f); Fla. R. C.P. 3.220(b)(1)(F); N.J. CT. R. 3:13-3(c)(1). The remainder of the provision is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( I): This provision’s first clause follows the Florida and New Jersey rules and is similar to C.P.L. §240.20(1)(f) in requiring the prosecutor to disclose all “tangible objects” obtained from or allegedly belonging to the defendant. The Florida and New Jersey provisions do not specify that property recovered from co-defendants must be disclosed, but current New York law does so with respect to co-defendants to be tried jointly, in C.P.L. §240.20(1)(f). This requirement is maintained because the defendant should be informed of all the potentially incriminating items possessed by and recovered from all of the persons who are alleged to have committed the charged crimes. Such information is useful for investigating the case, assessing guilty plea offers, and preparing trial strategy.

The Florida and New Jersey rules go beyond C.P.L. §240.20(1)(f) by specifying that not only property “obtained from” but also property “belonging to” the defendant must be disclosed. The defendant should be informed of potentially incriminating items that were not within the physical possession of the defendants when they were obtained (such as items recovered from their homes, vehicles or other locations), but which the prosecution contends at some point belonged to and were possessed by them. This will enable the defense to intelligently and efficiently litigate both the pre-trial and the trial issues.

The provision aims to provide enough information to the defense lawyer to comprehensively and efficiently litigate all of the pre-trial suppression motions concerning potentially suppressible items. It therefore requires the prosecutor to designate all the potentially suppressible objects recovered from the defendant during a search and seizure by law enforcement; the locations from which the objects were

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recovered; and the theories under which the prosecutor would establish that the defendant possessed them. This will rectify a substantial problem in current New York law.

Specifically, although C.P.L. §710.30 requires the prosecution to give notice to the defense within fifteen days of arraignment of any statements made by the defendant to a public servant and of any identification procedures involving the defendant, there is no equivalent requirement that the prosecutor provide prompt notice of the potentially suppressible physical evidence . Consequently the defense lawyer often does not have the necessary information to timely seek all of the suppression hearings to which the defendant may be entitled under Article 710 and decisional law. 64 (While C.P.L. §240.20[1][f] requires disclosure of “other property” obtained from the defendant and co-defendants to be tried jointly, in practice that discovery normally is provided after the time in which the defendant is required to move for suppression hearings;65 and it also does not require a designation of which property was physically or constructively possessed by the defendant and recovered in a search or seizure, and hence would be potentially suppressible.)66

The conundrum for the defense lawyer is that, at the time that motions to suppress evidence must be filed pursuant to C.P.L. §§255.20 and 710.40, commonly he or she does not know what items of physical evidence the police recovered from the defendant in a search or seizure, and, thus, could be the subject of a suppression hearing. For instance, the defendant may not have seen the police recover certain property, especially if it was not taken from his or her person and the prosecution will be relying on a theory of “constructive” possession ( i.e. , a contention that, although the defendant did not physically possess the item, he constructively did so by exercising “dominion and control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized”). 67 Yet decisional law interpreting C.P.L. §710.60 has established that, to obtain a pre-trial hearing into the possible need to suppress physical evidence, the defense must submit sworn allegations setting forth specific factual and legal grounds that may require the suppression of particular physical evidence. 68 The prosecution should be required, therefore, to specify all of the potentially suppressible physical evidence, i.e. , the tangible objects that it contends the defendant physically or constructively possessed, which were recovered from a particular location during a search or seizure by a police officer or other public servant or an agent thereof.

The prosecution should also be required to designate the applicable theories of possession by which it contends that the defendant possessed each item ( i.e. ,

64 See, e.g. , People v. Mendoza , 82 N.Y.2d 415 (1993); People v. Burton , 6 N.Y.3d 584 (2006). 65 See C.P.L. §§240.80(3), 255.20(1), 710.40(1). 66 See, e.g. , 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. 79 (concluding that New York’s current discovery practices make it “often difficult if not impossible for defense counsel to adequately file motions”). 67 See, e.g. , People v. Manini , 79 N.Y.2d 561 (1992); People v. Rivera , 82 N.Y.2d 695 (1993). 68 See, e.g. , People v. Mendoza , 82 N.Y.2d 415 (1993); People v. Burton , 6 N.Y.3d 584 (2006).

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physical possession, constructive possession, or possession pursuant to a statutory presumption such as those in P.L. §§220.25 and 265.15). Among other reasons, this is appropriate because decisional law has held that, when the prosecution intends to rely solely on a statutory presumption to establish possession, the defendant is not required make any factual allegations of an expectation of privacy in the place or item searched to be entitled to a suppression hearing. 69

Additionally, the prosecution should be required to specify any items that it contends the defendant possessed but “abandoned” prior to his or her seizure and arrest by the police. This is appropriate because decisional law has established that the key legal issue of whether there was an intentional and voluntary abandonment of an item (such that it is not suppressible by the defendant) or whether, in contrast, the property was spontaneously discarded by the defendant in reaction to an unlawful approach or other illegal actions by the police (such that it is potentially suppressible by the defendant) is a determination for the court to resolve at a hearing.70 The defense lawyer must be promptly informed of the recovery of the item that the prosecution alleges was voluntarily abandoned, in order timely to seek a hearing for the court to decide that question when appropriate. Notably, if the prosecutor decides to rely on an “abandonment” theory (or otherwise decides to change the designated theory of the defendant’s possession of an item) only after having provided the initial discovery materials, he or she can provide an updated notification to the defendant of such a change in theory pursuant to the continuing duty of disclosure under section 245.60.

In sum, the defense lawyer needs to learn the information at issue in this provision early in the case, so as to intelligently, comprehensively, and efficiently make the factual allegations and motions required under Article 710 and to raise all of the potential legal issues at the outset. Current New York law provides adequate notification to seek suppression hearings involving statements made by the defendant and identification procedures involving the defendant, but it fails to provide the defense lawyer with sufficient notice to seek the necessary suppression hearings involving physical evidence allegedly possessed by the defendant. This provision rectifies the problem and will result in greater fairness and efficiency in the litigation of suppression issues.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose any property “obtained from” the defendant or a jointly tried co-defendant. See C.P.L. §240.20(1)(f). Technically the prosecution is required to disclose the material within fifteen days of the defendant’s “demand” for it (which must be made within thirty days of arraignment) or “as soon thereafter as practicable,” but in practice normally it is turned over after the deadline for the defendant to move for suppression hearings (i.e. , within 45 days of arraignment). See

69 See People v. Millan , 69 N.Y.2d 514 (1987). 70 See, e.g. , People v. Ramirez-Portoreal , 88 N.Y.2d 99 (1996); People v. Howard , 50 N.Y.2d 583 (1980); People v. Boodle , 47 N.Y.2d 398 (1979); see generally People v. Bouton , 50 N.Y.2d 130, 135-36 (1980)(“it is the responsibility of the neutral court, not the police, to determine whether the latter were justified in making the serious intrusion that the deprivation of another’s liberty constitutes”); People v. Chase , 85 N.Y.2d 493 (1995)(ruling that the defendant had the right to have the court at a suppression hearing – and not the prosecutor by denying statutory notice – decide the circumstances under which a statement was made and in particular whether it was really uttered “spontaneously”).

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C.P.L. §§240.80(3), (1), 255.20(1), 710.40(1). The prosecution is not required to disclose all property allegedly “belonging to” the defendant or a co-defendant, let alone to promptly designate which property was recovered from the defendant during a search or seizure by a police officer or other public servant and the location in which it was found; which theories of possession it will invoke (i.e. , physical, constructive, or by statutory presumption); and whether the property was recovered by a police officer or other public servant after allegedly being abandoned by the defendant.

SOURCES OF PROPOSED C.P.L. §245.20(1)( J): The first sentence of this provision is modified from Ariz. R. Crim. P. 15.1(b)(8); see also 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). The two subparts of this provision are not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( J): This provision broadens current law by requiring the prosecutor to promptly disclose all known evidence and information favorable to the defendant, without engaging in further speculation about whether it would ultimately be “material” to a finding of guilt. Currently the prosecutor must disclose only the far more limited category of “materially” exculpatory evidence – in other words, just that evidence favorable to the defendant that, in the prosecutor’s own assessment, creates a “reasonable probability” that the defendant would be acquitted if it were handed over (i.e. , so-

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called “ Brady material”). 71 Furthermore, under current practice and constitutional law, courts routinely permit prosecutors to disclose materially exculpatory evidence for the first time during the trial , provided only that the defendant still has a “meaningful” opportunity to use it at trial.72

As the discovery rules in several other states have already recognized, fundamental fairness and the goal of averting wrongful convictions require that all exculpatory or impeaching information known to the prosecution should be timely disclosed to the defendant.73 Early disclosure gives the defense an opportunity to undertake intelligent investigations that can develop exculpatory leads and preserve exculpatory evidence, and it enables the defense to incorporate exculpatory evidence into its case. This reduces the possibility that innocent people will be convicted. 74

71 See Eugene Cerruti, “Through the Looking-Glass at the Brady Doctrine: Some New Reflections on White Queens, Hobgoblins, and Due Process,” 94 Ky. L. J. 211 (2005); Christopher Deal, “ Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury,” 82 N.Y.U. L. Rev. 1780 (2007); see, e.g. , U.S. v. Coppa , 267 F.3d 132, 135 (2d Cir. 2001)(“[constitutional due process] does not, however, require the prosecution to disclose all exculpatory and impeachment material; it need disclose only material that, if suppressed, would deprive the defendant of a fair trial”); accord People v. Vilardi , 76 N.Y.2d 67, 77 (1990); Kyles v. Whitley , 514 U.S. 419, 434 (1995). If the defense has specifically requested the potentially exculpatory evidence, then under New York law the prosecution must disclose it if there is a “reasonable possibility” (as opposed to a “reasonable probability”) that its disclosure may contribute to the outcome of the case. See People v. Vilardi , 76 N.Y.2d 67, 77 (1990). 72 See, e.g. , People v. Cortijo , 70 N.Y.2d 868 (1987); People v. Fuentes , 48 A.D.3d 479 (2d Dept. 2008); People v. Monroe , 17 A.D.3d 863 (3rd Dept. 2005); see also U.S. v. Coppa , 267 F.3d 132, 142 (2d Cir. 2001)(“the prosecutor must disclose ‘material’ … exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made”). 73 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); Minn. R. Crim. P. 9.01 Subd. 1 (6); Mo. R. Crim. P. 25.03(A)(9); Mich. CR 6.201(B)(1); Cal. Penal Code §1054.1(e); “ABA Criminal Justice Section Standards – Discovery,” Standard 11-2.1(a)(viii); New York State Rules of Professional Conduct, Rule 3.8(b) – “Special Responsibilities of Prosecutors and Other Government Lawyers” (effective April 1, 2009)(New York’s recently adopted ethics rules direct prosecutors to “make timely disclosure” of all known evidence or information “that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence”). 74 In addition to the state discovery rules listed in the previous footnote, it is noteworthy that the Advisory Committee on Criminal Rules of the Judicial Conference of the United States forwarded for publication in 2007 a proposal to require federal prosecutors to automatically disclose all known exculpatory and impeachment evidence. See Federal Judicial Center, “ Brady v. Maryland Material in the United States District Courts: Rules, Orders, and Policies” (2007), pp. 23-24, available at www.uscourts.gov/rules/ BradyFinal2007 . Some United States District Courts also have rules requiring the disclosure of all such information “without regard to materiality.” See id. at 12-13. Moreover, ethical canons and the American Bar Association’s standards of professional practice also suggest that prosecutors should disclose all known exculpatory information to the defense (but in practice there are ordinarily no professional penalties when a prosecutor does not live up to these ethical goals). See ABA Model Rules of Professional Conduct, Rule 3.8 (d) (“The prosecutor in a criminal case shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal”); see also DR 7-103 (B) (“A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant who has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, 54 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

In contrast, under New York’s backwards current discovery rules, prosecutors are under no legal duty ever to inform the defense about potentially exculpatory evidence or information within the state’s knowledge or possession that falls short of the high “materiality” standard. Quite simply, letting prosecutors effectively hide exculpatory information is inconsistent with the goals of a fair criminal justice system, and it has been proven to contribute to wrongful convictions.75 Requiring automatic and early disclosure of all known exculpatory information will substantially improve the defense’s ability to find exculpatory evidence and to present it to the fact-finder, and thus it will help to ensure more accurate verdicts.

This provision also rectifies other key problems that plague current New York discovery law regarding exculpatory evidence. Most problematically, under current law the prosecutor is given virtually exclusive discretion to gauge the amorphous quantum of when the cumulative amount of known exculpatory information has become “materially” exculpatory, so that disclosure is required. Among other deficiencies, this rule is inadequate because the prosecutor frequently does not know the content or context of the likely defense theory of the case at the time disclosure decisions are made. Hence, he or she may have little basis for making accurate materiality decisions.

By requiring automatic and early disclosure of all evidence or information which tends to negate or mitigate the defendant’s guilt – a standard drawn from the discovery rules in Arizona and Massachusetts – this provision eliminates this inherently problematic “gatekeeper” analysis for disclosures. It also largely solves the quandary of the fox serving as henhouse guard.76 It even greatly simplifies prosecutors’ jobs, insofar as there is no longer the need for them to continually make discretionary judgment calls about the cumulative weight of known potentially exculpatory information and whether it has reached the level of “materiality,” based on incomplete knowledge and inevitable speculation about the defense case. 77

mitigate the degree of the offense or reduce the punishment”); Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, n.111, 112 (2006); Stanley Z. Fisher, “The Prosecutor’s Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons From England,” 68 Fordham L. Rev. 1379, 1436 (2000). 75 See, e.g. , The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), pp. 10-15; Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 561-73 (2006); Bennett L. Gershman, “Reflections on Brady v. Maryland ,” 47 S. Tex. L. Rev. 685, n.18 (2006); www.innocenceproject.org/understand/Government-Misconduct.php . 76 See generally Scott E. Sundby, “Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland ,” 33 McGeorge L. Rev. 643, 653-55 (2002)(“the thought process [required by Brady ’s materiality test] posits a prosecutor who is capable of a Zen-like state of harmonizing objective and subjective beliefs, simultaneously recognizing that the evidence creates a reasonable probability that a reasonable jury will entertain a reasonable doubt while still subjectively believing that continued prosecution is warranted.… To both trigger pre-trial Brady disclosure and remain ethical, the prosecutor simultaneously must believe that she possesses exculpatory evidence that ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in a [guilty] verdict,’ and that continued prosecution is still warranted despite the strength of the exculpatory evidence. Such a case is likely to be a rare one”). 77 See generally 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, 310 (2008) 55 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

In defining the categories of evidence and information that must be disclosed, this provision does not use the ambiguous legal term “exculpatory” – the meaning and scope of which have been a subject of profound confusion and disputes among practitioners for decades. 78 As commentators have convincingly argued, use of this unclear and problematic term in decisional law – together with the lack of specific statutory guidance for prosecutors concerning the parameters of their disclosure obligations – is a key factor that impedes proper compliance with the rules.79 Accordingly, this provision gives prosecutors more specific guidance as to

(“The beauty of full open-file discovery is obvious as a remedy for the difficulty of subjective choice in a competitive adversarial environment. It does not require a prosecutor to make difficult discretionary decisions…. Disclosing all evidence, or realistically moving strongly in that direction, means that most Brady evidence will be disclosed as part of the routine”); id. at 308 (“The largest and most important message of these cases [ i.e. , the 2006 Duke Lacrosse case and others in which defendants were exonerated after prosecutors had improperly withheld exculpatory evidence] is that full disclosure solves, or at least helps solve, Brady issues”); Robert G. Morvillo et al., “Motion Denied: Systematic Impediments to White Collar Criminal Defendants’ Trial Preparation,” 42 Am. Crim. L. Rev. 157, 170 (2005)(“[ Brady ’s disclosure standard] conjures a totally illusory neutral prosecutor who is unaffected in any way by a desire to win. How can a prosecutor, confident in his or her own judgment that the evidence will meet the reasonable doubt standard, be tasked with determining the point at which, if ever, defense counsel needs particular evidence in order to use it effectively? Brady material often requires the defendant to undertake a time consuming investigation, and the prosecution cannot possibly know how long that investigation will take, or what it will reveal”). 78 See generally Bennett L. Gershman, “Reflections on Brady v. Maryland ,” 47 S. Tex. L. Rev. 685, n.24 (2006)(“That prosecutors view their disclosure obligation extremely narrowly is confirmed by anecdotal evidence. For example, Judge Jon Newman of the Second Circuit Court of Appeals, when he was a United States Attorney, posed to a large audience of prosecutors a hypothetical bank robbery in which the defendant was identified by two or three tellers and one or two customers…. Another customer was located who stated that the defendant was not the perpetrator. According to Judge Newman, ‘The question I put to these prosecutors was, do you believe you should disclose to the defense the name of the witness who, when he viewed the suspect, said “that is not the man?”’ Only two prosecutors felt they should disclose the information. ‘Yet I was putting to them what I thought was the easiest case – the clearest case of disclosure of exculpatory information!’”); id. (“In a survey of New York State prosecutors conducted by the John Jay Legal Clinic of Pace Law School relating to a domestic violence prosecution in which the defendant has been charged with assault, aggravated harassment, and menacing, prosecutors were asked whether they would disclose to the defense statements made by a hypothetical victim. Sixty-two questionnaires were sent out and thirty-two prosecutors offices responded. Prosecutors were asked whether the following statements by the victim were Brady evidence that should be disclosed: [1.] ‘It was all my fault.’ Twelve prosecutors said it was Brady ; twelve said it was not Brady . [2.] ‘I instigated the whole encounter.’ Ten said it was Brady ; thirteen said it was not Brady . [3.] ‘I made him hit me.’ Twelve said it was Brady ; twelve said it was not Brady . [4.] ‘He didn’t hurt me.’ Twenty-three said it was Brady ; seven said it was not Brady . [5.] ‘I hit him too.’ Fourteen said it was Brady ; fourteen said it was not Brady . [6.] ‘I exaggerated what happened.’ Eighteen said it was Brady ; ten said it was not Brady . [7.] ‘What’s in the police report isn’t true.’ Twenty-three said it was Brady ; three said it was not Brady ”)(citations omitted). 79 See, e.g. , Peter A. Joy, “The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System,” Wis. L. Rev. 399, 400 (2006)(“prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutorial misconduct, which create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct”); Eugene Cerruti, “Through the Looking-Glass at the Brady Doctrine: Some New Reflections on White Queens, Hobgoblins, and Due Process,” 94 Ky. L. J. 211 (2005); Christopher Deal, “Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury,” 82 N.Y.U. L. Rev. 1780 (2007); Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 561-73 (2006); Bennett L. Gershman, “Reflections on Brady v. Maryland ,” 47 S. Tex. L. Rev. 685, 688 (2006)(“ Brady violations are among the most pervasive and recurring types of 56 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

what evidence and information must be disclosed, as well as regarding certain common circumstances that do not exempt evidence and information from disclosure. It also spells out that not only tangible exculpatory “evidence” but also intangible exculpatory “information” must be disclosed.

First, the provision requires early disclosure of: “All evidence and information which tends to negate the defendant’s guilt or to mitigate the defendant’s culpability as to a charged offense, or which tends to support a potential defense thereto, or which tends to support a motion to suppress evidence on constitutional grounds, or which would tend to reduce the punishment of the defendant.” This standard addresses and clarifies several misunderstandings harbored by some prosecutors, even under the constitutional due process disclosure rules. In particular, sometimes prosecutors mistakenly conclude that only evidence that would completely exonerate the defendant need be disclosed – as opposed to evidence that, if it were believed, would tend to reduce the level of the defendant’s culpability to a less serious charge, or support a mitigating defense, or undercut the proof of an element of the charged crime.80 Furthermore, although the Court of Appeals has made clear that evidence and information that tends to support a motion to suppress evidence on constitutional grounds constitutes exculpatory material that must be timely disclosed, some prosecutors neglect this rule. 81 This provision therefore specifies all of these important ways in which information can be favorable to the defendant, and hence must be timely disclosed.

Second, the provision also specifies – in subpart (i) – key categories of potentially exculpatory evidence and information which prosecutors must disclose. This clear directive provides important guidance, not only to help ensure compliance with the rule, but also to lay to rest misconceptions and to reduce inefficient litigation over the scope of the disclosure requirements by unambiguously establishing that certain common types of favorable information are discoverable. Decisional law has recognized that each of these types of potentially exculpatory information must be disclosed when the “materiality” threshold is met – and this provision extends those requirements to all such information, not just information that the prosecutor deems “material.” Specifically, subpart (i) states that potentially exculpatory evidence and information that the prosecutor must disclose “includes but is not limited to: an overt or tacit leniency deal with a potential prosecution witness or an informant; 82 a potential prosecution witness’s or an informant’s prior inconsistent statements; 83

prosecutorial violations…. Numerous studies have documented widespread and egregious Brady violations”); Stanley Z. Fisher, “The Prosecutor’s Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons From England,” 68 Fordham L. Rev. 1379 (2000); Federal Judicial Center, “ Brady v. Maryland Material in the United States District Courts: Rules, Orders, and Policies” (2007), p. 6, available at www.uscourts.gov/ rules/BradyFinal2007 (noting that in 2003 the American College of Trial Lawyers proposed rules to “clarify both the nature and scope of favorable information” under Brady ). 80 See, e.g. , DiSimone v. Phillips , 461 F.3d 181 (2d Cir. 2006). 81 See, e.g. , People v. Geaslen , 54 N.Y.2d 510 (1981); People v. Williams , 7 N.Y.3d 15 (2006). 82 See, e.g. , People v. Cwikla, 46 N.Y.2d 434 (1979); People v. Steadman , 82 N.Y.2d 1 (1993); People v. Novoa , 70 N.Y.2d 490 (1987); People v. Conlan , 146 A.D.2d 319 (1st Dept. 1989). 83 See, e.g. , Kyles v. Whitley , 514 U.S. 419 (1995); Boyette v. Lefevre , 246 F.3d 76 (2d Cir. 2001); People v. Bond , 95 N.Y.2d 840 (2000); People v. Frantz , 57 A.D.3d 692 (2d Dept. 2008); People v. Gantt , 13 57 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

information indicating a potential prosecution witness’s or an informant’s possible bias, interest, hostility, or reasons to fabricate;84 information that tends to undercut the believability of a potential prosecution witness’s or an informant’s factual account; 85 prior conduct, misconduct and criminal acts that tend to undercut the credibility of a potential prosecution witness or an informant; 86 and information that tends to undercut the proof of an element of a charged offense or that otherwise tends to indicate the defendant may not be guilty.” 87

Third, the provision specifies – in subpart (ii) – certain common circumstances that do not exempt potentially exculpatory evidence and information from disclosure. Decisional law has recognized that each of these circumstances (except for the information’s being known to the defendant) does not provide a basis for the prosecution’s failure to disclose “materially” exculpatory information. This provision makes it clear to prosecutors that these circumstances also do not provide grounds for failing to disclose all other potentially exculpatory information within the scope of this rule (i.e. , including such information that falls short of the “materiality” threshold). Specifically, subpart (ii) states that disclosure of such information is required “even if the prosecution doubts the believability or usefulness to the defendant of the evidence or information,88 or believes it can be reconciled with the prosecution’s other evidence; 89 or if it has both an inculpatory and an exculpatory effect; 90 or if it relates to a potential defense different from that which has been announced or is being pursued; 91 or if it has not been memorialized or

A.D.3d 204 (1st Dept. 2004); People v. White , 200 A.D.2d 351 (1st Dept. 1994); People v. Janota , 181 A.D.2d 932 (3rd Dept. 1992); see also Napue v. Illinois , 360 U.S. 264 (1959). 84 See, e.g. , Banks v. Dretke , 540 U.S. 668 (2004); People v. Wright , 86 N.Y.2d 591 (1995); People v. Baxley , 84 N.Y.2d 208 (1994); People v. Colon , 55 A.D.3d 444 (1st Dept. 2008); People v. Stein , 10 A.D.3d 406 (2d Dept. 2004); People v. Velez , 118 A.D.2d 116 (1st Dept. 1986). 85 See, e.g. , People v. Hunter , 11 N.Y.3d 1 (2008); People v. Davis , 81 N.Y.2d 281 (1993); People v. Lackey , 48 A.D.3d 982 (3rd Dept. 2008); People v. Garcia , 46 A.D.3d 461 (1st Dept. 2007); People v. Gantt , 13 A.D.3d 204 (1st Dept. 2004); People v. Lantigua , 228 A.D.2d 213 (1st Dept. 1996); People v. Clausell , 182 A.D.2d 132 (2d Dept. 1992). 86 See, e.g. , People v. Hunter , 11 N.Y.3d 1 (2008); People v. Lackey , 48 A.D.3d 982 (3rd Dept. 2008); People v. Monroe , 17 A.D.3d 863 (3rd Dept. 2005); People v. Santos , 306 A.D.2d 197 (1st Dept.), aff’d , 1 N.Y.3d 548 (2003); People v. Pressley , 234 A.D.2d 954 (4th Dept. 1996), aff’d , 91 N.Y.2d 825 (1997); People v. Valentin , 1 A.D.3d 982 (4th Dept. 2003); see also U.S. v. Agurs , 427 U.S. 97 (1976). 87 See, e.g. , DiSimone v. Phillips , 461 F.3d 181 (2d Cir. 2006); U.S. v. Rivas , 377 F.3d 195 (2d Cir. 2004); People v. Vilardi , 76 N.Y.2d 67 (1990); People v. Robinson , 133 A.D.2d 859 (2d Dept. 1987); People v. Barreras , 92 A.D.2d 871 (2d Dept. 1983). 88 See, e.g. , People v. Baxley , 84 N.Y.2d 208 (1994); People v. Lantigua , 228 A.D.2d 213 (1st Dept. 1996); People v Robinson , 133 A.D.2d 859 (2d Dept. 1987); DiSimone v. Phillips , 461 F.3d 181 (2d Cir. 2006). 89 See, e.g. , DiSimone v. Phillips , 461 F.3d 181 (2d Cir. 2006); U.S. v. Rivas , 377 F.3d 195 (2d Cir. 2004); People v. Poventud , 10 Misc.3d 337 (Sup. Ct., Bronx Co. 2005). 90 See, e.g. , DiSimone v. Phillips , 461 F.3d 181 (2d Cir. 2006); U.S. v. Rivas , 377 F.3d 195 (2d Cir. 2004). 91 See, e.g. , DiSimone v. Phillips , 461 F.3d 181 (2d Cir. 2006); Leka v. Portuondo , 257 F.3d 89 (2d Cir. 2001); Mendez v. Artuz , 303 F.3d 411 (2d Cir. 2002); Kyles v. Whitley , 514 U.S. 419 (1995); People v. Wright , 86 N.Y.2d 591 (1995); People v. Rutter , 202 A.D.2d 123 (1st Dept. 1994); People v. Smith , 127 A.D.2d 864 (2d 58 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

recorded in tangible form; 92 or if it is not admissible as evidence in its present form; 93 or if it is known to the defendant; 94 or if it relates to a person whom the prosecution does not intend to call at trial but who possesses exculpatory information.” 95

The directive in subpart (ii) that prosecutors must disclose potentially exculpatory information even when it is known to the defendant – a requirement that differs from constitutionally required disclosure rules – is included here for several important reasons. First, information known to the defendant may not be known to the defense lawyer, especially since many defendants have cognitive or other barriers to full and frank communication with their lawyers and may not recognize the exculpatory significance of evidence. Second, the prosecution may be mistaken in thinking that the defendant or defense counsel does know and recognize the potentially exculpatory nature of certain information. Third, although appellate courts are naturally reluctant to find constitutional error and to reverse a defendant’s conviction when the non-disclosed exculpatory evidence already was known to the defense, in the pre-trial context of this discovery rule there is no sound reason to have prosecutors engage in further analysis of this rationale to justify non-disclosure – there should simply be a categorical requirement to divulge anything potentially exculpatory. Fourth, if the defense lawyer does already know about the exculpatory information, that just means its disclosure may be superfluous. Under a system of full and open discovery, the prosecutor should provide the discovery to eliminate any risk that the defense may have overlooked it and to avoid any subsequent litigation.

In sum, including detailed guidance for prosecutors and courts regarding the types of favorable evidence that must be promptly disclosed – and common circumstances that do not exempt evidence from disclosure – advances several key underlying purposes of the discovery article. In particular, it ensures the defense’s ability to investigate exculpatory leads and to incorporate exculpatory information into its case. It reduces inefficient and costly litigation. And it helps to reduce the risk of wrongful convictions. Finally, like every other provision in this article, these disclosure requirements are subject to issuance of a protective order under section 245.70 when appropriate – but, presumably, it would be rare that “good cause” would exist for denying the defendant access to potentially exculpatory information or witnesses.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the discovery statute only vaguely states that the prosecution must make all of the disclosures that are required prior to trial pursuant to the New York State and United

Dept. 1987); People v. Jackson , 168 Misc.2d 182 (Sup. Ct., Bronx Co. 1995), aff’d , 264 A.D.2d 683 (1st Dept. 1999). 92 See, e.g. , U.S. v. Rodriguez , 496 F.3d 221 (2d Cir. 2007); U.S. v. Gil , 297 F.3d 93 (2d Cir. 2002); see also People v. Bond , 95 N.Y.2d 840 (2000); People v. Garcia , 46 A.D.3d 461 (1st Dept. 2007). 93 See, e.g. , U.S. v. Rodriguez , 496 F.3d 221 (2d Cir. 2007); Mendez v. Artuz , 303 F.3d 411 (2d Cir. 2002); U.S. v. Gil , 297 F.3d 93 (2d Cir. 2002). 94 Compare People v. Doshi , 93 N.Y.2d 499 (1999); U.S. v. LeRoy , 687 F.2d 610 (2d Cir. 1982); see also People v. McClain , 53 A.D.3d 556 (2d Dept. 2008). 95 See, e.g. , Kyles v. Whitley , 514 U.S. 419 (1995); U.S. v. Jackson , 345 F.3d 59 (2d Cir. 2003); People v. Barreras , 92 A.D.2d 871 (2d Dept. 1983).

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States Constitutions. See C.P.L. §240.20(h). It does not include any provision that explicitly addresses the prosecution’s duty to disclose potentially exculpatory evidence and information.

Under decisional law, two significant limitations inherent in the constitutional duty to disclose potentially exculpatory evidence routinely excuse prosecutors from making prompt and full disclosures. First, constitutional due process analysis requires that only “materially” exculpatory information – that is, information that the prosecutor believes could create a “reasonable probability” of an acquittal if it were disclosed – always must be disclosed to the defendant. See People v. Vilardi , 76 N.Y.2d 67, 77 (1990); Kyles v. Whitley , 514 U.S. 419, 434 (1995). Second, constitutional due process analysis establishes that even materially exculpatory information may be disclosed to the defense for the first time during the trial, provided only that the defendant has “a meaningful opportunity to use the allegedly exculpatory material.” See, e.g. , People v. Cortijo , 70 N.Y.2d 868, 870 (1987); People v. Monroe , 17 A.D.3d 863 (3rd Dept. 2005); cf. Leka v. Portuondo , 257 F.3d 89, 100-03 (2d Cir. 2001).

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SOURCES OF PROPOSED C.P.L. §245.20(1)( K): Parts of this provision are modified from Mass. R. Crim. P. 14(a)(1)(A)(viii); see also N.C. Gen. Stat. §15A- 284.52(b); W. Va. Code §62-1E-2(a).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( K): This provision requires the prosecution to inform the defendant about information pertinent to all of the pre-trial identification procedures, as well as other post-crime observations of the defendant by an eyewitness when they are known to the prosecutor. Numerous studies have shown that erroneous identifications are responsible for more wrongful convictions than any other factor. 96 By requiring full disclosure of information and documentation regarding the pre-trial identification procedures, this provision not only enables the defense lawyer to more efficiently litigate any legal issues about the reliability and propriety of the identification procedures, it will also help the defense to fully present the identification issues to the jury.

The Massachusetts discovery rule requires early disclosure to the defendant of “a summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.” This provision builds on that rule by specifying that the prosecutor must include certain critical information in the “summary.” Importantly, the provision does not direct the police about how they must conduct identification procedures. Instead, it simply requires that detailed information concerning the surrounding circumstances of the identification procedures – which may be significant both to litigating suppression issues before trial, and to presenting the evidence at trial – must be provided to the defendant early in the case.

Specifically, the “summary” must include basic facts such as the date, time, location, type, and result of each identification procedure. It must include the names of all persons present at each procedure if known to law enforcement, and the name and address of each eyewitness at each procedure (subject, like all other discoverable evidence, to the prosecutor’s motion for a protective order when appropriate). It must include the number and source of all photographs or lineup participants used in each procedure, and a copy of all photographs shown to an eyewitness and photographs taken of a lineup. All of this information is helpful for meaningfully investigating the case and litigating the identification issues. Furthermore, the “summary” must include the descriptions of suspects entered into any computerized mugshot identification system (such as the widely used “PIMS” system), and a saved collection of the photographic images generated by each description and viewed by each eyewitness on such a computerized mugshot system. Discovery of this

96 See, e.g. , Samuel R. Gross et al., “Exonerations in the United States, 1989 through 2003,” 95 J. Crim. L. & Criminology 523 (2005), available at: www.law.umich.edu/newsandinfo/exonerations-in-us.pdf ; The Justice Project, “Eyewitness Identification: A Policy Review” (2007), pp. 10-15; www.innocenceproject. org/Content.165 (“Identification Evidence Fact Sheet”); see generally People v. Hughes , 59 N.Y.2d 523, 542 (1983)(“The vagaries of eyewitness identification have long been a concern of this court which has on occasion gone further than the Federal Constitution requires in order to further minimize the risk of mistaken identification”); U.S. v. Wade , 388 U.S. 218, 228-29 (1967)(“the annals of criminal law are rife with instances of mistaken identification.... ‘The influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor – perhaps it is responsible for more such errors than all other factors combined’”)(citation omitted).

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information is important because, when a defendant has a prior criminal history, such computerized mugshot identification systems often contain multiple mugshot photos of the defendant – and if an eyewitness is repeatedly shown photographs of the same person, studies have shown that the likelihood of the eyewitness’s identifying that person is increased even if he or she is not in fact the true perpetrator. 97 The PIMS system is technologically capable of saving such information. Providing this information will enable the defense to fully litigate the legal issue, and enhance the fairness of the presentation of the identification evidence at trial.

Other categories of information that the “summary” must include are: the words used by an eyewitness in making any identification and any words describing his or her certainty or uncertainty in an identification at the time it was made; words used by an eyewitness that describe what role the person identified played in the charged offense ( e.g. , the perpetrator, the lookout, a bystander at the scene, etc.) and what if any prior relationship he or she had with the eyewitness ( e.g. , seen him around the neighborhood, he was a former customer of my store, etc.); and whether the eyewitness selected a different person as the perpetrator or indicated a belief that he or she could not identify the perpetrator. Once again, all of this information should be provided so that the defense can fully explore all of the issues surrounding the reliability of the identification in both the pre-trial hearings and at trial.

In particular, the last of these categories of information – whether the eyewitness selected a different person as the perpetrator or indicated a belief that he or she could not identify the perpetrator – addresses a common problem. Some prosecutors suggest that an eyewitness’s failure to identify the defendant in a lineup need not be disclosed to the defense at all, because supposedly it is not exculpatory evidence. They reach this belief because, in theory, such a failure of identification might signify only that the eyewitness did not have a good enough opportunity to see the perpetrator during the crime, or that the eyewitness did not remember the appearance of the perpetrator, as opposed to signifying that the defendant was not in fact the perpetrator. But in a system where the prosecution bears the burden of proof beyond a reasonable doubt, and where misidentifications have resulted in so many wrongful convictions, the law should expressly require disclosure of an eyewitness’s inability to make an identification. Surely it is a factor the jury should at least have a chance to consider, as a possible indication of the lack of enough convincing proof of guilt; and the defense should receive early discovery of such information in order to intelligently litigate and present all of the factual issues.

Next, the “summary” must include information regarding several factors that have been shown in the scientific literature on eyewitness identifications to bear significantly upon the accuracy of identifications, and which the parties and the court should therefore know about in advance if they are present in a case. These factors

97 See, e.g. , K.A. Deffenbacher, B.H. Bornstein, and S.D. Penrod, “Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious Transference, 30 Law and Human Behavior 287 (2006); Jennifer E. Dysart, R.C.L. Lindsay, Robin Hammond, and Paul Dupuis, “Mugshot Exposure Prior to Lineup Identification: Interference, Transference, and Commitment Effects,” 86 Journal of Applied Psychology 1280 (2001); John C. Brigham and Donna L. Cairns, “The Effect of Mugshot Inspections on Eyewitness Identification Accuracy,” 18 Journal of Applied Psychology 1394 (1988); Gabriel W. Gorenstein and Phoebe C. Ellsworth, “Effect of Choosing an Incorrect Photograph on a Later Identification by an Eyewitness,” 65 Journal of Applied Psychology 616 (1980).

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include: whether the identification procedure was simultaneous or sequential; whether before the procedure the eyewitness was instructed that the perpetrator might or might not be present; and whether the administrator of the procedure knew which person was the suspect, and whether before the procedure the eyewitness was instructed that the administrator did not know which person was the suspect. 98 This provision does not mandate that the police must employ identification procedures that conform to the specific techniques advocated in the scientific literature. Rather, it merely requires disclosure to the defense of information regarding whether or not those techniques were used.

Three unfair and unnecessary limitations in current New York discovery law concerning identification evidence also are eliminated. First, the provision requires the prosecution to disclose photographic (i.e. , “non-corporeal”) identification procedures. Although photographic identifications are in themselves inadmissible under New York evidence law, an unduly suggestive photographic identification procedure can “taint” a subsequent identification procedure (including an in-court identification). Thus, it may be relevant at a suppression hearing, or, when there was no other pre-trial identification, it may be the sole basis for seeking a suppression hearing concerning a prospective in-court identification. 99 Nevertheless, under a recent decision of the Court of Appeals that interpreted the specific statutory language of C.P.L. §710.30(1)(b), the prosecution need not disclose photographic identification procedures to the defense. 100 This provision rectifies this problem by

98 The scholarly literature on eyewitness identifications has found that statements made by the lineup administrator that lead the viewing witness to believe the culprit is present in the lineup increase the rate of misidentification. Conversely, instructions explicitly warning the viewing witness that the culprit might not be present in the lineup help the witness to recognize that he or she should not rely solely on relative judgments when assessing the lineup participants. Moreover, while such instructions reduce the rate of false identifications in lineups when the perpetrator is not present, they do not reduce the rate of correct identifications when the perpetrator is present. In addition, the scholarly literature on identification procedures has shown that subsequent assurances and confirming feedback from the lineup administrator tend to increase an identifying witness’s retrospective certainty about his or her identification. Thus, such comments may improperly enhance the strength of the prosecution’s identification evidence by distorting the witness’s recollection of events that occurred before the feedback was given. Furthermore, when the administrator of a lineup knows who is the suspect, studies have shown that he or she may unintentionally influence the results throughout the procedure by inadvertently cueing the witness toward the suspect in various ways (including by verbal and non-verbal cues). Such verbal and non-verbal cues also have been shown to influence or inflate the witness’s certainty in an identification. Finally, an explicit cautionary instruction warning the witness that the administrator does not know who is the suspect minimizes these problems. See, e.g. , Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” 22 Law and Human Behavior 603 (1998); Gary L. Wells, “Eyewitness Identification: Systemic Reforms,” 2006 Wis. L. Rev. 615, 632 (2006); Gary L. Wells and A.L. Bradfield, “‘Good, you identified the suspect’: Feedback to eyewitnesses distorts their reports of the witnessing experience,” 83 Journal of Applied Psychology 360-76 (1998); see also U.S. v. Wade , 388 U.S. 218, 229 (1967)(undue suggestion “can be created intentionally or unintentionally in many subtle ways”); People v. Riley , 70 N.Y.2d 523, 531 (1987). 99 See People v. Grajales , 8 N.Y.3d 861 (2007)(Ciparick, J., dissenting); People v. Gee , 99 N.Y.2d 158, 163 (2002); People v. Moss , 80 N.Y.2d 857 (1992); People v. Bernier , 73 N.Y.2d 1006 (1989). 100 See People v. Grajales , 8 N.Y.3d 861 (2007)(recognizing that the “better practice is to give defendant notice of all prior police-arranged identifications made by a witness from whom [the prosecution] intend[s] to elicit in-court identification testimony,” but finding that under the specific terms of C.P.L. §710.30[1][b] there is no obligation to provide notice of photographic identification procedures even though they may influence a subsequent identification procedure including an in-court identification); see also People 63 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

requiring early disclosure of all photographic identification procedures, to permit full and efficient litigation of all the pre-trial and trial issues.

Two other unfair and needless limitations that stem from the specific statutory language of C.P.L. §710.30(1)(b) – and which both conflict with federal constitutional analysis by the Court of Appeals for the Second Circuit – are eliminated as well. Under current decisional law interpreting the language of C.P.L. §710.30(1)(b), the prosecution need not promptly disclose either (1.) pre-trial identification procedures that were not arranged by a police officer or other public servant, 101 or (2.) pre-trial identification procedures that did not result in an identification of the defendant by a viewing witness even though the defendant was present. 102 An unduly suggestive identification procedure arranged by a civilian – and an unduly suggestive identification procedure that did not result in an explicit and positive statement of identification by a viewing witness – can, however, “taint” a subsequent identification procedure, including an in-court identification, by prompting, influencing or solidifying the eyewitness’s identification of the defendant. For instance, a tentative identification (as opposed to an explicit and positive one) can be influenced and made more confident by another person’s unduly suggestive remarks, and thus it can be unconstitutionally obtained.

The federal courts in New York have recognized these truisms while criticizing state court rulings. Specifically, the Second Circuit has ruled that “courts should scrutinize all suggestive identification procedures, not just those orchestrated by the police,” and it has observed that a pre-trial hearing may be necessary to evaluate the reliability of a privately arranged (as opposed to police arranged) identification procedure. 103 Likewise, the Second Circuit has ruled that, even as to a witness who did not make a pre-trial identification, the trial court must find that the witness’s in-court identification satisfies a threshold of reliability for it to be admissible. 104 This provision requires the prosecution, therefore, to disclose the information underlying these two potential constitutional claims, so that the defendant can efficiently and intelligently litigate them before trial when appropriate, so as to ensure the reliability and admissibility of the identification evidence.

v. Gee , 99 N.Y.2d 158, 163 (2002)(an unduly suggestive photographic identification procedure can taint a subsequent in-court identification); People v. Moss , 80 N.Y.2d 857 (1992); People v. Bernier , 73 N.Y.2d 1006 (1989); see generally People v. Chipp , 75 N.Y.2d 327, 335 (1990)(“It is firmly established in our jurisprudence that unduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused”); People v. Owens , 74 N.Y.2d 677, 678 (1989); People v. Adams , 53 N.Y.2d 241, 251-52 (1981); Manson v. Brathwaite , 432 U.S. 98 (1977). 101 See People v. Gissendanner , 48 N.Y.2d 543, 552 (1979); People v. Dixon , 85 N.Y.2d 218, 223 (1995). 102 See People v. Trammel , 84 N.Y.2d 584, 586-88 (1994). 103 See Dunnigan v. Keane , 137 F.3d 117, 127-28 (2d Cir. 1998)(criticizing the New York State court’s refusal to assess the reliability of a pre-trial identification procedure solely on the ground that it was not arranged by the police); see also People v. Blackman , 110 A.D.2d 596, 597-98 (1st Dept. 1985). 104 See Kennaugh v. Miller , 289 F.3d 36, 43-48 (2d Cir. 2002)(criticizing the New York State court’s refusal to hold a pre-trial Wade hearing or to make a finding of reliability regarding the in-court identification of a witness who had failed to identify the defendant in a pre-trial lineup and a photographic array).

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Finally, the provision also requires the prosecution to disclose any information within its possession that an eyewitness observed the defendant on another occasion after the charged crime but before trial, even if the police did not play a role in bringing about that observation and thus it does not constitute an identification “procedure” under C.P.L. §710.30(1)(b). This requirement is important not only because the defense should be informed about all of the known information relevant to the critical issue of identification, but also because this sort of identification evidence sometimes is suppressible as the tainted “fruit” of another constitutional violation, such as an unconstitutional seizure of the defendant or a violation of the defendant’s right to counsel. 105 Without having been informed about such a prior observation of the defendant, the defense lawyer may not even know that a pre-trial challenge to the admissibility of the evidence is available. Furthermore, when the defense learns about such evidence for the first time during the trial, the proceedings may have to be interrupted for a suppression hearing. Accordingly, the prosecution should be required to disclose this information as well.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution is required to give notice to the defense, within fifteen days of arraignment, of all corporeal identifications of the defendant that were arranged by a police officer or other public servant which it intends to offer at trial. See C.P.L. §710.30. The prosecution is not required to disclose pre-trial photographic identifications of the defendant. See C.P.L. §710.30; People v. Grajales , 8 N.Y.3d 861 (2007).

Decisional law has established that, under C.P.L. §710.30, there is no requirement that the prosecution disclose information about pre-trial identification procedures that were not arranged by a police officer or other public servant; that did not result in a positive identification of the defendant; or that the prosecution does not intend to offer at trial. See C.P.L. §710.30(1)(b); People v. Gissendanner , 48 N.Y.2d 543, 552 (1979); People v. Trammel , 84 N.Y.2d 584, 586-88 (1994). Furthermore, there is no requirement for the prosecution to disclose the names of persons present at identification procedures; the number and source of all photographs or lineup participants; the descriptions of suspects entered into a computer photographic identification system, or the photographic images they generated that were viewed by the eyewitness; or other details about how an identification procedure occurred, including what was said by and to the eyewitness at the procedure. The prosecution must disclose photographs that it intends to introduce at trial, such as a photograph of a lineup. See C.P.L. §240.20(1)(d).

SOURCES OF PROPOSED C.P.L. §245.20(1)( L): This provision is modified from Mass. R. Crim. P. 14(a)(1)(A)(ix); see also Mich. CR 6.201(B)(5).

105 See generally People v. Gethers , 86 N.Y.2d 159, 161-63 (1995); People v. Moss , 80 N.Y.2d 857, 858 (1992); People v. Fluitt , 80 N.Y.2d 949, 950 (1992); People v. Myrick , 66 N.Y.2d 903, 904 (1985).

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COMMENTARY ON PROPOSED C.P.L. §245.20(1)( L): This provision requires the prosecution to disclose information and documents concerning promises, rewards, and inducements made to its potential witnesses. Although this information also is discoverable pursuant to subdivision (1)(j) – which requires disclosure of all known potentially exculpatory or mitigating information – it is specified in this separate subdivision for two main reasons. First, the reciprocal discovery provision in subdivision three (3) of this section references this subdivision and requires the defendant to disclose promises, rewards, and inducements made to intended defense witnesses (but it would not make sense to require the defendant to disclose other sorts of information covered by subdivision [1][j]). Second, separately highlighting this especially important category of discoverable information – which often is highly significant to the jury’s evaluation of a witness’s possible bias, interest, or reasons to fabricate – is worthwhile, to ensure that both parties always provide timely and full disclosures.

The provision also requires disclosure of requests for consideration by a potential witness. A witness’s hope (or expectation) that his or her assistance may be rewarded by the prosecution or the court, even when there has been no formal promise to the witness of a benefit, may influence or color the witness’s testimony. It is a factor the jury may consider when weighing the reliability of the witness’s information and allegations.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose all materials that are required to be disclosed prior to trial pursuant to the New York State and United States Constitutions. See C.P.L. §240.20(h). This includes “materially” exculpatory information bearing on the credibility of a significant prosecution witness whose reliability may well be determinative of the verdict. See Giglio v. U.S. , 405 U.S. 150, 154 (1972); People v. Steadman , 82 N.Y.2d 1, 7 (1993). But pre-trial disclosure is not required, so long as the defendant still has a “meaningful opportunity” to use the impeachment information during the trial. See People v. Cortijo , 70 N.Y.2d 868, 870 (1987); People v. Monroe , 17 A.D.3d 863 (3rd Dept. 2005); cf. Leka v. Portuondo , 257 F.3d 89, 100-03 (2d Cir. 2001).

SOURCES OF PROPOSED C.P.L. §245.20(1)( M): This provision is modified from Fla. R. C.P. 3.220(b)(1)(G); see also Ariz. R. Crim. P. 15.1(b)(11).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( M): This provision requires prompt disclosure of whether a confidential informant or a jailhouse informant has provided any evidence or information. This enables the defendant to more fully understand the circumstances of the case and to plan an appropriate trial strategy. Otherwise the defendant may have no inkling of how he or she came to be arrested, and the defense may be unfairly surprised when the existence of an informant is divulged for the first time at trial. The provision also enables the defense to litigate before a pre-trial hearing or a trial (when appropriate) whether disclosure of the informant’s identity, and/or the contents of his or her reports, must be ordered pursuant to the defendant’s constitutional rights to due process, to fair

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notice, to compulsory process, and/or to present a defense. In certain circumstances, the Court of Appeals has required the prosecution to reveal an informant’s identity, to produce an informant before the court at a pre-trial hearing, or to allow the defendant to call an informant as a witness.106

The provision simply requires the prosecution to inform the defense about the existence of an informant who provided information; it does not require the prosecution to disclose the informant’s identity or the contents of his or her reports. Moreover, as with all the other provisions of this article, the prosecution may seek a protective order when appropriate to withhold this information for good cause, pursuant to subdivision four (4) of section 245.20 and section 245.70.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution need not disclose early in the case that it has received evidence or information from an informant. In limited circumstances, the prosecution may have to demonstrate to the court at the time of a suppression hearing that an informant in fact existed, and that he or she provided the police with probable cause to arrest or search the defendant. See People v. Edwards , 95 N.Y.2d 486 (2000); People v. Darden , 34 N.Y.2d 177 (1974); see also People v. Castillo , 80 N.Y.2d 578 (1992).

SOURCES OF PROPOSED C.P.L. §245.20(1)( N): This provision is modified from Fla. R. C.P. 3.220(b)(1)(I); Ariz. R. Crim. P. 15.1(b)(10); Mich. CR 6.201(B)(4); see also C.P.L. §690.50(4).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( N): This provision requires the prosecution to notify the defendant when evidence was recovered through the execution of a search warrant, and to disclose the documents relevant to the search. In some situations, the defendant may not be aware that a search warrant was executed or that evidence has been recovered in such a search. The defense may not, therefore, be aware of the basis to litigate before trial whether the warrant requirements of Article 690 were properly obeyed and whether the search was constitutional. The defense lawyer should have timely access to all of the documents underlying such a search (including the warrant, warrant application, supporting affidavits, and the police inventory of all property seized under the warrant 107 ), to ensure informed and efficient pre-trial litigation of the issues. Since current New York law does not require disclosure of these documents, defense lawyers often are

106 See U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, §6; see, e.g. , People v. Andre W. , 44 N.Y.2d 179 (1978); People v. Goggins , 34 N.Y.2d 163 (1974); People v. Peltak , 45 N.Y.2d 905 (1978); People v. Pena , 37 N.Y.2d 642 (1975); People v. Malinsky , 15 N.Y.2d 86 (1965); People v. Edwards , 95 N.Y.2d 486 (2000); People v. Darden , 34 N.Y.2d 177 (1974); see also Roviaro v. U.S. , 353 U.S. 53 (1957); People v. Frost , 100 N.Y.2d 129 (2003); People v. Castillo , 80 N.Y.2d 578 (1992); People v. Liberatore , 79 N.Y.2d 208 (1992); People v. Stanard , 42 N.Y.2d 74 (1977); People v. Sanchez , 84 N.Y.2d 440 (1994). 107 See C.P.L. 690.50(4).

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unable intelligently to decide whether there are legal issues that should be litigated, and to timely and comprehensively raise them.

This provision differs from subdivision (1)(i) – which requires the prosecutor to disclose tangible property recovered from or belonging to the defendant or a co- defendant, including objects recovered pursuant to a search warrant, and to designate which property allegedly possessed by the defendant was recovered during a search by a public servant – insofar as it pertains to whether a search warrant was executed and it requires disclosure of the written documentation and oral submissions relating to the search. The prosecutor has the right to withhold the information when appropriate, and to move for a protective order pursuant to subdivision four (4) of section 245.20 and section 245.70.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution is not statutorily required to disclose search warrant documents. Compare C.P.L. Article 690 with C.P.L. §700.70 (requiring the prosecution to provide timely notice and copies of an eavesdropping warrant and the accompanying application documents); People v. Liberatore , 79 N.Y.2d 208 (1992); cf. People v. Castillo , 80 N.Y.2d 578 (1992).

SOURCES OF PROPOSED C.P.L. §245.20(1)( O): This provision is modified from Fla. R. C.P. 3.220(b)(1)(H); Ariz. R. Crim. P. 15.1(b)(9); Colo. R. Crim. P. 16 Part I (a)(1)(VI).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( O): This provision requires the prosecution to disclose whether electronic surveillance has occurred (including but not limited to wiretapping or video surveillance) in connection with the residence, business, telephone, computer, or other electronic or digital device of the defendant, or of conversations of the defendant or co-defendants. It also requires the prosecution to disclose all recordings, transcripts, and documents relating to such electronic surveillance (including the warrant, warrant application, and supporting affidavits).

The defendant may not be aware that certain kinds of electronic surveillance have occurred in connection with the case, or what evidence was recovered thereby. Current New York law does not require disclosure of information regarding electronic surveillance of defendants not named in a warrant or of co-defendants, and it does not require disclosure of the recordings and transcripts made in connection with the surveillance. Such information about surveillance – involving not only the defendant, but also co-defendants – is highly useful for the defendant to intelligently investigate the case; to evaluate a guilty plea offer; to plan an appropriate trial strategy; and to efficiently litigate all of the pre-trial suppression issues. As with all other provisions of this article, the prosecutor has the right to withhold the

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information and to move for a protective order when appropriate, pursuant to subdivision four (4) of section 245.20 and section 245.70.108

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must provide written notice of the fact and date of the issuance of an eavesdropping or video surveillance warrant; the period of authorized eavesdropping or video surveillance; and the fact that during such period communications were or were not intercepted or observations were or were not made. This written notice need only be provided to the person named in the warrant, and to such other parties to the intercepted communications or subjects of the video surveillance as the court determines in the interests of justice. The court may also, in the interests of justice, make portions of intercepted communications or video surveillance available to individuals named in the warrant or whose communications or actions were recorded. See C.P.L. §700.50(3); see also C.P.L. §700.50(4); People v. Liberatore , 79 N.Y.2d 208 (1992).

Eavesdropping and video surveillance warrants, warrant applications, and documentation may be disclosed to the defendant upon a showing of good cause. See C.P.L. §700.55(1); see also People v. Liberatore , 79 N.Y.2d 208 (1992); cf. C.P.L. §700.65. Before introducing into evidence or otherwise disclosing at trial any intercepted communications (and information derived from them), the prosecution must have disclosed a copy of the eavesdropping warrant and the warrant application to the defendant fifteen days after arraignment (or later for good cause shown, if the defendant is not prejudiced by the additional delay). See C.P.L. §700.70; People v. Liberatore , 79 N.Y.2d 208 (1992); People v. Schulz , 67 N.Y.2d 144 (1986); People v. Basilicato , 64 N.Y.2d 103 (1984).

(p) The approximate date, time and place of the offense(s) charged and of the defendant’s seizure and arrest.

SOURCES OF PROPOSED C.P.L. §245.20(1)( P): This provision is modified from C.P.L. §240.20(1)(i).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( P): This provision maintains the current requirements of C.P.L. §240.20(1)(i) that the prosecution must disclose basic information identifying the charged crime and the time and place of the defendant’s arrest. In addition, it requires the prosecution to notify the defense lawyer about the location and time of the defendant’s initial seizure by the police.

Crucially, defense counsel should be informed not only of the time and location of the defendant’s arrest , but also of the time and location of his or her initial seizure , because commonly the seizure occurs significantly earlier than the Police Department’s officially designated time of the full-blown “arrest.” To intelligently make the factual allegations necessary to obtain pre-trial suppression hearings 109 – and, more generally, to fully understand the circumstances of the case –

108 Notably, if this proposed Article 245 is enacted, certain conforming amendments to provisions in Article 700 might be appropriate. 109 See C.P.L. §710.60(1); People v. Mendoza , 82 N.Y.2d 415 (1993); People v. Burton , 6 N.Y.3d 584 (2006); see also People v. Bryant , 8 N.Y.3d 530, 534 (2007)(“defendant’s lack of access to information precluded more specific factual allegations”).

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the defense lawyer must know whether the initial seizure occurred close in time and place to the charged criminal incident. Often he or she is unable to glean that information from the defendant, because the defendant may not know times and locations, and an innocent person may know nothing about the charged crime. This provision will significantly improve the efficiency of pre-trial suppression motions and litigation.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose “the approximate date, time and place of the offense charged and of defendant’s arrest” – but not the date, time and place of the defendant’s initial seizure by the police, if it differs from the formally designated “arrest.” See C.P.L. §240.20(1)(i).

SOURCES OF PROPOSED C.P.L. §245.20(1)( Q): This provision is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( Q): This provision requires the prosecution to disclose whether the police observed the charged crime from a clandestine police observation post, and, if so, whether they were using visual magnification or enhancement equipment (such as binoculars). It also requires the prosecution to provide sufficient information for the defense lawyer to undertake a reasonable investigation of the location of the observation post – except that such information must be disclosed only to the defense lawyer and defense personnel, on condition that it not be shared with any other people including the defendant, if the police observation post is still being used.

Particularly in street-level narcotics cases, the police sometimes occupy a hidden location in a building or another inaccessible spot to stake out a place where they expect that crimes may occur. Often the Police Department repeatedly uses the same “observation post” in different cases. Normally the prosecution reveals the location of the observation post to the defendant and the jury when police witnesses testify at trial. But the accused has an important need for his or her lawyer to investigate the crime scene and the observation post prior to trial, in order to verify the accuracy of the police witnesses’ prospective testimony and to subject it to informed cross-examination. For such an investigation to be meaningful, the lawyer also must know whether the police used binoculars or other visual magnification or enhancement equipment. In short, it is basic to competent representation that defense counsel have visited the crime scene, so as to properly cross-examine and to ensure

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that the jury adequately assesses any limitations in the prosecution witness’s contentions.110

A 1995 case from Queens County illustrates why this is so critical. At trial a police officer testified that he watched the defendant sell drugs while standing in a police observation post “100 feet or maybe less” away from the supposed drug- transaction. The officer even told the jury that he could see the color of the caps on the drug vials through his binoculars from that location. The defense lawyer had sought discovery of the location of the observation post prior to trial, but the prosecution and the court had refused to grant such pre-trial disclosure which was not required under Article 240. Accordingly, the defense learned the exact location of the police observation post only during the trial, and the jury then convicted the defendant.

After the trial, the defense lawyer hired a cartagraphic specialist to analyze the area – and the expert’s report revealed that, in reality, the officer had been over 160 feet away standing behind a ten-foot-high stone wall along a hillside abutting the Van Wyck Expressway. When the prosecutor confronted the officer with this information, the officer stated for the first time that to see over the ten-foot-high wall he had been perched atop a stack of tires at the location. The defense lawyer used a zoom lens that matched the magnification of the officer’s binoculars and made a videotape of the view from the observation post – and it was impossible to see not only the colors of standard Crayola crayons counsel held while standing where the defendant supposedly sold the drugs, but even the crayons themselves. Ultimately the defendant’s conviction was reversed due to the breakdown in adversarial testing that resulted from the lack of a competent pre-trial investigation by the defense lawyer.111

While it is crucial that the defense lawyer be provided with sufficient information to undertake an intelligent pre-trial investigation of an observation post, a discovery rule that requires disclosure of such information must not compromise police investigatory practices or jeopardize officers’ safety. Therefore, this provision requires disclosure of the location of an observation post, but when the observation post is still used, only the defense lawyer and defense personnel (not the defendant or any other person) may have access to the information. Furthermore, it simply requires the prosecution to disclose information “sufficient to undertake a reasonable investigation of the location of the police observation post,” not necessarily to arrange for the defense lawyer to actually enter the location – which sometimes is impossible in any event, such as when the police have obtained temporary permission to use private premises as an observation post. Finally, the court has the power to otherwise restrict or condition disclosure of the information whenever appropriate, pursuant to a protective order issued for good cause under section 245.70. Alternatively, the court may lift the restriction on providing information to the defendant or to another person, for good cause shown.

110 See, e.g. , Thomas v. Kuhlman , 255 F.Supp.2d 99 (E.D.N.Y. 2003); People v. Donovan , 184 A.D.2d 654 (2d Dept. 1992); People v. Armstrong , N.Y.L.J. 11/16/95, p. 30, col. 5 (Sup. Ct., Queens Co. 1995), aff’d , 249 A.D.2d 317 (2d Dept. 1998); see generally People v. Droz , 39 N.Y.2d 457, 462 (1976). 111 See People v. Jesse Armstrong , N.Y.L.J. 11/16/95, p. 30, col. 5 (Sup. Ct., Queens Co. 1995), aff’d , 249 A.D.2d 317 (2d Dept. 1998).

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PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no statutory provision that requires the prosecution to disclose the location of a police observation prior to a trial.

(r) All information or material required to be gathered or memorialized pursuant to subdivisions one (1) and two (2) of section 245.45.

SOURCES OF PROPOSED C.P.L. §245.20(1)( R): This provision is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( R): This provision requires prompt disclosure of the materials at issue in two of the subdivisions of section 245.45 ( i.e. , records regarding apparently material witnesses and apparently material physical evidence, under narrowly limited circumstances; and videotapes of interviews of suspects at a police station or other facility of detention, in limited circumstances). The Commentaries under those two subdivisions elucidate the significance of this provision.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution is not required to disclose the materials at issue in subdivisions one (1) and two (2) of section 245.45, except in one extremely rare situation described in the Commentary to section 245.45(1).

SOURCES OF PROPOSED C.P.L. §245.20(1)( S): This provision is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( S): This provision requires the prosecutor to disclose all of the documentation concerning electronic and digital evidence that he or she has chosen to obtain which relates to the subject matter of the case or is otherwise relevant. This includes information, records and data relating to cellular telephones, text messages, email messages, instant messages, internet social networks, web pages, personal digital assistant and similar devices, computer hard drives, cellular telephone towers, and electronic toll or mass transit system fee collection devices (i.e. , E-ZPass and Metrocard). 72 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

Information relating to electronic and digital devices increasingly is being used as evidence in criminal prosecutions. Yet such evidence is not specifically or adequately addressed under Article 240. This provision sets two commonsense limitations on discovery of this expansive and ever-growing type of information. First, only records and data that the prosecutor has chosen to gather fall within the provision. Second, only records and data that relate to the subject matter of the case or are otherwise relevant fall within the provision. Importantly, the provision does not require the prosecutor to gather or to create records for disclosure to the defense. Instead, it simply requires the prosecutor to share relevant information that is within his or her possession, which could enable the defense to investigate and assess the case; to promptly and intelligently determine whether the proper disposition is a guilty plea; and to plan an appropriate trial strategy.

The particular types of electronic and digital information included in the provision are self-explanatory. As technologies change, they may have to be supplemented. But the basic communication and information storage technologies listed here are expected to be widely used for the foreseeable future. Documents discoverable under the provision fall within the following main categories: account information for cell phone service, email service, internet service, internet social network service, and personal digital assistant and similar device service; records and data for cell phone calls, text messages, email messages, instant messages, and information obtained from web sites, internet social networks, and computer hard drives; recordings and records of cell phone messages, text messages, cell phone photographs, instant messages, internet social network postings, and web postings; cell phone tower data , which is used to approximate the location of a caller during a cell phone call; and data from electronic toll or mass transit system fee collection devices , such as the “E-ZPass” device that automatically pays highway tolls throughout the state and the “Metrocard” device that is used to pay subway and bus fares for New York City’s mass transit system.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no requirement for the prosecutor to disclose all of the relevant documentation concerning electronic and digital evidence that he or she has obtained. Instead, the prosecution need only disclose portions of such records and documents that: relate to discoverable scientific tests or experiments [ see C.P.L. §240.20(1)(c)]; are photographs that the prosecutor intends to introduce at trial or that were made by a person whom the prosecution intends to call as a witness [ see C.P.L. §240.20(1)(d)]; are property obtained from the defendant or co-defendants [ see C.P.L. §240.20(1)(f)]; are electronic recordings that the prosecutor intends to introduce at a trial [ see C.P.L. §240.20(1)(g)]; contain written or recorded statements by the defendant or co-defendants [ see C.P.L. §240.20(1)(a)]; or contain written or recorded statements by a testifying prosecution witness concerning the subject matter of his or her testimony (but those statements need not be disclosed until the time of a pre-trial hearing or a trial) [ see C.P.L. §§240.44(1), 240.45(1)]. See People v. Colavito , 87 N.Y.2d 423, 427 (1996); C.P.L. §§240.20, 240.40, 240.44, 240.45.

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obtain the complete criminal record of all defendants and all witnesses designated as potential prosecution witnesses, the prosecutor also shall either (i) provide counsel for the defendant with access to such a database, or (ii) provide the defendant with that information.

SOURCES OF PROPOSED C.P.L. §245.20(1)( T): This provision is modified from “ABA Criminal Justice Section Standards – Discovery,” Standard 11- 2.1(a)(vi); Mass. R. Crim. P. 14(a)(1)(D)&(A)(iv); see also Ill. S. Ct. R. 412 (a)(vi); Mo. R. Crim. P. 25.03(A)(7).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( T): This provision ensures that the defense lawyer has access to the complete criminal record of all defendants and of all witnesses designated as potential prosecution witnesses pursuant to subdivision (1)(c). It also requires the prosecutor to disclose any documentation that he or she has chosen to obtain regarding accusatory instruments and dispositions from the prior cases of all defendants and of all potential prosecution witnesses. This information is universally recognized as an important tool for informing the jury on cross-examination about the character and general credibility of a witness, and both prosecutors and defense lawyers normally want to know about it prior to any trial. In particular, prior or pending criminal complaints or other types of accusatory instruments are often highly useful for cross-examination, because they contain factual information about the witness’s criminal cases. Importantly, the provision does not compel the prosecutor to assemble information for the defendant (let alone to fingerprint the intended witnesses or run database searches to obtain their complete criminal histories).

The provision takes a different approach to providing this information than either the ABA’s recommended discovery provision from which some of its language is modified or the Massachusetts rule. Specifically, the ABA’s recommended discovery rules require the prosecution to disclose early in the case “any record of prior criminal convictions, pending charges, or probationary status of the defendant or of any co-defendant, and insofar as known to the prosecution, any record of convictions, pending charges, or probationary status that may be used [for] impeachment of any witnesses.” A key shortcoming of this rule is that it does not ensure that the defendant will have a mechanism to obtain the complete criminal records of the prosecution’s intended witnesses.

In contrast, the Massachusetts rule requires the prosecution to notify the Probation Department of the names and addresses of the potential civilian witnesses whom it may call at trial, and then the Probation Department is given five days from receipt of that information to gather documentation regarding “the record of prior complaints, indictments and dispositions of all defendants and of all [intended prosecution] witnesses” and to provide it to both parties. But it is probably not feasible to place this duty on the Probation Department in New York State. 112

112 Another approach to disclosing such information was suggested in a discovery bill proposed by The Justice Project. See The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), p. 22 [Model Discovery Bill §IV (B)(6)(d)] (recommending a provision that requires the prosecution to disclose: “Any record of prior criminal convictions, pending charges, or probationary status of the defendant or of any codefendant, and insofar as known to the prosecution, any record of convictions, pending charges, or 74 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

Because the records of prior and pending cases of defendants and prosecution witnesses are of critical importance, the defense lawyer should have access to a way to obtain them early in the case. Many large defender organizations have arrangements with the prosecution or the Office of Court Administration under which their attorneys have access to databases that contain information about criminal histories. When the defense lawyer knows the name and date of birth of a prospective witness (and, crucially, the witness’s past aliases ), he or she can assemble this information. But because many defense practitioners lack access to this vital tool for discovering witnesses’ criminal histories, this provision gives prosecutors a choice when their adversary is in that position: they can either arrange for the lawyer to receive access to the necessary database to perform the searches, or else they can elect to provide the lawyer with that information.

The provision also requires the prosecutor to disclose any documentation that he or she has chosen to obtain regarding prior and pending accusatory instruments against the defendants and intended prosecution witnesses, as well as regarding their convictions, dispositions, and probationary status. Both parties should have open and equal access to such documentation, which may contain useful potential impeachment materials that both prosecutors and defense lawyers generally want to possess at the time of trial.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the parties need not disclose known conviction records of their witnesses until the time of a pre-trial hearing or a trial. See C.P.L. §§240.44(2), 240.45(1)(b), 240.45(2)(b). They also need not disclose known pending criminal actions against their witnesses until the time of a pre-trial hearing or a trial. See C.P.L. §§240.44(3), 240.45(1)(c), (2)(c). Furthermore, there is no requirement for the prosecutor to assist a defense lawyer who lacks access to a database by which to obtain the complete criminal records of all defendants and all the intended prosecution witnesses to obtain that information early in the case, either by providing access to a database or by disclosing the records. The discovery statute even expressly states that the prosecution’s obligation to disclose known prior criminal convictions and pending criminal cases of prosecution witnesses “shall not be construed to require the prosecutor to … cause the division of criminal justice services or other law enforcement agency or court to issue a report concerning a witness.” See C.P.L. §240.45(1).

(u) In any prosecution alleging a violation of the vehicle and traffic law, where the defendant is charged by indictment, superior court information, prosecutor’s probationary status that may be used [for] impeachment of any witness to be called by either party at trial. While the prosecution is under no duty to conduct background checks of all witnesses, if the prosecution runs a general criminal records search for defense witnesses, the prosecution must make the same search with respect to prosecution witnesses and must disclose the results to the defense”). This provision has a few shortcomings, including: (1.) that it does not ensure the defense will always have a mechanism to obtain the complete criminal record of all the potential prosecution witnesses, especially because, when the defense has no prospective witnesses, discovery of the information would be entirely contingent on the prosecutor’s choice whether to research the background of a potential prosecution witness; (2.) that the prosecutor would not necessarily know the identity of any potential defense witnesses at the time he or she must provide initial discovery; (3.) that it does not require disclosure of prior accusatory instruments that the prosecution has obtained; and (4.) that it does not require disclosure of information about non-criminal dispositions that the prosecution has obtained.

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information, information, or simplified information charging a misdemeanor, the most recent record of inspection, calibration and repair of machines and instruments utilized to perform any scientific tests and experiments and the certification certificate, if any, held by the operator of the machine or instrument, and all other disclosures required under this article.

SOURCES OF PROPOSED C.P.L. §245.20(1)( U): This provision is modified from C.P.L. §240.20(1)(k).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( U): This provision maintains the current requirement of C.P.L. §240.20(1)(k), but it makes minor stylistic modifications. In particular, the specification in C.P.L. §240.20(1)(k) that the prosecution must disclose written reports and documents concerning physical examinations and scientific tests and experiments is redundant to the requirements of subdivision (1)(h) of this section, so it is omitted. Furthermore, the requirement in C.P.L. §240.20(1)(k) that only reports and documents that were either made at the direction of a law enforcement actor, or that were made by a prospective prosecution witness, or that the prosecution intends to offer as evidence are discoverable is abandoned, because such limitations are at odds with the underlying goals of full and open discovery.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the subsection at issue states that the prosecution must disclose, “in any prosecution commenced in a manner set forth in this subdivision alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to this article, any other provision of law, or the constitution of this state or of the United States, any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial.” See C.P.L. §240.20(1)(k).

SOURCES OF PROPOSED C.P.L. §245.20(1)( V): This provision is modified from C.P.L. §240.20(1)(j).

COMMENTARY ON PROPOSED C.P.L. §245.20(1)( V): This provision maintains the current requirement of C.P.L. §240.20(1)(j), but it makes minor stylistic modifications. In particular, subdivision six (6) of P.L. §150.00 was amended to subdivision eight (8) of that section, but this change is not reflected in current C.P.L. §240.20(1)(j).

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the subsection at issue states that the prosecution must disclose, “[i]n any prosecution

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under penal law section 156.05 or 156.10, the time, place and manner of notice given pursuant to subdivision six of section 156.00 of such law.” See C.P.L. §240.20(1)(j).

SOURCES OF PROPOSED C.P.L. §245.20(2): This provision is modified from Ariz. R. Crim. P. 15.1(b)(7); see also C.P.L. §240.43.

COMMENTARY ON PROPOSED C.P.L. §245.20(2): This provision requires the prosecution to specify for the defense any misconduct or prior criminal acts of the defendant that it intends to use at a trial for impeaching the defendant or as substantive proof of a material issue in the case. This information is classified as “supplemental” discovery, and it must be disclosed within fifteen days of trial pursuant to subdivision two (2) of section 240.10 (as opposed within fifteen days of arraignment, which is the timeframe for providing most other discovery). Later disclosure of this information is necessary as a practical matter, because often the prosecutor will not know until he or she has actually prepared for trial which specific misconduct or prior criminal acts of the defendant will be offered.

Current New York law includes no statutory requirement for the prosecution to disclose before trial a defendant’s misconduct or prior criminal acts that the prosecutor intends to introduce as substantive evidence to prove a material issue (such as motive, intent, knowledge, identity, etc. – so-called Molineux evidence). Indeed, the Court of Appeals has remarked on this lack of statutorily mandated discovery, and has advised prosecutors to disclose such information at least at the beginning of a trial, not only because it is more fair but also because it permits more efficient litigation of the legal issues and minimizes disruptions during a trial.113 This provision rectifies the omission by requiring the prosecution to give fifteen days of advance notice of such evidence, so as to eliminate unfair surprise and to afford the defense lawyer time to investigate, research, and prepare.

Under current New York law, misconduct or prior criminal acts of the defendant that the prosecution intends to introduce for impeaching a testifying defendant (so-called Sandoval information) need not be disclosed until the time of the trial. The current discovery statute also requires the defendant to “request” this information. 114 But just as with such information offered as substantive evidence, the defendant should be given advance notice of this important material to prevent unfair surprise and to allow the defense lawyer time to investigate, research, and prepare. Moreover, it is needlessly inefficient to require a formal request before the prosecution must turn over information all defendants will want to know.

113 See People v. Ventimiglia , 52 N.Y.2d 350 (1981); People v. Small , __ N.Y.3d __, 2009 WL 330237; see also People v. Molineux , 168 N.Y. 264 (1901); compare Ariz. R. Crim. P. 15.1(b)(7); “ABA Criminal Justice Section Standards – Discovery,” Standard 11-2.1(a)(vi). 114 See C.P.L. §240.43; People v. Sandoval , 34 N.Y.2d 371 (1974).

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Finally, the provision uses different language than C.P.L. §240.43 to describe the types of information that must be disclosed. The current statute refers to disclosure of “prior criminal, vicious or immoral conduct” that the prosecutor intends to use. But the terms “vicious” and “immoral” are vague, and explicitly injecting moral standards is unnecessary and less clear than simply referring to “misconduct or criminal acts.” Additionally, the current statute refers to disclosure of prior “uncharged” conduct. But this term is potentially confusing, insofar as it might be interpreted by those unfamiliar with legal jargon and New York’s criminal law to refer to misconduct of the defendant that has never been “charged” or prosecuted in the past. Instead, the intention of the provision is to require disclosure of the defendant’s misconduct that is not formally charged in any of the counts of the pending accusatory instrument at trial. Describing the information that must be disclosed as “all misconduct or criminal acts of the defendant not charged in the accusatory instrument” is more clear, since it plainly refers to both misconduct that has never been “charged” and misconduct that was “charged” in a prior case.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must upon a request by the defendant notify the defendant of “all specific instances of a defendant’s prior uncharged criminal, vicious or immoral conduct” that the prosecutor intends to use to impeach the defendant’s credibility should he or she testify at trial. Ordinarily, it must do so just prior to jury selection, but the court may in its discretion order disclosure three days before jury selection. See C.P.L. §240.43; People v. Sandoval , 34 N.Y.2d 371 (1974). Under decisional law, the prosecution also should disclose at the start of trial any misconduct or prior criminal acts of the defendant that it intends to offer as substantive evidence to prove a material issue in the case (such as motive, intent, knowledge, identity, etc.). See People v. Ventimiglia , 52 N.Y.2d 350 (1981); People v. Small , __ N.Y.3d __, 2009 WL 330237; see also People v. Molineux , 168 N.Y. 264 (1901).

SOURCES OF PROPOSED C.P.L. §245.20(3): The first subpart of this provision is modified from Mass. R. Crim. P. 14(a)(1)(B); see also Fla. R. C.P.

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3.220(d)(1)(B)(i); C.P.L. §240.30(1). The second subpart of this provision is modified from “ABA Criminal Justice Section Standards – Discovery,” Standard 11- 2.2(a)(i). The third subpart of this provision is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.20(3): This provision requires automatic reciprocal discovery from the defendant of the listed types of evidence and information, and it eliminates the unnecessary requirements of current law that a written “demand” for discovery must be filed and that the parties must exchange written discovery motions. The timing of the defendant’s disclosures to the prosecution is specified by subdivision three (3) of section 245.10, and they must be made thirty days after the prosecution has provided its initial discovery materials.

Like the current reciprocal discovery rule in C.P.L. §240.30(1), this provision contains the limitation that only items, information, and witnesses that the defendant intends to offer need be disclosed. But the categories of evidence and information that must be provided by the defendant are substantially more broad than under current New York law, and the timing for the disclosures also is earlier in the case. If the defense finds additional discoverable materials or witnesses after the thirty-day timeframe for disclosures – or if the defense first decides that it intends to offer particular evidence or to call a particular witness only after that timeframe for reciprocal discovery – such evidence then must be “expeditiously” disclosed to the prosecution, pursuant to the continuing duty to disclose set forth in section 245.60. These requirements are modeled on Massachusetts’ reciprocal discovery provision.

Like current New York law and the Massachusetts rule from which its language is modified, the provision requires the defendant to disclose only items and witnesses that he or she intends to offer at trial. It also requires the defendant to provide reciprocal discovery only after receiving the prosecution’s initial discovery materials.115 Because a defendant’s production of evidence or witnesses often is tantamount to making an “admission” regarding the defendant’s knowledge of and connection to the evidence or the witnesses, the defendant should be required to turn over to the prosecutor only that information which he or she intends to use at trial in presenting the defense. The defendant should not be compelled by the state’s discovery rules in effect to assist the state in gathering otherwise unknown incriminating evidence, or in effect to make self-incriminating implied admissions by handing over (and thus demonstrating a link to) inculpatory information.116

Likewise, because the defense lawyer is required to comply with the reciprocal discovery provisions on the defendant’s behalf, he or she should not be placed by the discovery statute in the untenable professional position of effectively

115 See C.P.L. §240.30(1)(reciprocal discovery from the defendant includes only evidence that he or she “intends to introduce”); C.P.L. §240.45(2)(the defendant need not disclose witnesses’ written/recorded statements until after having heard the prosecution’s direct case at trial); see also Mass. R. Crim. P. 14(a)(1)(B); Fla. R. C.P. 3.220(d)(1)(B)(i). 116 See generally People v. Havrish , 8 N.Y.3d 389, 395 (2007)(“The surrender of evidence can be testimonial if, by doing so, defendant tacitly concedes that the item demanded exists or is in defendant’s possession or control when these facts are unknown to the authorities and would not have been discovered through independent means”); People v. Copicotto , 50 N.Y.2d 222 (1980); Doe v. U.S. , 487 U.S. 201 (1988); Fisher v. U.S. , 425 U.S. 391 (1976).

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breaching the duties of zealous advocacy and of loyalty to the defendant by having to reveal unfavorable evidence and witnesses not already known to the prosecution. Such a discovery rule would have a powerful chilling effect on investigations by the defense lawyer, insofar as counsel and defense investigators always would be wary of unearthing incriminating evidence that would later have to be turned over to the prosecution. That disincentive to fully investigating the case and interviewing possible witnesses would severely undermine the reliability of the adversarial testing process, upon which society relies to produce just and accurate verdicts. The constitutional limitations of the Due Process Clause, the defendant’s Fifth Amendment privilege against self-incrimination, and the defendant’s Sixth Amendment right to the assistance of loyal and competent counsel also restrict reciprocal discovery from defendants. 117

More generally, it is critical to recognize that, in key structural ways, a defendant is at a substantial disadvantage as compared with the prosecution. For this reason as well, reciprocal discovery should be more limited and should occur only after a reasonable opportunity to review the prosecution’s discovery materials. Specifically, the state has a full chance to investigate, to interview witnesses, to gather evidence, and to plan its case before even charging the defendant with an offense. It also possesses the investigative resources of staff, laboratories, search warrant and electronic surveillance powers, undercover investigation capabilities, and grand jury investigative authority to fully and promptly develop its case before the defendant’s arraignment and the fifteen-day period for providing its initial discovery. Furthermore, it can obtain non-testimonial evidence ( e.g. , blood and hair samples, lineups, medical examinations), and often testimonial evidence as well ( i.e. , statements made during police interrogations), from the defendant early in the investigation.

In contrast, until having reviewed the prosecution’s discovery materials, the defendant may not even understand the nature and basis of the case sufficiently to provide his or her lawyer with information and leads to investigate. Likewise, until the defense is able to identify and locate its prospective evidence and witnesses, and to formulate an informed strategy of defense for the trial, it is not even capable of determining all of the particular materials that would have to be reciprocally disclosed to the prosecution.118

117 See U.S. Const., Amends. V, VI, XIV; Wardius v. Oregon , 412 U.S. 470 (1973); see also Michigan v. Lucas , 500 U.S. 145 (1991); Taylor v. Illinois , 484 U.S. 400 (1988); Williams v. Florida , 399 U.S. 78 (1970); U.S. v. Nobles , 422 U.S. 225 (1975); People v. Copicotto , 50 N.Y.2d 222 (1980). 118 The U.S. Supreme Court has insightfully remarked on these key structural differences between the prosecution and the defendant, which inform proper reciprocal discovery obligations. See Wardius v. Oregon , 412 U.S. 470, n.9 (1973)(“Indeed, the State’s inherent information-gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the defendant’s favor. As one commentator has noted: ‘Besides greater financial and staff resources with which to investigate and scientifically analyze evidence, the prosecutor has a number of tactical advantages. First, he begins his investigation shortly after the crime has been committed when physical evidence is more likely to be found and when witnesses are more apt to remember events. Only after the prosecutor has gathered sufficient evidence is the defendant informed of the charges against him; by the time the defendant or his attorney begins any investigation into the facts of the case, the trail is not only cold, but a diligent prosecutor will have removed much of the evidence from the field. In addition to the advantage of timing, the prosecutor may compel people, including the defendant, to cooperate. The defendant may be questioned within limits, and if arrested his person may be searched. He may also be 80 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

For these and other reasons, it is proper to require the defense to disclose only evidence and witnesses that it intends to offer (instead of forcing the defendant to reveal even incriminating information unknown to law enforcement); and to allow the defense reasonable time to review the initial discovery materials, to perform additional investigations based on them, and to identify the proper strategy of defense, before having to provide reciprocal discovery. This approach is widely followed, including in states such as Massachusetts, Florida and California. 119

Under this provision, the defendant is required to turn over to the prosecution: expert opinion evidence that the defendant intends to offer, under subdivision (1)(f); exhibits, electronic recordings, photographs, drawings, and tangible objects that the defendant intends to offer, under subdivision (1)(g); reports, documents, results and information concerning physical/mental examinations and scientific tests and experiments and comparisons that the defendant intends to offer, under subdivision (1)(h); and any promises, rewards and inducements made to persons who may be called as witnesses that the defendant intends to offer, under subdivision (1)(l). In addition, the defendant is required to disclose to the prosecutor the names, known aliases, addresses, birth dates, and all statements, written or recorded or summarized in any writing or recording, of those persons (other than the defendant) whom the defendant intends to call as witnesses.

By contrast, under current New York law, the defendant only is required to disclose to the prosecution: reports and documents concerning physical/mental examinations and scientific tests or experiments or comparisons that the defendant performed or requested and intends to offer; electronic recordings, photographs, and drawings that the defendant intends to offer; and written or recorded statements of testifying defense witnesses (other than the defendant) that relate to the subject matter of their testimony, as well as known criminal histories of the testifying defense witnesses. And the defendant need not disclose such written and recorded statements and known criminal history information until after the prosecution has presented its case. Finally, the defendant need not disclose contact information for intended defense witnesses (except for potential alibi and psychiatric evidence witnesses, as required under Article 250). 120

Notably, the prosecution also is entitled to two other forms of discovery from the defendant which are set forth in a different provision of this article and in Article 250. First, the prosecution can obtain non-testimonial evidence – such as blood or hair samples, or requiring the defendant to appear in a lineup or to undergo a medical examination – by making a motion pursuant to section 245.40. Second, Article 250 requires a defendant to file early written notice of his or her intention to offer alibi compelled to participate in various nontestimonial identification procedures. The prosecutor may force third persons to cooperate through the use of grand juries and may issue subpoenas requiring appearance before prosecutorial investigatory boards. With probable cause the police may search private areas and seize evidence and may tap telephone conversations. They may use undercover agents and have access to vast amounts of information in government files. Finally, respect for government authority will cause many people to cooperate with the police or prosecutor voluntarily when the might not cooperate with the defendant’”)(citation omitted). 119 See Mass. R. Crim. P. 14(a)(1)(B); Fla. R. C.P. 3.220(d)(1)(A), 3.220(d)(1)(B); Cal. Penal Code §1054.3(a). 120 See C.P.L. §§240.30, 240.44, 240.45.

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evidence or psychiatric evidence, or to raise certain defenses to computer crimes. These provisions are unaffected by this article, and subdivision (1)(f) of section 245.20 (which addresses discovery of expert opinion evidence) dispels any confusion on this point by stating: “This subdivision does not alter or in any way affect the procedures, obligations or rights set forth in section 250.10.” No equivalent clarifying statement is needed in connection with Article 250’s notice of alibi evidence and notice of computer-crime defense requirements, because unlike the notice of psychiatric evidence requirement (which is closely linked to expert witness information), clearly these other notice obligations are not implicated by this provision.

Subpart (ii) of this provision recognizes that, in the limited situation where a prospective defense witness would be called (if at all) for the sole purpose of impeaching a prosecution witness if necessary, disclosure of that person’s name, known aliases, address, birth date and written or recorded statements is not required until after the prosecution witness has testified. This commonsense limitation is included in the ABA’s recommended discovery rules, and it recognizes that the defendant does not “intend” to call such a witness – he or she would do so only depending on what testimony the prosecution witness actually gives, and that cannot be determined in advance. Another reason that supports this rule is that the court will instruct the jury that it is not allowed to consider the defense impeachment witness’s testimony for the truth of its contents, but only for assessing the credibility of the prosecution witness whose testimony is being impeached.121 Accordingly, the prosecution does not normally have to thoroughly investigate the background of a mere potential defense impeachment witness prior to the trial.

Subpart (iii) of this provision recognizes that, as a practical matter, it may be unreasonably burdensome or even impossible for the defense to disclose its expert opinion evidence within thirty days of receiving the prosecution’s Certificate of Compliance with its initial discovery obligations. Just as subdivision (1)(f) of section 245.20 gives the prosecution additional leeway to perform these tasks, this provision gives the defense lawyer corresponding flexibility when necessary to provide later discovery of expert opinion evidence, without having to make a motion to amend the timeframe of discovery under section 245.75. As explained in the Commentary to subdivision (1)(f) of section 245.20, frequently it takes more than thirty days to find, retain, and consult with an expert witness, and for the expert to make findings and to complete a report.

The provision still requires defense counsel to exercise reasonable diligence in obtaining expert opinion evidence, and to disclose it as soon as practicable. It stipulates that disclosure of such evidence must occur at least thirty calendar days before trial, because the prosecutor also needs enough time to consult a potential expert witness and to obtain and turn over possible responsive expert opinion evidence, as required by the continuing duty to disclose subsequently acquired information under section 245.60. Notably, section 245.60 specifically flags for prosecutors that they must expeditiously disclose any discoverable evidence “that became relevant to the case or discoverable based upon reciprocal discovery received from the defendant.”

121 See People v. Freedman , 9 N.Y.2d 600 (1961); People v. Montgomery , 22 A.D.3d 960 (3rd Dept. 2005); People v. Martinez , 173 A.D.2d 310 (1st Dept. 1991).

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PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no requirement that the defendant disclose the names and addresses of his or her prospective witnesses before the time of a pre-trial hearing or a trial (except for potential alibi and psychiatric evidence witnesses, as required under Article 250). See C.P.L. §240.20; People v. Izquierdo , 292 A.D.2d 247, 248 (1st Dept. 2002); People v. Miller , 106 A.D.2d 787 (3rd Dept. 1984). The defendant is required to disclose written and recorded statements made by testifying defense witnesses (other than the defendant) only when they relate to the subject matter of the witnesses’ testimony, and such statements need not be turned over until the time of the witnesses’ testimony. See C.P.L. §§240.44(1), 240.45(2)(a).

The defendant need only disclose his or her intended expert opinion evidence in two respects. First, if the defense intends to present psychiatric evidence, it must file a pre-trial notice specifying the nature of the proffered psychiatric defense and providing enough information to enable the prosecution to discern the general nature of the alleged psychiatric malady and its relationship to the proffered defense. See C.P.L. §250.10; People v. Almonor , 93 N.Y.2d 571, 580-81 (1999). Second, when the defense calls an expert witness, it must disclose written and recorded statements that relate to the subject matter of the expert’s testimony, but they need not be turned over until the pre-trial hearing or the trial. See C.P.L. §§240.44(1), 240.45.

Finally, under current law, the defendant must disclose certain types of “property” listed in C.P.L. §240.30(1) fifteen days after receiving a demand for them during motion practice after arraignment, “or as soon thereafter as practicable.” See C.P.L. §§240.80(3), 240.30(1); see also C.P.L. §240.90(1). That “property” includes reports and documents concerning physical/mental examinations and scientific tests and experiments and comparisons, but only when, first, the defendant performed or requested them, and, second, either the defendant intends to introduce them, they were made by an intended defense witness (other than the defendant), or the defendant has filed a notice of intent to offer psychiatric evidence under C.P.L. §250.10 and they relate to that evidence. See C.P.L. §240.30(1)(a). It also includes photographs, drawings, and tapes or electronic recordings when the defendant intends to introduce them at trial. The defendant need not disclose other kinds of intended exhibits or tangible objects, even if he or she intends to introduce them at trial. See C.P.L. §240.30(1)(b). Finally, the defendant is not required to disclose promises, rewards, or inducements made to intended defense witnesses.

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SOURCES OF PROPOSED C.P.L. §245.20(4): The first three sentences of this provision are modified from Mass. R. Crim. P. 14(a)(1)(C); Colo. R. Crim. P. 16 Part I (b)(1); see also C.P.L. §§240.35, 240.50(3), 240.80(2). The third sentence of this provision is modified from “ABA Criminal Justice Section Standards – Discovery,” Standard 11-6.6.

COMMENTARY ON PROPOSED C.P.L. §245.20(4): This provision establishes that the timing of discovery as set forth in subdivisions one (1) and three (3) of section 245.10, and the extent of discovery as set forth in subdivisions one (1), two (2) and three (3) of section 245.20, are mandatory requirements just as if they had been court orders. The efficacy of section 245.85 – which addresses the court’s power to impose remedies and sanctions for noncompliance with the discovery article – is enhanced by this provision’s deeming the statutory discovery obligations to be equivalent to court orders, and its statement that the court can impose remedies or sanctions for their violation by either party. Subdivision two (2) of section 245.10, which addresses discovery in the limited context of guilty plea offers that have a deadline, is excluded here because that provision itself specifies when remedies and sanctions for its violation are available to a defendant.

Importantly, the provision also allows either party (when appropriate) to withhold discovery materials as to which it believes a protective order would be issued for good cause pursuant to section 240.75. Such authorization to temporarily withhold discovery is necessary, because there is not always time to obtain an actual ruling from the court on the merits of an application for a protective order prior to the statutory deadlines for providing discovery. Nevertheless, like subdivisions one (1) and three (3) of section 245.10, this provision specifies that the party withholding discoverable material must notify the opposing party in writing, so that the opposing party will not be misled about disclosed materials and will be aware of the possibility of raising arguments concerning the application for a protective order. This written notice requirement is consistent with current New York law, which also allows a party to withhold any discoverable materials but dictates that such a refusal must be in writing. 122 But Article 240 does not contain as categorical a statement that the party withholding or redacting otherwise discoverable materials always must make an application for a protective order.123

Finally, the provision requires a party withholding or redacting part of a discoverable item to disclose the remainder of the item, whenever doing so is consistent with the underlying reasons and need for the protective order. It does so because the parties should receive all of the discovery materials covered by the article, to the full extent possible.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, both parties may refuse to disclose any information that they reasonably believe is

122 See C.P.L. §240.35. 123 Compare C.P.L. §240.20(1)(disclosures must be made “[e]xcept to the extent protected by a court order…”) with C.P.L. §240.35 (disclosures may be withheld when the prosecutor “reasonably believes a protective order would be warranted”) and C.P.L. §240.40(1)(b)(the court must order disclosure upon motion of the defendant “unless it is satisfied that the people have shown good cause why such an order should not be issued”) and C.P.L. §240.50 (protective orders may be granted for good cause “upon motion of either party”).

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not discoverable or as to which a protective order would be warranted. Such a refusal must be made in a writing that sets forth the grounds for that belief as fully as possible, consistent with the objective of the refusal, and it must be served on the opposing party and filed with the court. See C.P.L. §240.35. A motion for a protective order suspends discovery of the particular matter in dispute. See C.P.L. §240.50(3).

SOURCES OF PROPOSED C.P.L. §245.20(5): This provision is modified from Mass. R. Crim. P. 14(a)(1)(E); see also Ariz. R. Crim. P. 15.1(g); C.P.L. §§240.20(2), 240.30(2).

COMMENTARY ON PROPOSED C.P.L. §245.20(5): Subpart (i) of this provision requires the prosecution to inform the defendant if it receives information that third parties possess otherwise discoverable materials or information (i.e. , evidence not within the prosecution’s “possession, custody or control”). The prosecution also must provide the defendant with all known information about the item’s location and the identity of its possessor. The provision is based on the Massachusetts rule. Given the underlying goals of full and open information-sharing, there is no reason for the prosecutor not to pass on to the defendant known leads for potential investigation that could result in discovery of significant additional evidence. (Because of the defendant’s constitutional privilege against self- incrimination, and rights to due process and to loyal and competent counsel, a defendant cannot similarly be required to provide investigatory leads to the prosecution.)

Subpart (ii) of this provision authorizes either party to move for an expedited order directing any individual or entity in possession of otherwise discoverable materials to preserve them for a specified period. This is based on the Massachusetts rule. But it goes further than the Massachusetts rules by also authorizing a defendant to move for an expedited order directing any individual or entity in possession of a

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crime scene that relates to the subject matter of the case or is otherwise relevant to allow counsel for the defendant prompt and reasonable access to inspect, photograph or measure that crime scene, at a time when its condition remains unchanged. Any affected party can apply to the court when necessary for modification or vacatur of such orders, based on a showing that they will cause significant hardship (provided that alternative means have been established to preserve the probative value of the evidentiary materials or the crime scene for use at trial). This portion of the provision also follows the Massachusetts rule.

Having a mechanism to obtain an expedited order to preserve evidence is important, because it affords both the prosecution and the defense additional time and flexibility in which to subpoena or otherwise obtain the materials, with the assurance that the individual or entity in possession of them is under a court order not to destroy or otherwise dispose of them. This enhances the parties’ abilities to move for a discretionary order of discovery under section 245.30, or to issue subpoenas in certain circumstances pursuant to Article 610.124 It also provides the defense lawyer with added flexibility and time within which to comply with the requirement of current New York law that a defense application for a judicial subpoena duces tecum to a government agency must be on one day’s notice to the subpoenaed governmental agency and to the prosecution, secure in the knowledge that the materials sought by subpoena will be preserved in the interim.125

Likewise, having a mechanism for the defense lawyer to obtain prompt access to a crime scene to make observations and to take photographs (supervised by law enforcement, as the court requires) is important.126 Sometimes a reasonable investigation of the case requires seeing a crucial but private location before it is cleaned, and before possibly probative features bearing on the circumstances of the crime or the defense are altered and lost. 127 In such situations, the defendant should not be limited solely to the photographs of the crime scene taken by the police, especially because there may be significant aspects of the offense or the location that are known only to the defendant and were not photographed by law enforcement. Such a crime scene visit ordinarily would be most valuable shortly after the defendant has been charged, and virtually always police investigators would have already completed their evidence collection work at the location by that time. Finally, the court always retains discretion whether to grant, limit, modify or vacate such orders, as fairness to the defendant, and to any other affected party, requires.

124 See C.P.L. §610.20; People v. Kozlowski , 11 N.Y.3d 223 (2008); People v. Combest , 4 N.Y.3d 341, 346 (2005); Matter of Terry D. , 81 N.Y.2d 1042, 1044 (1993); People v. McClain , 53 A.D.3d 556 (2d Dept. 2008); People v. Ricketts , 38 A.D.3d 291 (1st Dept. 2007); cf. Matter of Constantine v. Leto , 77 N.Y.2d 975 (1991), aff’g, 157 A.D.2d 376, 378 (3rd Dept. 1990); People v. Gissendanner , 48 N.Y.2d 543 (1979); People v. Bagley , 279 A.D.2d 426 (1st Dept. 2001). 125 See C.P.L. §610.20(3); C.P.L.R §2307. 126 See, e.g. , Minn. R. Crim. P. 9.01 Subd. 1 (3) (requiring the prosecutor to “permit defense counsel to inspect and photograph buildings or places which relate to the case”). 127 See generally People v. Droz , 39 N.Y.2d 457, 462 (1976); Thomas v. Kuhlman , 255 F.Supp.2d 99 (E.D.N.Y. 2003); People v. Donovan , 184 A.D.2d 654 (2d Dept. 1992); People v. Armstrong , N.Y.L.J. 11/16/95, p. 30, col. 5 (Sup. Ct., Queens Co. 1995), aff’d , 249 A.D.2d 317 (2d Dept. 1998).

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PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no requirement for the prosecution to inform the defendant that third parties possess otherwise discoverable materials, or of the item’s location and the identity of its possessor. There is also no mechanism in the discovery statute for the parties to obtain an expedited order directing a third party to preserve evidence (or at least to memorialize its probative value) for a specified period. Likewise, the discovery statute does not include a mechanism for the defense lawyer to obtain prompt access to inspect and photograph a private or otherwise restricted location that was the crime scene. Furthermore, the court lacks authority to order discovery in criminal cases that is not otherwise covered by the discovery statute, constitutionally required, or specifically mandated by law. See People v. Colavito , 87 N.Y.2d 423, 427 (1996); see also People v. Iannone , 45 N.Y.2d 589, 596-600 (1978).

Finally, under limited circumstances and subject to various restrictions (including that a defense application for a judicial subpoena duces tecum to a governmental agency must be on one day’s notice), the parties may issue subpoenas for the attendance of witnesses who may be required to bring with them specified documents or other evidence. See C.P.L. §§610.10(3), 610.20; C.P.L.R §2307; see also People v. Kozlowski , 11 N.Y.3d 223 (2008); People v. Combest , 4 N.Y.3d 341 (2005); Matter of Terry D. , 81 N.Y.2d 1042 (1993); Matter of Constantine v. Leto , 77 N.Y.2d 975 (1991), aff’g , 157 A.D.2d 376 (3rd Dept. 1990); People v. Gissendanner , 48 N.Y.2d 543 (1979); People v. McClain , 53 A.D.3d 556 (2d Dept. 2008); People v. Ricketts , 38 A.D.3d 291 (1st Dept. 2007); People v. Bagley , 279 A.D.2d 426 (1st Dept. 2001).

245.25. Material Held by Other Governmental Personnel

SOURCES OF PROPOSED C.P.L. §245.25: This provision is modified from Ill. S. Ct. R. 412 (g); Mo. R. Crim. P. 25.03(C); Colo. R. Crim. P. 16 Part I (c); Minn. R. Crim. P. 9.01 Subd. 2 (1).

COMMENTARY ON PROPOSED C.P.L. §245.25: This provision requires the prosecutor, upon a particularized request by the defense, to make diligent and good faith efforts to obtain specified evidence that would be discoverable under this article except that it is within the control of governmental agencies or personnel that are deemed by law to be not within the prosecution’s “custody or control.”128 It further

128 See generally People v. Washington , 86 N.Y.2d 189 (1995); People v. Flynn , 79 N.Y.2d 879 (1992); People v. Tissois , 72 N.Y.2d 75, 78 (1988); People v. Reedy , 70 N.Y.2d 826, 827 (1988); cf. Pennsylvania v. Ritchie , 480 U.S. 39, 57-58 (1987).

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provides that, if the prosecutor’s efforts are unsuccessful, the court, upon defense motion, can issue subpoenas or orders to secure the evidence from any governmental agency or personnel subject to its jurisdiction. Such subpoenas are returnable to the court under current New York law, so the court will be able to review the evidence in advance to confirm that its disclosure to the defendant will be appropriate. 129 This provision is based on similar rules in Illinois, Colorado, Missouri and Minnesota.

The provision furthers the underlying goals of full and open discovery by establishing a mechanism for obtaining potentially relevant information from governmental agencies and personnel as to which, pursuant to the standards established by decisional law, the prosecutor’s office does not have a law enforcement relationship so as to exercise “control” over items within their possession. When the defendant has identified specific evidence as potentially relevant and within the control of such a governmental agency, it makes sense to require the prosecutor initially to attempt to obtain it. Governmental personnel will, of course, be far more likely to cooperate with a prosecutor’s request than with that of a criminal defense lawyer. Such informal requests will garner the evidence in many instances without the need for inefficient and burdensome motion practice or involvement of the court. But in those situations where reasonably diligent efforts by the prosecutor were unsuccessful, the court has the authority to issue subpoenas or orders to obtain the evidence.

The provision works in tandem with subdivision five (5) of section 245.20, which requires the prosecutor to notify the defendant of otherwise discoverable items within the control of other governmental agencies (as well as private individuals and organizations). Together they help to ensure that all potentially relevant information will be available to the defendant early in the case, so that the defense can undertake an informed investigation, evaluate whether the defendant should enter a guilty plea, or plan an appropriate strategy for trial that incorporates all possibly exculpatory information. Unlike subdivision five (5) of section 245.20, however, the provision does not extend to evidence possessed by private individuals and organizations. The prosecutor’s duties to assist in retrieving specific evidence should be reasonably limited to that possessed by governmental agencies, in part because the defendant already is entitled under current New York law to subpoena certain relevant items from private individuals and organizations without obtaining a judge’s authorization in advance.130

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no burden on the prosecution to obtain or disclose evidence that is within the possession of governmental agencies that do not work in coordination with law enforcement. See, e.g. , People v. Washington , 86 N.Y.2d 189 (1995); People v. Flynn , 79 N.Y.2d 879 (1992); People v. Tissois , 72 N.Y.2d 75, 78 (1988); People v.

129 See C.P.L. §§610.25(1), 610.10(2); People v. Natal , 75 N.Y.2d 379 (1990). 130 See C.P.L. §610.20(3); see also People v. Combest , 4 N.Y.3d 341 (2005); People v. Kozlowski , 11 N.Y.3d 223 (2008); People v. McClain , 53 A.D.3d 556 (2d Dept. 2008); People v. Ricketts , 38 A.D.3d 291 (1st Dept. 2007). In contrast, a defendant must obtain a judicial subpoena to obtain materials from a governmental agency. See C.P.L. §610.20(3); C.P.L.R §2307; see also People v. Gissendanner , 48 N.Y.2d 543, 550-51 (1979); Matter of Terry D. , 81 N.Y.2d 1042 (1993); Matter of Constantine v. Leto , 77 N.Y.2d 975 (1991), aff’g, 157 A.D.2d 376 (3rd Dept. 1990); People v. Bagley , 279 A.D.2d 426 (1st Dept. 2001).

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Reedy , 70 N.Y.2d 826, 827 (1988); People v. McClain , 53 A.D.3d 556 (2d Dept. 2008); see also C.P.L. §240.20(1); cf. Pennsylvania v. Ritchie , 480 U.S. 39 (1987). There is also no burden on the prosecution to disclose evidence that has not been “gathered by the prosecution or its agent.” See People v. James , 93 N.Y.2d 620, 644 (1999); People v. Banks , 2 A.D.3d 226 (1st Dept. 2003); see also People v. Colavito , 87 N.Y.2d 423 (1996). Furthermore, there is no authority for the court to grant discovery of items not enumerated in Article 240 or constitutionally or otherwise specifically mandated by law. See People v. Colavito , 87 N.Y.2d 423 (1996); see also C.P.L. §240.20(2)(“the prosecutor shall not be required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain”).

The defendant has a right to subpoena items from governmental agencies only under strictly limited circumstances, and the right to do so does not ordinarily include materials covered by Article 240. See C.P.L. §610.20(3); C.P.L.R §2307; Matter of Terry D. , 81 N.Y.2d 1042, 1044 (1993); Matter of Constantine v. Leto , 77 N.Y.2d 975 (1991), aff’g, 157 A.D.2d 376, 378 (3rd Dept. 1990); People v. Gissendanner , 48 N.Y.2d 543, 550-51 (1979); People v. Bagley , 279 A.D.2d 426 (1st Dept. 2001).

245.30. Discretionary Discovery by Order of the Court

SOURCES OF PROPOSED C.P.L. §245.30: The first sentence of this provision is modified from Colo. R. Crim. P. 16 Part I (d)(1); Ariz. R. Crim. P. 15.1(g); see also Mass. R. Crim. P. 14(a)(2). The second sentence of this provision is modified from Ariz. R. Crim. P. 15.1(g). The third and fourth sentences of this provision are modified from C.P.L. §240.90(3).

COMMENTARY ON PROPOSED C.P.L. §245.30: This provision authorizes the court within its discretion to grant discovery to the defendant of important evidence that is not otherwise discoverable. The availability of such discretionary discovery orders is limited to situations where the defendant not only establishes that he or she cannot (without undue hardship) obtain substantially equivalent evidence by other means, but also that the evidence sought potentially relates to the subject matter of the case or is otherwise relevant. Given the underlying goals of full and open discovery, the court should have the authority to permit discovery of specific items that are needed for a complete investigation and fair presentation of the defense

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but are not enumerated in the discovery article. The criminal discovery rules in many other states provide for such flexibility in discovery practice, so as to ensure that all pertinent materials will be presented to the fact-finder at trial and thereby to ensure more accurate verdicts.131

The provision allows for an order directing discovery of particularized material or information from both the prosecution and from other individuals, agencies, or entities. To avoid any undue hardship to a party ordered to disclose evidence, it requires that the defendant’s motion be on notice to any affected person or entity, and it allows any affected person or entity when appropriate to submit papers or to testify in opposition to the order outside of the presence of other parties and/or in chambers. 132 Such papers and a transcript of such testimony must be sealed and kept available for potential appellate review.

Finally, the provision does not give the prosecution the right to obtain discretionary discovery from the defendant because such discovery may undermine the defendant’s constitutional privilege against self-incrimination and constitutional rights to due process and to loyal counsel. Further, the court should not order types of discovery from a defendant that are not also statutorily available from the prosecution. Instead, reciprocal discovery from the defendant should be limited to evidence and witnesses that the defense intends to introduce (as explained in the Commentary to subdivision three [3] of section 245.20).

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no “catch-all” discovery provision and the court lacks authority to grant discovery of evidence that is not specifically covered by the discovery article, or constitutionally or otherwise specifically mandated. See People v. Colavito , 87 N.Y.2d 423, 427 (1996); People v. Hill , 285 A.D.2d 474 (2d Dept. 2001); Pittari v. Pirro , 258 A.D.2d 202 (2d Dept. 1999); Pirro v. LaCava , 230 A.D.2d 909 (2d Dept. 1996). The discovery statute allows for only one narrow form of discretionary discovery: upon a showing by the defendant that undisclosed “property” (but not other types of evidence and information) that the prosecution possesses and intends to introduce at trial is material to the case and that the request for it is reasonable, the court may order its disclosure. See C.P.L. §§240.40(1)(c); People v. Copicotto , 50 N.Y.2d 222 (1980).

The defendant also may subpoena specific relevant items under strictly limited circumstances, but that right as well does not ordinarily apply to materials covered by Article 240. See C.P.L. §610.20(3); Matter of Terry D. , 81 N.Y.2d 1042,

131 See, e.g. , Mass. R. Crim. P. 14(a)(2); Fla. R. C.P. 3.220(f); Colo. R. Crim. P. 16 Part I (d)(1); Ariz. R. Crim. P. 15.1(g); Ill. S. Ct. R. 412(h); Pa. R. Crim. P. 573 (B)(2)(a)(iv). 132 If proposed Article 245 is enacted, an amendment to C.P.L. §610.20(3) should be enacted to remove the requirement that a defense application for a judicial subpoena to a government agency must be on one day’s notice to the subpoenaed government agency and to the prosecution (as required under C.P.L.R. §2307), which has the effect of requiring the defense (but not the prosecution) to implicitly reveal its strategy to the opposing party. Instead, the defense should be permitted to apply for the subpoena ex parte and to serve the subpoena once issued only on the governmental agency. Notably, the 2008 report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge also suggests this statutory amendment. See “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. 138-41.

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1044 (1993); Matter of Constantine v. Leto , 77 N.Y.2d 975 (1991), aff’g, 157 A.D.2d 376, 378 (3rd Dept. 1990); see also People v. Kozlowski , 11 N.Y.3d 223 (2008); People v. Combest , 4 N.Y.3d 341, 346 (2005); People v. Gissendanner , 48 N.Y.2d 543, 550-51 (1979); People v. Bagley , 279 A.D.2d 426 (1st Dept. 2001); cf. People v. Colavito , 87 N.Y.2d 423, 428 (1996); People v. Washington , 86 N.Y.2d 189, 193 (1995); People v. McClain , 53 A.D.3d 556 (2d Dept. 2008); People v. Wright , 225 A.D.2d 430, 433 (1st Dept. 1996); C.P.L. §240.20(2)(“the prosecutor shall not be required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain”).

245.35. Depositions

SOURCES OF PROPOSED C.P.L. §245.35(1): This provision is modified from Ariz. R. Crim. P. 15.3(a)(2), (f); see also C.P.L. §660.20; Fla. R. C.P. 3.220(h)(1).

COMMENTARY ON PROPOSED C.P.L. §245.35(1): This provision authorizes videotaped discovery depositions upon motion of either party, in limited circumstances and within the court’s discretion. It is based on the Arizona rule. Under current New York law, there is no formal discovery mechanism for the parties early in the case to ascertain relevant information from a witness. One narrow exception is that, if the parties are aware that a material witness may not be available at the time of trial because he or she is about to leave the state and not return, or because he or she is physically ill or incapacitated, they can move for a conditional examination of the witness pursuant to Article 660 and such testimony later may be admitted at a trial as substantive evidence. 133

It substantially advances the search for the truth to have a generally available mechanism for the court to compel a recalcitrant person who possesses information necessary adequately to prepare for trial to be examined in a structured format by the attorneys for both parties. Depositions may be especially useful early in a case before the witness’s memory has faded, so this provision allows for either party to seek a videotaped deposition of a key uncooperative witness “at any time” after an accusatory instrument is filed. Of course, court-ordered depositions of the defendant are impermissible, because they would violate the Fifth Amendment privilege against self-incrimination.

The provision will not result in appreciable costs to the state, because the depositions are available only in narrow circumstances and they will be videotaped (an inexpensive technology). Many other states have significantly more expansive

133 See C.P.L. §§660.20, 670.10(1).

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rules authorizing criminal discovery depositions than the Arizona rule from which this provision is modified (including Florida, Iowa, Missouri, Nebraska, New Hampshire, North Dakota, Texas and Vermont).134 In particular, Florida has employed an entitlement to automatic discovery depositions of many types of witnesses in criminal cases for over forty years, and its system consistently has been endorsed by review commissions.135

This provision takes a far more limited approach and restricts the availability of videotaped discovery depositions by either party in three main ways. First, a party seeking to depose a witness must establish the witness’s materiality or that the deposition is necessary adequately to prepare a defense. Second, the moving party must have tried to interview the witness but the witness refused. Third, the court serves as the gatekeeper to ensure that a deposition is reasonably necessary. (Notably, whereas the Arizona rule permits depositions when “necessary adequately to prepare a defense or investigate the offense ,” this provision deletes the italicized words because the prosecution should not ordinarily use depositions as an open- ended “investigatory” tool, but only to secure evidence from a specific “material” witness who will not otherwise cooperate in granting an interview.)

Statements made by a witness during a deposition pursuant to this section are admissible at subsequent proceedings as allowed by the rules of evidence and constitutional law that apply to all other out-of-court statements. Ordinarily such statements will be inadmissible hearsay, so the parties will not be allowed to use them for the truth of their contents but only for the limited purpose of contradicting or impeaching inconsistent testimony given by the deponent as a witness.136 But occasionally the statements may be admissible as substantive evidence for their truth, such as when they satisfy the requirements of the exception to the rule against hearsay for statements that were “against the penal interest” of the person who made them (including that the declarant is not available to testify at trial).137 Although

134 See Fla. R. Crim. P. 3.220(h)(1)(A), (h)(1)(D) (allowing depositions in felony cases of certain kinds of witnesses as of right, and of other kinds of witnesses upon agreement of the parties or with court approval; and allowing depositions in misdemeanor and traffic offense cases with court approval for good cause shown); Iowa R. Crim. P. 2.13; Mo. R. Crim. P. 25.12(a), 25.15; Neb. Rev. Stat. Ann. §29-1917(1); N.H. Rev. Stat. Ann. § 517:13; N.D. R. Crim. P. Rule 15(a); Tex. Code Crim. Proc. Ann. art. 39.02; Vt. R. Crim. P. 15(a), (e)(4); see also Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 607-13 (2006). 135 According to a study prepared by the Commission on Criminal Discovery created by the Florida Supreme Court in 1988, “the Florida judiciary was overwhelmingly in favor of retaining discovery depositions, and ‘[l]etters from attorneys … provided … instances demonstrating that the ability to take depositions prevented injustice and led to early dismissals of innocent defendants, with collateral economic benefit to the state.” See Florida Supreme Court Criminal Discovery Commission, “Report of the Florida Supreme Court’s Commission on Criminal Discovery” (1989), p. 27. The study concluded: “Discovery depositions in criminal cases are an important and cost-effective procedural mechanism and should be retained.” See id. at 20. 136 See generally People v. Freedman , 9 N.Y.2d 600 (1961); People v. Montgomery , 22 A.D.3d 960 (3rd Dept. 2005). 137 See, e.g. , People v. Brensic , 70 N.Y.2d 8, 14-15 (1987); People v. Settles , 46 N.Y.2d 154, 169-70 (1978); People v. Campney , 252 A.D.2d 734, 735 (3rd Dept. 1998); People v. Darrisaw , 206 A.D.2d 661 (3rd Dept. 1994); People v. Fonfrias , 204 A.D.2d 736 (2d Dept. 1994); People v. Smith , 195 A.D.2d 112 (1st Dept. 1994). A statement made at a deposition that is offered as substantive evidence by the prosecution against the defendant must, in addition, comport with the defendant’s constitutional rights under the Sixth Amendment’s 92 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

some states’ rules authorizing depositions in criminal cases (including the Arizona rule from which this provision is modified) categorically restrict the subsequent use of statements made at the deposition to only the limited purpose of contradicting or impeaching the deponent’s later testimony, there is no sound reason for prohibiting their use as substantive evidence when the hearsay rules and the Sixth Amendment’s Confrontation Clause allow it.

The main purpose of the hearsay rules and of the Confrontation Clause is to provide adequate assurance that an out-of-court statement offered for the truth of its contents is sufficiently reliable. If statements made at a deposition satisfy these requirements, they should be admitted – just like any other out-of-court statement which may be used as substantive evidence. In short, that statements were made in a deposition does not in itself provide any valid basis for distinguishing them from other types of recorded out-of-court statements. Their admissibility at subsequent proceedings should be governed by the ordinary rules of evidence and constitutional law.

A further reason not to restrict the admissibility of statements made at a deposition to only the limited purpose of impeaching the deponent’s trial testimony is that courts have held that, in certain situations, the defendant’s constitutional rights to due process and to present a defense may require courts to admit reliable but otherwise inadmissible out-of-court statements when offered by the defendant. 138 For this reason as well, a categorical rule prohibiting their use as substantive evidence would be unsound.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, neither party may depose a witness for discovery purposes in a criminal case. In contrast, the parties may secure the testimony of a material witness in a conditional examination when he or she will not be amenable or responsive to legal process or available at a later proceeding, either because he or she either is about to leave the state and not return or because he or she is physically ill or incapacitated. See C.P.L. §660.20.

Confrontation Clause. See, e.g. , Davis v. Washington , 547 U.S. 813 (2006); Crawford v. Washington , 541 U.S. 36 (2004); People v. Hardy , 4 N.Y.3d 192 (2005); see also People v. Freycinet , 11 N.Y.3d 38 (2008); People v. Rawlins , 10 N.Y.3d 136 (2008); People v. Nieves-Andino , 9 N.Y.3d 12 (2007); People v. Bradley , 8 N.Y.3d 124 (2006); People v. Goldstein , 6 N.Y.3d 119 (2005). 138 See, e.g. , Rosario v. Kuhlman , 839 F.2d 918, 924 (2d Cir. 1989); People v. Robinson , 89 N.Y.2d 648, 650 (1997); People v. James , 242 A.D.2d 389, 389-90 (2d Dept. 1997); People v. Bull , 218 A.D.2d 663, 664-65 (2d Dept. 1995); People v. Legrande , 176 A.D.2d 351, 352 (2d Dept. 1991); see also Chambers v. Mississippi , 410 U.S. 284, 294 (1973).

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terms and conditions set forth in the court’s order granting the deposition, and give reasonable notice of the deposition in writing to every other party.

SOURCES OF PROPOSED C.P.L. §245.35(2): This provision is modified from Ariz. R. Crim. P. 15.3(c).

COMMENTARY ON PROPOSED C.P.L. §245.35(2): This provision requires the party seeking to depose a witness to provide fair notice to the other parties and to the witness to be deposed, and to disclose all documents and other discoverable materials that are necessary for a fair examination. The court has the authority and flexibility to set or alter the conditions for taking discovery depositions. The provision is based on the Arizona rule.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, neither party may depose a witness for discovery purposes in a criminal case.

SOURCES OF PROPOSED C.P.L. §245.35(3): This provision is modified from Ariz. R. Crim. P. 15.3(d); N.J. CT. R. 3:13-2(b); Fla. R. C.P. 3.220(h)(7).

COMMENTARY ON PROPOSED C.P.L. §245.35(3): This provision establishes that depositions in criminal cases presumptively will be videotaped , to avoid the costs of transcript production that otherwise would create a fiscal burden on the state (insofar as it would have to pay for transcripts for the prosecution and for indigent defendants). It ensures that all parties will receive copies of a deposition videotape sufficiently in advance of trial for it to be useful for case preparation. It authorizes depositions using written interrogatories or by telephone when all the parties agree or when the court orders it. It requires the parties to disclose all documents and other materials necessary for a fair examination, and gives all parties the right to participate in the deposition. And it establishes that the rules governing witness depositions in civil cases are controlling. The provision is based on the Arizona rule.

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The defendant does not have the right to be physically present at a deposition, unless the parties agree or the court rules to the contrary for good cause. Excluding the defendant from a deposition will not infringe on his or her statutory or constitutional rights to be present at all material stages of the proceedings and to confront adverse witnesses, because a deposition is equivalent to an investigatory out-of-court interview of the deposed witness conducted by the defense lawyer, and the defendant has no right to attend such an interview.139 Excluding the defendant not only saves the state the costs of transporting an incarcerated defendant between jail and the location of a deposition, but it also averts possible improper uses of the deposition as a tool to interfere with or intimidate a witness.140

PERTINENT CURRENT NEW YORK LAW: Under current New York law, neither party may depose a witness for discovery purposes in a criminal case.

245.40. Non-Testimonial Evidence from the Defendant

(1.) Availability. After the filing of an accusatory instrument, and subject to constitutional limitations, the court may, upon motion of the prosecution showing probable cause to believe the defendant has committed the crime, a clear indication that relevant material evidence will be found, and that the method used to secure it is safe and reliable, require a defendant to provide non-testimonial evidence, including to:

(a) Appear in a lineup;

(b) Speak for identification by a witness or potential witness;

(d) Pose for photographs not involving reenactment of an event;

(e) Permit the taking of samples of the defendant’s blood, hair, and other materials of the defendant’s body that involves no unreasonable intrusion thereof;

(f) Provide specimens of the defendant’s handwriting; and

(g) Submit to a reasonable physical or medical inspection of the defendant’s body.

139 See generally C.P.L. §260.20; Snyder v. Massachusetts , 291 U.S. 97 (1934); People v. Dokes , 79 N.Y.2d 656 (1992); see also Crawford v. Washington , 541 U.S. 36 (2004). 140 If proposed Article 245 is enacted, an amendment to C.P.L. §30.30(4) might be made to specify that periods of delay in a case resulting from depositions must be excluded from the time within which the prosecution must be ready for trial.

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An order pursuant to this section may be denied, limited or conditioned as provided in section 245.70.

SOURCES OF PROPOSED C.P.L. §245.40: This provision is modified from C.P.L. §240.40(2)(b); see also Fla. R. C.P. 3.220(c)(1); Matter of Abe A., 56 N.Y.2d 288, 291 (1982).

COMMENTARY ON PROPOSED C.P.L. §245.40: This provision maintains the current discovery rules set forth in C.P.L. §240.40(2)(b) and codifies decisional law. Upon a prosecutor’s motion establishing certain prerequisites, it permits the prosecution to obtain non-testimonial evidence from a defendant – such as blood or hair samples, or requiring the defendant to appear in a lineup or to submit to a medical examination – even after the filing of an accusatory instrument and the resulting entry of a defense lawyer into the case. 141 Although C.P.L. §240.40(2)(b) also requires a “motion of the prosecutor” to obtain such evidence, it is inexplicably silent about the foundational showing necessary in that motion. But decisional law has established that the prosecutor must satisfy three conditions. This provision specifies those requirements, for the convenience of litigants and the courts.

Specifically, in Matter of Abe A. , 56 N.Y.2d 288, 291 (1982), the Court of Appeals ruled that a prosecutor’s motion to obtain non-testimonial evidence from a suspect who had not yet been formally charged with an offense required a showing of “(1.) probable cause to believe the suspect has committed the crime, (2.) a ‘clear indication’ that relevant material evidence will be found, and (3.) [that] the method used to secure it is safe and reliable.” Decisional law also has applied these three foundational requirements for a prosecutor’s motion to obtain non-testimonial evidence (including a showing of probable cause) when the defendant has been charged with a crime in an accusatory instrument. 142

In particular, requiring this showing is appropriate because the prosecution is entitled to move to obtain non-testimonial evidence from a defendant under this section at a time when he or she is charged merely in misdemeanor complaint or a felony complaint (which are not jurisdictionally sufficient charging documents), or when he or she is charged in an indictment and the court has not yet evaluated the evidence presented to the grand jury to confirm that it establishes probable cause the defendant committed the crime. Moreover, it will be a simple matter for a prosecutor to demonstrate probable cause when the defendant is charged in a valid and jurisdictionally sufficient accusatory instrument. Finally, the provision makes minor stylistic alterations to the language of C.P.L. §240.40(2)(b) to conform it with other provisions of this article.

141 Notably, the defendant’s Fifth Amendment privilege against self-incrimination is inapplicable to the provision of these types of evidence, because it “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” See Schmerber v. California , 384 U.S. 757, 761 (1966); People v. Slavin , 1 N.Y.3d 392, 396 (2004); People v. Havrish , 8 N.Y.3d 389 (2007); People v. Copicotto , 50 N.Y.2d 222 (1980). 142 See, e.g. , People v. Afrika , 13 A.D.3d 1218, 1219 (4th Dept. 2004)(“we reject the contention of the People that they could obtain a sample of defendant’s blood without a showing of probable cause” where the defendant had been formally charged); People v. Hammonds , 1 Misc.3d 880 (Sup. Ct., Westchester Co. 2003).

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PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution may move to obtain non-testimonial evidence from a defendant charged in an accusatory instrument upon a showing of “(1.) probable cause to believe the suspect has committed the crime, (2.) a ‘clear indication’ that relevant material evidence will be found, and (3.) [that] the method used to secure it is safe and reliable.” See C.P.L. §240.40(2)(b); People v. Afrika , 13 A.D.3d 1218, 1219 (4th Dept. 2004)(“we reject the contention of the People that they could obtain a sample of defendant’s blood without a showing of probable cause”); People v. Hammonds , 1 Misc.3d 880 (Sup. Ct., Westchester Co. 2003); see also Matter of Abe A. , 56 N.Y.2d 288 (1982).

245.45. Preservation of Evidence

SOURCES OF PROPOSED C.P.L. §245.45(1): This provision is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.45(1): This provision requires investigating police officers to take steps when practicable to preserve the availability of known material witnesses or known physical evidence, where it is apparent that they might be expected to play a significant role in a suspect’s defense were they found to be exculpatory. Specifically, when a witness or physical evidence appears to be of such a nature and potential significance that an accused would be unable to obtain other evidence, possessing a comparable potential to mitigate or negate his or her guilt were it found to be exculpatory, by other reasonably available means unless the police preserve its availability, the officers should take reasonable steps to obtain contact information from the witness or to gather the evidence. Examples of such materials that should be preserved if possible under certain circumstances include

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significant biological evidence that could be tested and might exonerate the defendant, or a potentially exculpatory and non-cumulative but transient eyewitness.

There is no federal constitutional due process duty for the police to gather potentially material evidence – as opposed to facially exculpatory evidence – except when their failure to do so constitutes “bad faith.” 143 As several states’ high courts have determined, however, a “bad faith” test for when the police must preserve potentially crucial (but not facially exculpatory) evidence is virtually unprovable in practice. Hence, it is tantamount to a blanket rule that investigating police officers never have a duty to preserve important materials that could have a decisive effect on the accuracy of the jury’s verdict.

These state high courts have rejected the unsound federal constitutional “bad faith” test as a matter of state constitutional due process, and have held that investigating police officers must preserve potentially crucial evidence under certain circumstances. Specifically, they have ruled that courts should balance the reasons for a failure to preserve potentially crucial evidence against the degree of prejudice to the defendant from its loss, and they should impose a remedy or sanction for a violation of state constitutional due process when key evidence improperly was not gathered.144 Of course, when the police fail to gather or to preserve important evidence, frequently it is permanently lost and the truth-finding process of the trial may be significantly and irremediably impaired. The existence of the evidence (let alone its contents) may never even become known to the defendant. 145

143 See People v. Jardin , 88 N.Y.2d 956, 958 (1996)(the police did not have to preserve a sample of the perpetrator’s DNA at the crime scene where it lacked “an exculpatory value evident before its destruction, loss or failure to preserve”); Arizona v. Youngblood , 488 U.S. 51, 55-58 (1988)(federal constitutional due process does not require the police to gather potentially material evidence except when the failure to do so constitutes “bad faith”); People v. Scott , 235 A.D.2d 317 (1st Dept. 1997)(following Youngblood ); cf. California v. Trombetta , 467 U.S. 479, 488-89 (1984)(indicating that federal constitutional due process requires the police to preserve known facially exculpatory evidence when it is “of such a nature that a defendant would be unable to obtain comparable evidence by other reasonably available means”); People v. Alvarez , 70 N.Y.2d 375, 379-80 (1987)(following Trombetta under the New York Constitution); People v. Haupt , 71 N.Y2d 292, 931 (1988) (considering a “number of factors” rather than requiring a showing of “bad faith” where evidence was not preserved); Youngblood v. West Virginia , 547 U.S. 867 (2006)(vacating the denial of a Brady claim, where a state trooper allegedly was shown a note apparently written by the complainants that both contradicted the state’s account of the incidents and supported the defense theory, yet “the trooper allegedly read the note but declined to take possession of it, and told the person who produced it to destroy it”). 144 See Illinois v. Fisher , 540 U.S. 544, 549 n.* (2004)(Stevens, J., concurring)(collecting cases indicating that at least nine state high courts that have considered the issue have rejected the restrictive federal constitutional due process “bad faith” standard of Arizona v. Youngblood , 488 U.S. 51 [1988], and under their state constitutional guarantees of due process have adopted broader standards that require the police in some circumstances to gather and preserve potentially exculpatory evidence); see, e.g. , State v. Morales , 657 A.2d 585, 593-95 (Conn. 1995)(“the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant received due process,” and instead the court must weigh the reasons for the unavailability of evidence against the degree of prejudice to the defendant). 145 See generally U.S. v. Bryant , 439 F.2d 642, 644 (D.C. Cir. 1971)(“Beside the carefully safeguarded fairness of the courtroom is a dark no-man’s-land of unreviewed bureaucratic and discretionary decision making. Too often, what the process purports to secure in its formal stages can be subverted or diluted in its more informal stages”); U.S. v. Rodriguez , 496 F.3d 221, 225 n.3 (2d Cir. 2007)(it is an open question of 98 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

The state high courts that have rejected the “bad faith” test have correctly recognized that, in limited circumstances, law enforcement investigators should be required to take reasonable steps to preserve critical evidence that obviously might contribute to the accuracy of the determination of a suspect’s guilt (such as biological evidence left by the perpetrator at the crime scene that could be subjected to DNA testing, or contact information for a key eyewitness to the crime). Yet the inherently vague balancing tests they have established in its place do not provide police officers – or litigants and courts – with enough guidance about when potentially critical evidence and witnesses must be preserved and when a remedy or sanction should be imposed for their loss. At the same time, legislation should not seek to micromanage or unduly constrain difficult police work.

This provision strikes the proper balance by establishing a fully workable standard that provides more specific guidance, while extending only to situations in which evidence actually known to the police plainly is of extreme and unique potential importance, and there is no sound reason for law enforcement investigators not to attempt to collect it. Several limitations in the provision restrict its scope to only that narrow category of cases.

Specifically, it contains seven main restrictions: (1.) it applies only when police officers are responding to “an apparent criminal incident,” and not when they are engaged in routine duties but subsequently learn that evidence they failed to collect potentially was important; (2.) it applies only when collecting the evidence is “practicable under the circumstances,” and not when dangers, limitations of personnel or cost, or other contingencies make doing so unfeasible; (3.) it applies only when a reasonable officer would be aware that the evidence/witness appears to be “of such a nature and potential significance that an accused may be unable to obtain other evidence, possessing a comparable potential to mitigate or negate his or her guilt were it found to be exculpatory, by other reasonably available means,” 146 and not when the evidence/witness was seemingly peripheral or cumulative of other evidence; (4.) it applies only when the officers are aware of the existence of the evidence/witness and of its potential connection to the crime under investigation, and not when the evidence/witness or its evidentiary significance or potential relationship to the crime is unknown to the police and not reasonably apparent from the surrounding circumstances; (5.) the defendant is entitled to an appropriate remedy or constitutional law “whether, in some cases, the preservation of exculpatory or impeaching information in a concrete form – such as by note taking – may be necessary to ensure that the information can be relayed accurately to the defense”); Stanley Z. Fisher, “‘Just the Facts Ma’am’: Lying and the Omission of Exculpatory Evidence in Police Reports,” 28 New Eng. L. Rev. 1 (1993); see also Strickler v. Greene , 527 U.S. 263, 275 (1999)(the defense never received exculpatory evidence despite an “open file” discovery agreement, because the documents were not contained in the prosecutor’s case file); People v. Kelly , 62 N.Y.2d 516, 520 (1984); People v. Springer , 122 A.D.2d 87, 89-90 (2d Dept. 1986); People v. Saddy , 84 A.D.2d 175, 178 (2d Dept. 1981); cf. Kyles v. Whitley , 514 U.S. 419, 438 (1995)(“any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government’s obligation to ensure fair trials”). 146 Although this language is drawn from California v. Trombetta , 467 U.S. 479, 488-89 (1984), that decision did not hold that the police have a constitutional due process duty to gather such evidence, and the Supreme Court later ruled that the federal constitution does not impose such a duty. See Arizona v. Youngblood , 488 U.S. 51 (1988); see also People v. Jardin , 88 N.Y.2d 956, 958 (1996); People v. Alvarez , 70 N.Y.2d 375, 379-80 (1987); People v. Scott , 235 A.D.2d 317 (1st Dept. 1997).

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sanction for a violation of the provision only when the failure by the police was of central and unmitigated importance, insofar as the defendant must establish in a motion that the evidence/witness is “irretrievably lost” and that no other evidence “possessing a comparable potential to mitigate or negate his or her guilt were it found to be exculpatory” could be located by reasonably available means; (6.) the court has discretion to select the most appropriate remedy or sanction for a violation of the provision, and when gauging the proper response, it can consider the reasons for the unavailability of the evidence and the degree of prejudice to the defendant; and (7.) the provision specifically excludes breath samples taken in connection with cases arising under the vehicle and traffic law, since the courts have reasonably determined that the technology used by the police to analyze such evidence is sufficiently reliable (and other ways exist for a defendant to contest the accuracy of the analysis at a trial) that the police should not be obligated always to collect two separate breath samples and to retain the second sample for the defendant’s use in preparation for trial. 147

PERTINENT CURRENT NEW YORK LAW: Under current New York law, when witnesses or evidence lack “apparent” or “known” exculpatory value, the police have no duty to gather or preserve them even when they “might be useful to a criminal defendant.” See Arizona v. Youngblood , 488 U.S. 51, 55-58 & n.*, 52 (1988); Illinois v. Fisher , 540 U.S. 544, 547-48 (2004); California v. Trombetta , 467 U.S. 479, 488-89 (1984); People v. Jardin , 88 N.Y.2d 956, 958 (1996). Instead, the failure to preserve witnesses or evidence that merely present “an avenue of investigation that might [lead] in any number of directions” – as opposed to having “exculpatory value” on their face – violates federal constitutional due process only when the police fail to preserve them in “bad faith.” See Arizona v. Youngblood , 488 U.S. 51, 56 n.*, 57-58 (1988); People v. Scott , 235 A.D.2d 317 (1st Dept. 1997).

In cases arising under the Vehicle and Traffic Law, the police are not required to obtain and preserve a second sample of the defendant’s breath for breathalyzer analysis by the defendant. See People v. Alvarez , 70 N.Y.2d 375 (1987); California v. Trombetta , 467 U.S. 479 (1984). In general, the defendant is not entitled to receive discovery of evidence unless it was “gathered by the prosecution or its agent.” See People v. James , 93 N.Y.2d 620, 644 (1999); People v. Banks , 2 A.D.3d 226 (1st Dept. 2003); see also People v. Colavito , 87 N.Y.2d 423 (1996).

When a constitutional or statutory duty to disclose evidence applies, the Court of Appeals has recognized that: “A necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made. Any other rule would facilitate evasion of the disclosure requirements.” See People v. Kelly , 62 N.Y.2d 516, 520 (1984); People v. Haupt , 71 N.Y.2d 929, 931 (1988); see also Giglio v. U.S. , 405 U.S. 150, 154 (1972)(“whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor”); People v. Simmons , 36 N.Y.2d 126, 132-33 (1975); Kyles v. Whitley , 514 U.S. 419, 438 (1995)(“any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government’s obligation to ensure fair trials”); cf. U.S. v. Rodriguez , 496 F.3d 221, 225 n.3 (2d Cir.

147 See People v. Alvarez , 70 N.Y.2d 375 (1987); California v. Trombetta , 467 U.S. 479 (1984).

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2007)(recognizing that it is an open question of constitutional law “whether, in some cases, the preservation of exculpatory or impeaching information in a concrete form – such as by note taking – may be necessary to ensure that the information can be relayed accurately to the defense”).

SOURCES OF PROPOSED C.P.L. §245.45(2): Parts of this provision are modified from 725 Ill. Comp. Stat. 5, §103-2.1; N.C. Gen. Stat. §15A-211; Tex. Crim. Proc. Code. art. 38.22(3); Wis. Stat. §968.073; D.C. law §15-351.

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COMMENTARY ON PROPOSED C.P.L. §245.45(2): This provision requires the police to videotape in their entirety all “interviews” with crime “suspects” that take place at a “police station or other facility of detention.” At least twelve other jurisdictions require police investigators to record custodial interrogations of a suspect.148 Such recordings are widely recognized as the principal method for addressing the difficult problem of false confessions by innocent suspects, and, thus, they help to avert wrongful convictions. Furthermore, requiring the police to record stationhouse interrogations also is beneficial for the law enforcement authorities themselves, and increasingly police departments nationwide are embracing and advocating the practice.

Approximately one-quarter of the over 220 wrongful convictions overturned as a result of DNA evidence testing in the United States have involved a false confession by the defendant. 149 Studies have concluded that false confessions typically result from some combination of the following factors: real or perceived intimidation of the suspect by the police; use or threats of force against the suspect by the police; compromised reasoning ability of the suspect due to exhaustion, stress, hunger, substance abuse, mental limitations, or limited education; devious interrogation techniques such as the use of untrue claims about incriminating evidence; and/or the suspect’s fear that failure to confess will result in harsher punishment.

Requiring the police to videotape their interrogations of a suspect helps to reduce the problem of false confessions in several ways, including by: creating a full record of the entire interrogation that includes the interactions between the interrogator(s) and the suspect immediately leading up to the confession; ensuring that the suspect’s rights are protected during the interrogation; and creating a deterrent that minimizes coercive and improper questioning techniques. For the practice to have these beneficial effects, studies have found that it is critical that the recording must focus on both the interviewer and the suspect throughout the interview, and that the recording must include both audio and visual components.150

Many police departments advocate videotaping the entirety of custodial interrogations of suspects, because the practice has several additional benefits for law enforcement. In particular, recordings: ensure the admissibility of legitimate confessions and reduce the time necessary to litigate and resolve constitutional suppression issues; help law enforcement personnel defend against allegations of coercion and prevent disputes about the interrogator’s conduct; free the interrogator

148 See 725 Ill. Comp. Stat. 5, §103-2.1; Me Rev. Stat. tit. 25, §2803-B (1)(K); N.C. Gen. Stat. §15A- 211; Tex. Crim. Proc. Code. art. 38.22(3); Wis. Stat. §968.073; D.C. law §15-351; see also Nevada Leg. Bill 179 (2008); New Mexico Ch. 252 (2005); N.J. Ct. R. 3:17; Stephan v. State, 711 P.2d 1156 (Alaska 1985); Commonwealth v. DiGiambattista , 813 N.E.2d 516 (Mass. 2004); State v. Scales , 518 N.W.2d 587 (Minn. 1994); State v. Barnett , 789 A.2d 629 (N.H. 2001); State v. Cook , 847 A2d 530 (N.J. 2004). 149 See www.innocenceproject.org/Content.314 (“False Confessions & Recording of Custodial Interrogations Fact Sheet”); see also Richard Ofshe and Richard Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” 74 Denv. U. L. Rev. 979 (1999); People v. Kogut , 10 Misc.3d 305 (Sup. Ct., Nassau Co. 2005); People v. Tankleff , 49 A.D.3d 160 (2d Dept. 2007). 150 See www.innocenceproject.org/Content.314 (“False Confessions & Recording of Custodial Interrogations Fact Sheet”).

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from taking notes during the questioning; capture subtle details that may not otherwise be noticed and cannot be convincingly conveyed for the court and the jury; create highly persuasive and more reliable evidence of guilt; make it difficult for the defendant to change his or her story from the original videotaped account; and increase public confidence in law enforcement and reduce citizen complaints against the police.

The Court of Appeals recently remarked on the burgeoning practice of police departments recording custodial interrogations with crime suspects, declaring in a footnote in a 2005 decision: “We note that an increasing number of jurisdictions are now mandating that police questioning of arrestees be recorded, and that a resolution calling for all law enforcement agencies to videotape in their entirety the custodial interrogations of crime suspects has recently been adopted by the New York State and American Bar Associations. Currently, Alaska, Illinois, Maine, Minnesota, Texas and the District of Columbia have, by statute or case law, mandated the electronic recording of custodial interrogations…. As of Summer 2004, law enforcement agencies in at least 238 cities and counties, including Los Angeles, San Francisco, San Diego, Houston and Portland, Oregon, regularly record custodial interviews of suspects in felony or other serious investigations.” The Court of Appeals also noted that, under Massachusetts law, a defendant whose interrogation has not been completely recorded is entitled on request to an instruction to the jury at trial that “the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable,” and that because of the absence of recording, evidence of the defendant’s alleged statement should be weighed “with great caution and care.” 151

In the three years after these remarks by the Court of Appeals, six additional states have adopted requirements for the police to videotape custodial interrogations of crime suspects. As of February 2008, twelve jurisdictions required such recordings. 152 The recording rules in these jurisdictions have defined the circumstances when the police must record their questioning of a crime suspect by using the legal test for when the police must give a suspect the so-called “Miranda

151 See People v. Combest , 4 N.Y.3d 341, n.5 (2005), citing Commonwealth v. DiGiambattista , 813 N.E.2d 516, 533-34 (Mass. 2004). 152 Eight of these twelve jurisdictions required recording of police interrogations by statute: Illinois, Maine, Nevada, New Mexico, North Carolina, Texas, Wisconsin, and the District of Columbia. Five other jurisdictions required it by court decisions: Alaska, Massachusetts, Minnesota, New Hampshire, and New Jersey. Their rules vary in several ways. Five states require suppression of the defendant’s statements for a failure to record (Alaska, Illinois, Minnesota, New Hampshire, and Texas). Three states require an adverse jury instruction for a failure to record (Massachusetts, Nevada, and Wisconsin). Two states allow the trial court to impose either suppression or an adverse jury instruction (New Jersey and North Carolina). Three jurisdictions do not specify the penalty (the District of Columbia, Maine, and New Mexico). Five states require recording for all types of crimes (Alaska, Massachusetts, Minnesota, New Hampshire, and Texas). Two states require recording for all felonies under investigation (New Mexico and Wisconsin). Five jurisdictions require recording for homicides or “serious” felonies under investigation (the District of Columbia, Illinois, Maine, Nevada, New Jersey, and North Carolina). See 725 Ill. Comp. Stat. 5, §103-2.1; Me Rev. Stat. tit. 25, §2803-B (1)(K); N.C. Gen. Stat. §15A-211; Tex. Crim. Proc. Code. art. 38.22(3); Wis. Stat. §968.073; D.C. law §15-351; see also Nevada Leg. Bill 179 (2008); New Mexico Ch. 252 (2005); N.J. Ct. R. 3:17; Stephan v. State, 711 P.2d 1156 (Alaska 1985); Commonwealth v. DiGiambattista , 813 N.E.2d 516 (Mass. 2004); State v. Scales , 518 N.W.2d 587 (Minn. 1994); State v. Barnett , 789 A.2d 629 (N.H. 2001); State v. Cook , 847 A2d 530 (N.J. 2004).

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warnings” concerning the rights to remain silent and to consult an attorney: the existence of “custodial interrogation.” 153 By contrast, this provision defines the circumstances when the police must make a videotaped recording by using the more self-evident and straightforward standard of whether the police are conducting an “interview” of a crime “suspect” inside “a police station or other facility of detention.”

This interview-based standard has three great advantages. First, it will better ensure that all formal questioning leading up to and potentially prompting a suspect’s initial incriminating statements at a police station (which often are in themselves the factor that transforms the suspect into a person being subjected to “custodial interrogation”) will be recorded. In other words, since interrogation practices at a police station can prompt a person to make incriminating statements even when he or she is not deemed “in custody” under the high legal standard for when a person is being subjected to “custodial interrogation” – and a key purpose of a videotaping requirement is to record the interactions that led up to and may have prompted incriminating statements that could be false – it is more appropriate to require that the whole formal “interview” be recorded, than merely to require a recording of the portion of the interview after the suspect has become “in custody” and has been read the Miranda warnings.

Second, an interview-based standard will be simpler for police officers to employ, insofar as it does not require them to continually gauge the notoriously slippery status of whether the suspect has become “in custody,” and to ensure that a videotape recorder is turned on at that point (in addition to reading Miranda warnings). Instead, all formal “interviewing” of a crime suspect inside a police station would be recorded from its inception (either without the suspect’s having been informed about the recording, or, if the police prefer, after having told him or her that a recording is required).

Third, an interview-based standard will significantly reduce inefficient and time-consuming litigation regarding the police’s compliance with the recording requirement, because it will be far easier for litigants and courts – and for police officers – to assess when an “interview” with a crime suspect began than to determine the moment during a fast-developing interrogation that “custody” began and that a recording had to commence.

Importantly, it is common that a crime suspect arrives at a police station voluntarily in response to a request by the police, but then at some point during a formal interview, his or her status changes into being in custody . The legal concept of “custody” – which is a key requirement of “custodial interrogation” – is determined by evaluating whether, under the totality of the circumstances, a reasonable person innocent of any crime would not feel free to leave. The determination requires an assessment of several possible factors, including: the amount of time the person has spent with police; whether his or her freedom of action

153 See generally Miranda v. Arizona , 384 U.S. 436 (1966); Dickerson v. U.S. , 530 U.S. 428 (2000); California v. Beheler , 463 U.S. 1121 (1983); Rhode Island v. Innis , 446 U.S. 291 (1980); Michigan v. Mosley , 423 U.S. 96 (1975); Missouri v. Siebert , 542 U.S. 600 (2004); People v. White , 10 N.Y.3d 286 (2008); People v. Paulman , 5 N.Y.3d 122 (2005); People v. Bethea , 67 N.Y.2d 364 (1986); People v. Ferro , 63 N.Y.2d 316 (1985); People v. Huffman , 41 N.Y.2d 29 (1976); People v. Yukl , 25 N.Y.2d 585 (1969).

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has been restricted in any way; the location and atmosphere of the encounter; the person’s degree of cooperation with the police; and whether the questioning is investigatory or accusatory in nature. 154 Judges and lawyers often struggle mightily with the thorny question of whether a reasonable person in the defendant’s position when he or she made incriminating statements would have felt free to leave, especially when during an extended interrogation the defendant’s status subtly evolved from initially being “non-custodial” to ultimately being “custodial.”

Triggering the statutory videotaping requirement at the same point that the police must read a crime suspect the constitutional Miranda warnings ( i.e. , based upon the existence of “custodial interrogation”) is inherently problematic – especially because it does not require the officers to record the critical interactions in a formal interview that may have led up to and brought about the suspect’s incriminating admissions, which in themselves could be what caused him or her to become “in custody” and to be given Miranda warnings. 155 Similarly, it does not require any recording at all of formal interviews at a police station when the circumstances never rose to the high legal threshold of the suspect’s being “in custody” until after all of his or her incriminating statements (which may have been a false confession) were made.

It is difficult for police officers – interacting with a crime suspect whom they are trying to psychologically manage so as to keep him or her talking and potentially to obtain self-incriminating statements, and working under pressurized and fast- changing circumstances – to reliably discern the moment when “custody” has begun. Similar problems also arise in determining the other requirement of the “custodial interrogation” test: whether there has been “interrogation.” Specifically, the legal meaning of “interrogation” also includes “the functional equivalent of interrogation,” such that not only direct questioning by the police but also any conduct and remarks that are reasonably likely to prompt an incriminating statement from the defendant

154 See People v. Yukl , 25 N.Y.2d 585 (1969); People v. Centano , 76 N.Y.2d 837 (1990); People v. Morales , 65 N.Y.2d 997 (1985); California v. Beheler , 463 U.S. 1121 (1983); Stansbury v. California , 511 U.S. 318 (1994); Oregon v. Mathiason , 429 U.S. 492 (1977); Thompson v. Keohane , 516 U.S. 99 (1995). 155 See, e.g. , People v. Rivera , 7 A.D.3d 358 (1st Dept. 2004)(“the fact that a detective confronted defendant with purportedly incriminating evidence was not enough to transform the interview into a custodial interrogation. Once defendant acknowledged his presence at the time the victim was killed, the police promptly administered Miranda warnings before defendant made his first written statement”); People v. Hernandez , 25 A.D.3d 377 (1st Dept. 2006)(“At the time defendant made the second statement that he claims should have been preceded by Miranda warnings, he had been questioned for almost five hours. However, even an interview of extended duration at a police station is not necessarily a custodial interrogation”); People v. Colon , 54 A.D.3d 621 (1st Dept. 2008)(“The People established that the statements defendant made prior to Miranda warnings were not the product of custodial interrogation, because a reasonable innocent person in defendant’s position would not have thought he was in custody. Defendant voluntarily accompanied the police to the precinct, where he was expressly told he was not under arrest and was free to leave. Although he remained there over an extended period of time and was questioned with increasing intensity, he was never handcuffed or otherwise restrained, he was left alone and unguarded in an unlocked interview room for significant periods of time, and he was permitted to go to the bathroom unescorted. The fact that the police expressed skepticism about defendant’s story did not render the questioning custodial. Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue”); People v. Dillhunt , 41 A.D.3d 216 (1st Dept. 2007)(“The fact that the detective showed defendant a police report implicating him in the assault at issue did not, under all the circumstances, render the questioning custodial”); see also Missouri v. Siebert , 542 U.S. 600 (2004).

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constitute “interrogation” that may require the police to give Miranda warnings. 156 Quite simply, police investigators should not be saddled with an additional duty, not only to read Miranda warnings, but also to turn on a camera and move to a location where videotaping equipment can be activated, at the hard-to-ascertain moment that the crime suspect becomes “in custody” during an interrogation.

Other states’ recording requirements that link the police officers’ statutory duty to create a videotaped recording to their constitutional duty to administer Miranda warnings are problematic for all of these reasons.157 Especially because the underlying purposes of the recording duty and the Miranda duty are distinct, there is no logical reason for them to begin at the same moment. In particular, the Miranda rule is intended to help protect a defendant’s freedom to exercise the constitutional privilege against self-incrimination in the face of the pressures of “custodial interrogation.” The statutory videotaping requirement, by contrast, is intended to help deter police misconduct and to create a record for the jury of all the circumstances during formalized questioning that precipitated incriminating statements, even if those circumstances do not rise to the high legal threshold of placing the suspect “in custody” (as set forth in decisional law). It is paramount, therefore, that the key preliminary events, and not merely the events after the defendant has become “in custody,” should be recorded. An interview-based standard achieves that goal, but a “custodial interrogation”-based standard often does not.

This provision sets a practical and effective standard which will not unduly burden legitimate law enforcement practices. It triggers the recording obligation based upon the existence of three straightforward requirements: “interviewing” of a “suspect” inside a “police station or other facility of detention.” Each of these three concepts is unambiguous, transparent, and has a readily understood meaning that police officers automatically and immediately will know is either present or absent (unlike the changeable and slippery status of “custody”). The test thereby spares police officers the uncertain task of continually assessing the factors underlying the existence of “custody,” and makes it obvious to them when a recording must be made. Likewise, it will enable litigants and courts to more easily and efficiently determine whether the statutory requirement has been met.

First, an “interview” refers to any formal consultation or meeting at which information is obtained from a person by questioning. By definition, it excludes spontaneous statements made by a suspect outside the context of structured questioning. There is no need to explicitly state that limitation in the provision, because it is inherent in the requirement of “interviewing.” Moreover, an officer will reliably and immediately recognize when the “interview” has begun and when it has ended, since all questioning of the suspect that seeks to elicit substantive information regarding a crime will be considered part of the interview.

156 See Rhode Island v. Innis , 446 U.S. 291 (1980); People v. Ferro , 63 N.Y.2d 316 (1985); People v. Kollar , 305 A.D.2d 295 (1st Dept. 2003). 157 See, e.g. , N.C. Gen. Stat. §15A-211(c)(2)&(d)(requiring an uninterrupted electronic record of “an entire custodial interrogation” – but specifying that the necessary recording is merely one “that begins with and includes a law enforcement officer’s advice to the person in custody of that person’s constitutional rights”).

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Second, a “suspect” is a person considered to be a possible perpetrator of a crime under investigation. As with “interviewing,” an officer will reliably and immediately know when he or she considers a person to be a “suspect,” and it will be straightforward for litigants and courts to determine this requirement as well (based on an assessment of all the information known to the officer at the time of the interview).

Third, a “police station or other facility of detention” clearly refers to the interior of such buildings. It excludes police vehicles, which are not “facilities” whose purpose is “detention” but rather are employed for transportation. Besides police stations, other “facilities of detention” self-evidently include courthouses, jails, and similar buildings in which arrestees are confined in connection with pending or past criminal cases. Plainly the provision excludes statements made during interviews with suspects at other locations, such as outside a police station on the sidewalk, in a private dwelling, in a commercial establishment, in a police car, etc. In short, officers will reliably and immediately recognize when they are conducting an “interview” with a crime “suspect” at a “police station or other facility of detention,” and reviewing courts will also have little difficulty in determining when a recording was required. 158

Several other commonsense limitations which are explicitly referenced in the provision further restrict the scope of the recording obligation. The provision stipulates that: (1.) routine pedigree inquiry as part of arrest processing or simply to learn the person’s identity does not constitute “interviewing” that must be recorded; (2.) statements made in open court or before a grand jury need not be recorded; (3.) statements obtained in other jurisdictions or by federal agents need not be recorded under this provision; (4.) statements obtained in violation of the provision may still be used on cross-examination to impeach a testifying defendant, because the rule merely precludes them from being introduced “as substantive evidence”;159 (5.) although the “compete” interview must be recorded (because the jury should not have to rely merely on a recording of the defendant’s statements that are the final product of a prolonged earlier interrogation process, which is described to them only through the questioners’ partial and imperfect summaries of preceding events), brief periods of recess during an interview when the questioning has ceased are specifically excluded provided that the police have memorialized the starting time of such a recess and the resumption time of the interview in order to avert disputes about the interruptions; (6.) the police may choose whether or not they wish to inform a crime suspect that a videotaped recording is being made of the interview; and (7.) if the suspect is aware that the police intend to videotape the interview but he or she refuses to participate in it because it is being recorded, the police need only document that refusal on videotape and then they may proceed with an unrecorded interview (which

158 The provision does not require police officers to create a videotaped recording of interviews of crime suspects at other locations, such as in hospitals and private residences, because obligating the police to set up video cameras in these places or else to forego questioning of the suspect would unreasonably interfere with legitimate law enforcement. Of course, the police remain bound by constitutional rules governing “custodial interrogations” when questioning suspects at such locations, but the purpose of this provision is not to help enforce the police’s compliance with constitutional Miranda requirements. 159 Similarly, a defendant’s statements obtained in violation of the constitutional Miranda rules also may be used for impeachment, even though they may not be introduced as substantive evidence. See Harris v. New York , 401 U.S. 222 (1971); People v. Washington , 51 N.Y.2d 214 (1980).

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ensures that the court will have a visual record of the defendant’s refusal, so that it can determine whether it was unequivocal and voluntary under the same “beyond a reasonable doubt” standard of proof that applies to a court’s assessment of the voluntariness of a defendant’s statements generally).160

As in several other jurisdictions (including Alaska, Illinois, Minnesota, New Hampshire and Texas), an improper failure to record statements pursuant to the requirements of this provision requires their exclusion from evidence at trial. Juries and defendants should have the benefit of fully recorded stationhouse interviews, and the police should have a strong incentive to scrupulously obey this important and easily workable rule. Nevertheless, if the police subject a defendant to interviewing at a police station or other facility of detention in violation of this recording requirement, the prosecution will not be blocked from introducing all subsequent statements by the crime suspect. Instead, the police simply must conduct another, properly recorded, complete interview of the suspect. Then, upon that recording’s admission into evidence at trial, the court will have to instruct the jury (upon defense request) concerning the impropriety in failing to record the earlier statements, using specified language drawn from a Massachusetts jury instruction recently mentioned by the Court of Appeals.161 This evenhanded remedy appropriately balances the important underlying purposes that motivate a videotaping requirement with the state’s interest in being able to obtain and use incriminating statements from a crime suspect.

Finally, the provision extends the videotaping requirement to all types of cases, rather than distinguishing between misdemeanor and felony cases or between specific types of “serious” felony cases. This approach is also taken in Alaska, Massachusetts, Minnesota, New Hampshire and Texas. Not only the problems that this provision attempts to help rectify ( i.e. , false confessions and improper interrogation practices), but also the great advantages that it has for law enforcement (i.e. , creating an objective record of incriminating statements that will also avert disputes about police questioning), exist in all types of cases. Moreover, frequently the police will not know at the time they interview a crime suspect at a police station what exact charges will ultimately be brought ( i.e. , misdemeanors or felonies, or which specific felony), so a different rule inevitably would foster confusion and would lead to failures by the police to record interviews when the crime under investigation initially seemed less serious than it proved to be. In addition, comparatively few misdemeanor and lower-level felony cases involve interviews of a suspect at a police station or other facility of detention. And in any event, recording equipment is relatively inexpensive and all police stations would have to be equipped with the technology if any statutory recording requirement is enacted. For all of these reasons, the costs of creating a videotaping requirement applicable to all types of cases are not excessive. And an across-the-board recording requirement for

160 See People v. Huntley , 15 N.Y.2d 72, 78 (1965); People v. Yarter , 41 N.Y.2d 830 (1977); cf. People v. Love , 57 N.Y.2d 998 (1982); People v. Rosa , 65 N.Y.2d 380 (1985). 161 See Commonwealth v. DiGiambattista , 813 N.E.2d 516, 533-34 (Mass. 2004); see also People v. Combest , 4 N.Y.3d 341, n.5 (2005). Notably, conforming amendments to C.P.L. §710.20 should be made if this proposed Article 245 is enacted, to make explicit that a pre-trial hearing to determine the admissibility of a defendant’s statements (the so-called “ Huntley hearing”) would include when appropriate the court’s determination of whether the statements were obtained in conformity with this provision, or, if not, whether the statutory jury instruction would be needed as a remedy or sanction upon defense request at trial.

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“interviews” of all crime “suspects” that occur at a “police station or other facility of detention” is the appropriate rule.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the police are not required to videotape their questioning of suspects. See People v. Combest , 4 N.Y.3d 341, n.5 (2005).

(3.) 911 Telephone Call and Police Radio Transmission Electronic Recordings. (i) Whenever an electronic recording of a 911 telephone call or a police radio transmission was made in connection with the investigation of an apparent criminal incident, the arresting officer or lead detective shall expeditiously notify the prosecution in writing upon the filing of an accusatory instrument of the existence of all such known recordings. The prosecution shall expeditiously take whatever reasonable steps are necessary to ensure that all known electronic recordings of 911 telephone calls and police radio transmissions made in connection with the case are preserved throughout the pendency of the case. Upon the defendant’s timely request and designation of a specific electronic recording of a 911 telephone call, the prosecution shall also expeditiously take whatever reasonable steps are necessary to ensure that it is preserved throughout the pendency of the case. (ii) If the prosecution fails to disclose such an electronic recording to the defendant pursuant to subdivision (1)(g) of section 245.20 due to a failure to comply with this obligation by police officers or other law enforcement or prosecution personnel, the court upon motion of the defendant shall impose an appropriate remedy or sanction pursuant to section 245.85.

SOURCES OF PROPOSED C.P.L. §245.45(3): This provision is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.45(3): This provision requires law enforcement personnel to make prompt and reasonable efforts to preserve an important type of evidence that is routinely destroyed by some police departments after a specific period, unless steps are taken before then to safeguard it.

A recurring problem for many years has been that the tape-recordings of telephone calls to the 911 emergency response number and police radio transmission recordings – which frequently are critical evidence capturing the context and content of important witnesses’ original observations of the crime and of the perpetrator – are erased and unavailable to the parties at trial. For instance, the NYPD has for years employed a policy to destroy such recordings within ninety days unless a request to preserve them is received. Too frequently, the prosecution and/or the defense does not know of the existence of such recordings, or for other reasons fails to exercise appropriate diligence in taking the necessary steps to have them preserved. Yet such recordings may be highly valuable evidence for both the prosecution and the defense.

New York courts often have confronted this chronic problem. They have recognized that it frequently undermines the jury’s opportunity to fully and fairly evaluate key facts, impairs the defendant’s ability to present a defense, and results in inefficient litigation. For example, in one stinging decision the court summarized the events as follows:

“The People’s failure to exercise due care to preserve the master tapes of the radio communications is inexcusable. According to the People’s own witness, a

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Police Department communication technician from the Records and Tape Unit, these master tapes, which contain the entire contents of all 911 calls and radio communications to Central, are routinely destroyed ninety days after an occurrence. The only records which are maintained permanently are the Sprint reports, which are entered into a computer by a 911 operator or dispatcher and eventually stored on microfilm. According to the witness, these Sprint reports do not, however, contain a verbatim account of the transmission. Rather, they consist of a summary of the contents of the transmission based upon the dispatcher’s interpretation of the pertinent information. Thus, since these Sprint reports are not an identical transcription of the radio transmissions, they cannot be considered the duplicative equivalent of the actual recorded transmission by the officer in the field. The People’s own evidence establishes that the extant Police Department policy of routinely destroying the master tape of all communications within ninety days is inconsistent with the People’s obligation to preserve Rosario material for use at trial. This procedure constitutes not merely inadvertent loss or destruction of Rosario material, but institutionalized, purposeful destruction without any regard to the potential need for its availability in a pending or future prosecution. This Court finds this practice to be a willful thwarting of the discovery rules and a direct affront to the principles underlying the Rosario rule.”162

Even though digital technology now is used to record 911 calls and police radio transmissions (which allows for their easier retrieval and makes the process of saving and disclosing them far easier than it had been previously), the problem of wantonly destroyed recordings persists. It commonly undermines the fairness and reliability of hearings and trials, because when a recording is not timely preserved, the parties at most are left with the so-called “Sprint” summary of a 911 call, which is an incomplete and inadequate written summary of only the parts of the call that the operator was able to quickly summarize or deemed worthy of writing down. Furthermore, decisional law has effectively blocked the defendant from subpoenaing such recordings from the police. 163 This barrier to discovery is especially problematic when the defendant or a potential defense witness telephoned the 911 emergency response number and made relevant statements that may support the defense. The defendant should have a mechanism to ensure that such recordings are preserved and can be obtained.

162 See People v. Bramble , 158 Misc.2d 411, 417-18 (Sup. Ct., Kings Co. 1993), aff’d , 207 A.D.2d 407 (2d Dept. 1994); see also, e.g. , People v. Bagley , 183 Misc.2d 523, 525-26 (Sup. Ct., N.Y. Co. 1999)(“Anyone familiar with daily practice in Criminal Term has seen frequent occasions when materials are lost, destroyed or inadequately preserved or otherwise not produced at trial. As just one, but common, example, it is well known that ‘911’ tapes are overwritten after a short period of time, usually ninety days. On too many occasions, this Court and others have been asked to accept a computerized ‘Sprint’ summary in lieu of the lost tape”), rev’d on other grounds , 279 A.D.2d 426 (1st Dept. 2001); People v. Burch , 247 A.D.2d 546, 547 (2d Dept. 1998) (“Where the 911 tape was destroyed and was thus no longer available for judicial inspection, it cannot be deemed the ‘duplicative equivalent’ of the so-called ‘Sprint report’”); People v. Gillard , 215 A.D.2d 216 (1st Dept. 1995); People v. Brock , 293 A.D.2d 294 (1st Dept. 2002); People v. Deery , 165 Misc.2d 319 (Crim. Ct., Bronx Co. 1995); People v. Schlegel , 4 Misc.3d 1024A (Justice Ct., Monroe Co. 2004). 163 See C.P.L. §610.20(3); C.P.L.R §2307; Matter of Constantine v. Leto , 77 N.Y.2d 975 (1991), aff’g, 157 A.D.2d 376 (3rd Dept. 1990); People v. Bagley, 279 A.D.2d 426 (1st Dept. 2001); see also People v. Gissendanner , 48 N.Y.2d 543 (1979); Matter of Terry D. , 81 N.Y.2d 1042 (1993).

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This provision addresses the problem in three ways. By helping to ensure the preservation of important recorded evidence, it will be valuable not only to the defense but also to the prosecution. First, it requires the arresting officer or lead detective promptly to notify the prosecution in writing (at the time the accusatory instrument is filed) about the existence of all known recordings of 911 telephone calls or police radio transmissions made in connection with the investigation. Second, it requires the prosecution to take whatever reasonable measures are necessary to ensure that the known 911 telephone call and police radio transmission recordings are not automatically destroyed, pursuant to a police department’s general destruction rules. Third, it requires the prosecution, upon timely notice from the defendant specifying a 911 call, to take reasonable steps to preserve the recording of that call.

Already police departments put the onus on a designated arresting officer to keep track of all paperwork and evidence in the case, unless and until a detective takes over that responsibility. That officer will be aware of how the police became involved in the investigation and of most 911 calls and/or radio transmissions made during the investigation that would have been automatically recorded. He or she can, therefore, easily provide the prosecution with a written notification of the existence of this important type of evidence when known, and, thus, of the need to take appropriate steps to safeguard it. The written record will serve as both a tangible notice to the prosecution and as documentary proof of compliance with this provision. The provision also establishes that, if such a recording is not provided to the defendant pursuant to subdivision (1)(g) of section 245.20 due to a violation of these requirements by the police or the prosecution, the court will impose an appropriate remedy or sanction upon request under section 245.85.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the prosecution must disclose, fifteen days after receiving a written “demand” from the defendant, “any tapes or other electronic recordings which the prosecution intends to introduce at trial.” See C.P.L. §240.20(1)(g). The prosecution also must disclose recorded statements made by its testifying witnesses, but it need not do so until the time of a hearing or a trial. See C.P.L. §§240.44(1), 240.45(1)(a). The defendant may obtain recordings from the Police Department by subpoena under strictly limited circumstances. See C.P.L. §610.20(3); C.P.L.R §2307; Matter of Constantine v. Leto , 77 N.Y.2d 975 (1991), aff’g, 157 A.D.2d 376 (3rd Dept. 1990); People v. Bagley , 279 A.D.2d 426 (1st Dept. 2001); see also People v. Gissendanner , 48 N.Y.2d 543 (1979); Matter of Terry D. , 81 N.Y.2d 1042 (1993).

245.50. Certificates of Compliance

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participated in investigating or evaluating the case; and (ii) he or she has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any evidence or information within subdivision (1)(j) of section 245.20, including such evidence or information that was not reduced to writing or otherwise memorialized or preserved as evidence, and has disclosed any such information to the defendant. If additional discovery is subsequently provided pursuant to section 245.60, a supplemental certificate shall be filed with the court and served upon the defendant identifying the additional material and information provided.

SOURCES OF PROPOSED C.P.L. §245.50(1): The first two sentences and the fourth sentence of this provision are modified from Mass. R. Crim. P. 14(a)(3). The third sentence is not based on a specific statute from another state.

COMMENTARY ON PROPOSED C.P.L. §245.50(1): This provision requires the prosecution to file and serve a written certification that, to the best of the prosecutor’s knowledge, he or she has provided all of the required discovery; and, in particular, that he or she has sought all discoverable materials from the police and that has asked the police about potentially exculpatory information, including materials that were not memorialized or gathered. States and courts that require the lawyers to submit formal certificates of compliance upon completion of their discovery obligations have concluded that a duty personally to complete a certification instills formality and personal responsibility into the discovery process, and thereby fosters compliance with the rules. The provision does not prevent a prosecutor from reasonably delegating such inquiries to accountable personnel.

Because the prosecutor will file his or her certificate with the court and serve it on the defense upon performing the initial discovery obligations, another benefit of the procedure is that the document functions as an unmistakable event in the case that triggers the thirty-day period within which the defendant must comply with his or her reciprocal discovery duties, pursuant to subdivision three (3) of section 245.20. The requirement to list all disclosed items also helps to minimize disputes and litigation concerning the discovery process.

Widespread failures by prosecutors to obtain discoverable materials and to keep them in their case-files for disclosure to the defendant – and pervasive failures by prosecutors to ask police officers about the existence of exculpatory information – commonly foil disclosures to the defense (even if the prosecutor voluntarily provides “open file” discovery). 164 The certification requirement in this provision will help to

164 See, e.g. , New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006), p. 24 (advocating that “a more coordinated internal mechanism to facilitate agency disclosure to the prosecutors’ offices be instituted,” and noting that “delayed disclosure in all boroughs [of New York City] is, in part, attributable to the untimely receipt of materials by the prosecution from the Police Department and other agencies”); “Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), pp. 109-110 [Executive Summary, pp. 23-24] (discussing widespread problems in the transmission of materials from the police to the prosecution); Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 596-97 (2006); Stanley Z. Fisher, “‘Just the Facts Ma’am’: Lying and the Omission of Exculpatory Evidence in Police Reports,” 28 New Eng. L. Rev. 1 (1993); Stanley Z. Fisher, “The Prosecutor’s Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons From England,” 68 Fordham L. Rev. 1379, 1436 (2000); see generally Strickler v. Greene , 527 U.S. 263, 275 (1999)(the defense 112 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

address these serious problems. A similar provision in the Massachusetts rules requires prosecutors to certify that they have provided all discoverable items. This provision goes further by also requiring prosecutors to certify specifically regarding the two main problems described above. Notably, a least two federal courts have adopted written Certificate of Compliance requirements for prosecutors that specify that, in particular, they have disclosed exculpatory evidence.165

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no requirement that the prosecutor certify that he or she has complied with the prosecution’s discovery obligations.

SOURCES OF PROPOSED C.P.L. §245.50(2): This provision is modified from Mass. R. Crim. P. 14(a)(3).

COMMENTARY ON PROPOSED C.P.L. §245.50(2): This provision requires the defense lawyer to file and serve a Certificate of Compliance that corresponds to the prosecutor’s certificate under subdivision one (1) of this section. But obviously the defense would not be required to certify concerning materials possessed by law never received exculpatory evidence despite an “open file” discovery agreement because the documents were not contained in the prosecutor’s case file); U.S. v. Rodriguez , 496 F.3d 221, 225 n.3 (2d Cir. 2007)(it is an open question of constitutional law “whether, in some cases, the preservation of exculpatory or impeaching information in a concrete form – such as by note taking – may be necessary to ensure that the information can be relayed accurately to the defense”). 165 See Federal Judicial Center, “ Brady v. Maryland Material in the United States District Courts: Rules, Orders, and Policies” (2007), pp. 8, 18-19, available at www.uscourts.gov/rules/BradyFinal2007 ; see also American College of Trial Lawyers, “Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16,” 41 Am. Crim. L. Rev. 93, 111 (2004)(recommending a Certificate of Compliance provision that states: “a) the government attorney has exercised due diligence in locating all information favorable to the defendant within the files or knowledge of the government; b) the government has disclosed and provided to the defendant all such information; and c) the government acknowledges its continuing obligation, until final judgment is entered, to: i) disclose such information; and ii) to furnish any additional information favorable to the defendant immediately upon such information being known”); The Justice Project, “Expanded Discovery in Criminal Cases: A Policy Review” (2007), p. 22 [Model Discovery Bill §IV (F)] (recommending that the prosecution’s Certification of Compliance “also contain a written statement from a designated lead investigator from each law enforcement agency involved in the investigation of the offense charged that confirms that the agency has given to the prosecution all information that, if known to the prosecution, would be discoverable”); see generally Kyles v. Whitley , 514 U.S. 419, 438 (1995)(“any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government’s obligation to ensure fair trials”).

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enforcement. As with the prosecutor’s Certificate of Compliance, it is intended to instill formality and personal responsibility into the reciprocal discovery process, and thereby to foster compliance with the rules.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no requirement that the defense lawyer certify that he or she has complied with the defendant’s reciprocal discovery obligations.

245.55. Flow of Information

(1.) Sufficient Communication for Compliance. The prosecutor shall ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense(s) charged, including any evidence or information which tends to negate the defendant’s guilt or to mitigate the defendant’s culpability as to a charged offense, or which tends to support a potential defense thereto, or which tends to provide a basis for a motion to suppress evidence on constitutional grounds, or which would tend to reduce the punishment of the defendant.

SOURCES OF PROPOSED C.P.L. §245.55(1): This provision is modified from Colo. R. Crim. P. 16 Part I (b)(4).

COMMENTARY ON PROPOSED C.P.L. §245.55(1): This provision requires the prosecution to ensure that an adequate flow of information is maintained between law enforcement agencies and the prosecution to make available all discoverable materials for disclosure to the defendant. It will help to address the chronic problem of widespread failures by the police to provide various types of discoverable materials to the prosecution, especially potentially exculpatory evidence and information (as discussed in the Commentaries to section 245.50[1] and subdivision [1][j] of section 245.20).166 It is modeled on the Colorado rule, but highlights in addition that adequate lines of communication must be implemented to ensure that all potentially exculpatory evidence will be provided by the police to the prosecution.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no statutory provision that specifically directs the prosecution to ensure that an adequate flow of information is maintained between the police and the prosecution to ensure that all discoverable materials are made available to the defendant. Cf. Kyles v. Whitley , 514 U.S. 419, 438 (1995)(“any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government’s obligation to ensure fair trials”).

166 See, e.g. , New York County Lawyers’ Association, “Discovery in New York Criminal Courts: Survey Report and Recommendations” (2006), p. 3 (“untimely disclosure in some boroughs [of New York City], even those with open file discovery policies, may be the result of a lack of institutional mechanisms to foster transmittal of materials from the police and other agencies in possession of the materials. Accordingly, the Task Force recommends that internal policies be reviewed and developed, including the possibility of electronic discovery transmittal”).

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SOURCES OF PROPOSED C.P.L. §245.55(2): This provision is modified from N.C. Gen. Stat. §15A-903(3)(c).

COMMENTARY ON PROPOSED C.P.L. §245.55(2): This provision directs all New York State law enforcement agencies to comply with a request by the prosecution to make available a complete copy of their complete files related to the investigation of a case. A similar requirement rule exists in North Carolina. The provision helps ensure that prosecutors who exercise due diligence in trying to obtain all discoverable materials will receive cooperation and compliance in information- sharing from law enforcement agencies and personnel. It will help address the problem of failures by the police to provide discoverable materials to the prosecution for disclosure to the defendant (as discussed in the Commentaries to section 245.50[1] and subdivision [1][j] of section 245.20).

PERTINENT CURRENT NEW YORK LAW: Under current New York law, discoverable evidence and information within the possession or control of the police is deemed to be within the prosecution’s possession, custody and control. See People v. Rosario , 9 N.Y.2d 286 (1961); People v. Washington , 86 N.Y.2d 189 (1995); People v. Santorelli , 95 N.Y.2d 412 (2000); People v. Simmons , 36 N.Y.2d 126 (1975); see also Kyles v. Whitley , 514 U.S. 419, 437-38 (1995)(“the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case”). But there is no statutory provision that specifically directs all New York State law enforcement agencies to provide the prosecution with a complete copy of their complete files related to a case upon request.

245.60. Continuing Duty to Disclose

SOURCES OF PROPOSED C.P.L. §245.60: This provision is modified from Mass. R. Crim. P. 14(a)(4); see also C.P.L. §240.60. The second sentence of this provision is not based on a specific state statute.

COMMENTARY ON PROPOSED C.P.L. §245.60: This provision maintains current law that requires both parties to promptly disclose all discoverable evidence

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or information that is acquired after the general deadlines for providing discovery.167 It also specifically reminds prosecutors that materials received from the defense as reciprocal discovery may render other information that previously did not appear to be pertinent or discoverable subject to immediate disclosure.168

In particular, frequently the prosecutor will not know the content or context of the defense theory of the case at the time that he or she must make initial disclosures pursuant to subdivision one (1) of section 245.10. Thus, it may be difficult or impossible to recognize all of the potentially discoverable items and information that “relate to the subject matter of the case or are otherwise relevant” (or that “tend to support a potential defense” to a charged offense, as specified in subdivision [1][j] of section 245.20), and therefore must be turned over. Similarly, the defendant’s reciprocal discovery materials may introduce a new issue into the case or place the case in different light, and often the prosecutor will be prompted to obtain additional evidence that will then have to be disclosed (including expert opinion testimony addressing the defendant’s prospective evidence).

Furthermore, the defendant’s reciprocal discovery under subdivision three (3) of section 245.20 is restricted to materials that the defendant intends to introduce at trial. Based on further factual investigation or refinements of the defense theory for many legitimate reasons, the defendant will sometimes decide to offer evidence or call a witness only after the thirty-day deadline for providing reciprocal discovery. This provision requires the defense to notify the prosecution expeditiously of any additional evidence or witnesses which it would have been under a duty to disclose had it intended to offer them at the time of the general deadline for providing reciprocal discovery. The court has the authority to impose an appropriate remedy or sanction against either party for a violation of the continuing duty to disclose, pursuant to section 245.85.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, “[i]f, after complying with the provisions of [Article 240] or an order pursuant thereto, a party finds, either before or during trial, additional material subject to discovery or covered by such order, he shall promptly comply with the demand or order, refuse to comply with the demand where refusal is authorized, or apply for a protective order.” See C.P.L. §240.60; see also Pennsylvania v. Ritchie , 480 U.S. 39, 60 (1987)(“The duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress”).

245.65. Work Product

167 See C.P.L. §240.60. 168 See Pennsylvania v. Ritchie , 480 U.S. 39, 60 (1987)(“The duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress”); Leka v. Portuondo , 257 F.3d 89 (2d Cir. 2001).

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or the attorney’s agents, or of statements of a defendant, written or recorded or summarized in any writing or recording, made to the attorney for the defendant or the attorney’s agents.

SOURCES OF PROPOSED C.P.L. §245.65: This provision is modified from Mass. R. Crim. P. 14(a)(5).

COMMENTARY ON PROPOSED C.P.L. §245.65: This provision maintains current New York law by exempting from discovery portions of documents that contain only opinions, theories, or conclusions of the party or its legal staff. It also includes opinions, theories, or conclusions of agents such as private investigators, since as the Supreme Court has recognized: “attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial,” and “[i]t is therefore necessary that the [work product] doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” 169 Following the “work product” privilege provisions used in other states, it also adds “legal research” to the list of “opinions, theories or conclusions” specified in C.P.L. §240.10(2). In addition, it follows the provisions of other states and specifies that a defendant’s statements to defense counsel or to defense personnel are exempted from discovery, which comports with the defendant’s Fifth Amendment privilege against self-incrimination.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, material is protected from discovery as attorneys’ work product “to the extent that it contains the opinions, theories or conclusions of the prosecutor, defense counsel or members of their legal staffs.” See C.P.L. §240.10(2); see also C.P.L.R. §3101(c), (d); People v. Kozlowski , 11 N.Y.3d 223, 243-49 (2008); People v. Consolazio , 40 N.Y.2d 446, 453 (1976)(the mere fact that a witness’s statement was transcribed by an attorney is not sufficient to render it “work product”); People v. Banch , 80 N.Y.2d 610, 620 (1992); U.S. v. Nobles , 422 U.S. 225, 238-39 (1975); Hickman v. Taylor , 329 U.S. 495, 510-11 (1947).

245.70. Protective Orders

169 See U.S. v. Nobles , 422 U.S. 225, 238-39 (1975)(“Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case. At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself”).

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a protective order under this section, or another affected person, to submit papers or testify ex parte or in camera. Any such papers and a transcript of such testimony shall be sealed and shall constitute a part of the record on appeal.

SOURCES OF PROPOSED C.P.L. §245.70: The first three sentences of this provision are modified from Mass. R. Crim. P. 14(a)(6); see also C.P.L. §§240.50(1), (2). The fourth and fifth sentences of this provision are modified from C.P.L. §240.90(3).

COMMENTARY ON PROPOSED C.P.L. §245.70: This provision maintains current law by permitting the court at any point for good cause shown to deny, restrict, condition or defer discovery, or to make other appropriate orders regarding discovery.170

Under subdivisions one (1) and three (3) of section 245.10 and subdivision four (4) of section 245.20, the parties may withhold or redact any discoverable information when they believe that good cause exists for declining to make a required disclosure, and they must then apply for a protective order from the court. Production of the item is stayed pending the court’s ruling on the application for a protective order. When parts of material or information are discoverable but a party believes that proper grounds exist for a protective order as to other parts , the discoverable parts must be disclosed and the nondiscoverable parts may be withheld until the court rules on the application for a protective order (as required under subdivision four [4] of section 245.20). The party seeking a protective order must provide written notice to the party presumptively entitled to disclosure when it has withheld evidence or information under a particular section, so that the opponent is not misled about the disclosed materials and can raise any appropriate arguments concerning the application for a protective order.

The provision specifies the court’s option to order (in appropriate circumstances) that materials be disclosed on condition that they be available only to defense counsel and not shared with the defendant or anyone else. This restriction may be appropriate, for example, when necessary to enable defense counsel to undertake an adequate investigation despite the prosecutor’s having shown good cause to believe the defendant poses a threat to witnesses or to other evidence if he or she learns the information needed for the investigation. The provision also maintains current law by permitting any party or other affected person opposed to a protective order to submit papers or to testify outside the presence of the other parties and in chambers when appropriate. It requires that such papers and a transcript of such testimony be sealed and made available in the event of appellate review.171

170 See People v. Frost , 100 N.Y.2d 129 (2003); People v. Andre W. , 44 N.Y.2d 179 (1978). 171 Notably, although the 2008 report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge suggests important amendments to Article 240, it inadvisably requires the defendant to move for judicial review of whether it was permissible for the prosecutor to have withheld or redacted presumptively discoverable information. Moreover, the Advisory Committee’s proposal merely states that the court “may” order disclosure of withheld/redacted information (not that it “must” do so) if the prosecutor fails to demonstrate in response to the defendant’s motion that disclosure “could” interfere with an ongoing investigation or that there is some other “need” for a protective order (not that the prosecutor is required to demonstrate good cause for a protective order). Finally, the proposal explicitly allows a prosecutor 118 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the court may, upon motion of either party or on its own motion, issue a protective order for good cause that denies, limits, conditions, delays or regulates discovery. See C.P.L. §240.50(1). In particular, a protective order may require that material “be maintained in the exclusive possession of the attorney for the discovering party and be used for the exclusive purpose of preparing for the defense or prosecution of the criminal action.” See C.P.L. §240.50(2).

A party withholding or redacting discoverable information that was the subject of a “demand” by the opposing party must serve and file a written “refusal of demand” that “briefly” sets forth the grounds of the refusal “as fully as possible, consistent with the objective of the refusal.” See C.P.L. §240.35. When the interests of justice require, the court may permit any party or another affected person to submit papers or to testify in chambers without the other party present, and those papers and a transcript of such testimony will be sealed and made available in the event of appellate review. See C.P.L. §240.90(3); see also People v. Frost , 100 N.Y.2d 129, 134 (2003)(noting that ex parte proceedings may not be held routinely and that it is the “better practice” to permit the defense lawyer to participate); People v. Liberatore , 79 N.Y.2d 208, 215 (1992)(“where the defendant’s guilt or innocence is at issue, disclosure of the informant’s identity should not be resolved in an ex parte proceeding”).

245.75. Amendment of Discovery Orders

Upon motion of either party made subsequent to an order of the court issued pursuant to this article, the court may alter or amend the previous order or orders as the interests of justice may require. The court may, for good cause shown, affirm a prior order issued or imposed pursuant to this article granting discovery to a defendant upon the additional condition that the material or information to be discovered be available only to counsel for the defendant. The court may alter the times for compliance with any discovery order issued or imposed pursuant to this article upon a showing of good cause.

SOURCES OF PROPOSED C.P.L. §245.75: The first two sentence of this provision are modified from Mass. R. Crim. P. 14(a)(7). The third sentence of this provision is modified from Fla. R. C.P. 3.220(k).

COMMENTARY ON PROPOSED C.P.L. §245.75: This provision allows either party to move to amend a previous discovery order, and it permits the court to make such amendments to a previous discovery order as the interests of justice require. For good cause shown, the court may alter both the extent of discovery and the time to redact “the name, address, or any other information that serves to identify with particularity a person supplying information” regarding the case, except for names and addresses that already have been disclosed and names and business addresses of non-undercover police officers. See “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. 13-14 (proposed language for C.P.L. §240.21[2], [3], [4]); see also id. at 17-18 (proposed revision of C.P.L. §240.40[1]). Instead, as under proposed Article 245, the party withholding or redacting discoverable information should have the obligation to move for a protective order when appropriate based upon a showing of good cause (as in states such as Massachusetts and New Jersey). The party also should have a duty to notify the opposing party whenever it is withholding/redacting information (as in Massachusetts).

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period for disclosure. Moreover, in appropriate circumstances, specific discoverable materials may be ordered disclosed on condition that they be available only to counsel for the defendant and not shared with the defendant or anyone else. This restriction may be appropriate, for example, when necessary to enable defense counsel to undertake an adequate investigation despite the prosecutor’s having shown good cause to believe the defendant poses a threat to witnesses or to other evidence if he or she learns the information needed for the investigation. The provision recognizes the court’s role in overseeing the fairness of all aspects of discovery under this article and the need for flexibility in the process.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, the court has the authority, upon motion of either party or any affected person or on its own initiative, to issue a protective order limiting, conditioning, delaying, or regulating discovery for good cause. See C.P.L. §240.50(1); see, e.g., People v. Frost , 100 N.Y.2d 129 (2003). A protective order may require that disclosed materials “be maintained in the exclusive possession of the attorney for the discovering party and be used for the exclusive purpose of preparing for the defense or prosecution of the criminal action.” See C.P.L. §240.50(2).

245.80. Waiver of Discovery by Defendant

SOURCES OF PROPOSED C.P.L. §245.80: This provision is modified from N.J. CT. R. 3:13-3(b).

COMMENTARY ON PROPOSED C.P.L. §245.80: This provision gives the defendant the option to forego all of the benefits of receiving discovery pursuant to section 245.20, in exchange for not having to provide the prosecution with reciprocal discovery pursuant to that section. The New Jersey discovery rules give defendants a similar option.

The reciprocal discovery obligations under subdivision three (3) of section 245.20 and section 245.60 are greatly expanded from current New York law. For the first time defendants would be obligated to disclose to the prosecution early in the case: the names and addresses of intended defense witnesses; the written and recorded statements of intended defense witnesses; intended exhibits; and various other evidence and information that need not be promptly disclosed, or turned over at all, under current New York law. While expanded and earlier reciprocal discovery enhances openness and fairness, undeniably it also creates serious difficulties and burdens for accused defendants. In particular, defendants normally do not have 120 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

comparable resources and time for investigation and case-planning as compared with the prosecution – which can fully investigate and evaluate its case before even filing the criminal charges. (The key structural differences between the prosecution and the defense that bear on the discovery process are discussed in the Commentary to subdivision three [3] of section 245.20.) Accordingly, this provision provides important flexibility to the defendant, without unduly inconveniencing the prosecution.

Before receiving discovery materials from the prosecution, the defendant must expeditiously notify the prosecution and the court of a waiver of discovery under this subdivision. This ensures that defendants will not receive any unfair benefits from one-way discovery, and it avoids inconvenience to the prosecution (such as from needlessly having to assemble and copy discoverable materials). To avoid potential disputes, the defendant’s waiver must be in writing. Finally, the provision specifies that a defendant cannot use this subdivision to avoid having to provide notice of his or her intention to introduce psychiatric evidence – or to raise an alibi defense, or certain defenses to computer crimes – as required under Article 250. Likewise, a defendant cannot use this section to avoid having to provide non- testimonial evidence pursuant to section 245.40. A waiver of statutory discovery under this subdivision would not, however, alter the defendant’s constitutional right to discovery of “materially exculpatory” evidence under due process decisions stemming from Brady v. Maryland , 373 U.S. 83 (1963).

PERTINENT CURRENT NEW YORK LAW: Under current New York law, if a defendant does not file a timely written “demand” to receive discovery from the prosecution, he or she will forego the benefits of statutory discovery (but apparently the prosecution still could obtain reciprocal discovery from the defendant). See C.P.L. §§240.20(1), 240.30(1). Constitutional due process forbids a state from requiring types of discovery from a defendant that are not also available to the defendant from the state. See Wardius v. Oregon , 412 U.S. 470, 475 (1973)(“The State may not insist that trials be run as a ‘search for the truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses”).

245.85. Remedies or Sanctions for Noncompliance

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SOURCES OF PROPOSED C.P.L. §245.85(1): This provision is modified from Mass. R. Crim. P. 14(c)(1); see also C.P.L. §240.70(1).

COMMENTARY ON PROPOSED C.P.L. §245.85(1): This provision maintains current law that vests the court – in its role of overseeing the fairness of both parties’ compliance with the discovery rules – with authority to impose an appropriate remedy or sanction for a discovery violation by either party.172 It describes these actions as being either “remedies” or “sanctions” (not merely “sanctions”), because frequently the court’s response to a discovery violation primarily is intended to try to eliminate prejudice to the party entitled to full and timely discovery, rather than to punish and “sanction” the party that violated the rules.

For the convenience of litigants and the courts, the provision itemizes all of the types of remedies and sanctions that have been recognized and approved by the appellate courts in various situations, and which may be appropriate depending on the particular circumstances. This list of possible remedies and sanctions supplements those mentioned in C.P.L. §240.70(1). Specifically, courts have endorsed these remedies and sanctions depending on the circumstances of the discovery violation: ordering that a hearing be reopened; 173 ordering that a witness be called or recalled;174 instructing the jury that it may draw an adverse inference regarding the noncompliance with the discovery rules;175 precluding or striking a witness’s testimony, or a portion of a witness’s testimony; 176 admitting or excluding evidence; 177 ordering a mistrial; 178 or ordering the dismissal of all or some of the charges. 179

172 See, e.g. , People v. Williams , 7 N.Y.3d 15, 19 (2006)(“It is for the trial court, in the exercise of its discretion, to choose a remedy for [discovery] errors”); see also People v. Kelly , 62 N.Y.2d 516, 520-21 (1984)(“the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society”). 173 See, e.g. , People v. Banch , 80 N.Y.2d 610 (1992); see also C.P.L. §240.75. 174 See, e.g. , People v. Feerick , 93 N.Y.2d 433 (1999); People v. Smith , 63 N.Y.2d 41, 68 (1984); cf. People v. Goins , 73 N.Y.2d 989 (1989); People v. Janota , 181 A.D.2d 932 (3rd Dept. 1992). 175 See, e.g. , People v. Martinez , 71 N.Y.2d 937 (1988); People v. Kelly , 62 N.Y.2d 516 (1984); see also People v. Williams, 50 A.D.3d 1177 (3rd Dept. 2008). 176 See, e.g. , People v. Torres , 190 A.D.2d 52 (3rd Dept. 1993); People v. Cruz , 172 A.D.2d 365 (1st Dept. 1991); People v. Bramble , 207 A.D.2d 407 (2d Dept. 1994); People v. Gillard , 215 A.D.2d 216 (1st Dept. 1995); People v. Rodriguez , 281 A.D.2d 644 (1st Dept. 2001); see also People v. Williams , 50 A.D.3d 1177 (3rd Dept. 2008). 177 See, e.g. , People v. Jones , 238 A.D.2d 153 (1st Dept. 1997); People v. Rodriguez , 281 A.D.2d 644 (2d Dept. 2001); People v. Fields , 258 A.D.2d 809 (3rd Dept. 1999); People v. Jackson , 264 A.D.2d 683 (1st Dept. 1999); People v. Roberts , 203 A.D.2d 600 (2d Dept. 1994). 178 See, e.g. , People v. Mitchell , 14 A.D.3d 579 (2d Dept. 2005); see also People v. Thompson , 71 N.Y.2d 918 (1988); People v. Perez , 65 N.Y.2d 154 (1985); People v. Goins , 73 N.Y.2d 989 (1989). 179 See, e.g. , People v. Springer , 122 A.D.2d 87 (2d Dept. 1986); People v. Terrell , 185 A.D.2d 906 (2d Dept. 1992); People v. Pantino , 106 A.D.2d 412 (2d Dept. 1984); People v. Saddy , 84 A.D.2d 175 (2d Dept. 1981); see also People v. Kelly , 62 N.Y.2d 516, 521 (1984)(“as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence”).

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Finally, the provision includes a specific reminder for litigants and courts that any sanction imposed against the defendant must comport with the defendant’s constitutional right to present a defense, the violation of which will result in a reversal of the defendant’s conviction on appeal.180 It further specifies that the most drastic sanction available against a defendant – precluding a defense witness from giving relevant testimony – is appropriate only in egregious circumstances, such as when the defense lawyer and/or the defendant have willfully violated the discovery rules or colluded to gain a tactical advantage. Using language drawn from decisional law, it states that a court should exclude a defense witness as a sanction only when the failure to comply with the discovery rules “was willful and motivated by a desire to obtain a tactical advantage.” 181

PERTINENT CURRENT NEW YORK LAW: Under current New York law, “[i]f, during the course of discovery proceedings, the court finds that a party has failed to comply with any of the provisions of [Article 240], the court may order such party to permit discovery of the property not previously disclosed, grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action.” See C.P.L. §240.70(1).

180 See generally People v. Berk, 88 N.Y.2d 257, 265-66 (1996)(“Exclusion of relevant and probative testimony as a sanction for a defendant’s failure to comply with a statutory notice requirement implicates a defendant’s constitutional right to present witnesses in his own defense. In making its determination, the trial court must therefore weigh this right against the resultant prejudice to the People from the belated notice”); Washington v. Texas , 388 U.S. 14, 19 (1967)(“Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law”); Crane v. Kentucky , 476 U.S. 683, 690 (1986)(“the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense”); see also Taylor v. Illinois , 484 U.S. 400, 414-15 (1988); Noble v. Kelly , 246 F.3d 93, 98- 100 & n.3 (2d Cir. 2001); Escalera v. Coombe , 852 F.2d 45, 48 (2d Cir. 1988); People v. Cruz , 50 A.D.3d 490 (1st Dept. 2009); People v. Ashley , 44 A.D.3d 536 (1st Dept. 2007); People v. Gracius , 6 A.D.3d 222 (1st Dept. 2004); People v. Downey , 4 A.D.3d 233 (1st Dept. 2004); People v. Brown , 274 A.D.2d 609 (3rd Dept. 2000). 181 See generally Taylor v. Illinois , 484 U.S. 400, 414-15 (1988)(willful misconduct by an attorney may permissibly be imputed to the defendant); Noble v. Kelly , 246 F.3d 93, 98-100 & n.3 (2d Cir. 2001)(“where prejudice to the prosecution can be minimized with relative ease, a trial court’s exclusion of alibi testimony must be supported by a finding of some degree of willfulness in defense counsel’s violation of the applicable discovery rules”); Escalera v. Coombe , 852 F.2d 45, 48 (2d Cir. 1988)(“a decision on the preclusion of defense testimony must be governed by an inquiry in each case into the defense attorney’s justifications for his or her failure to comply with applicable rules. If the attorney’s explanation reveals that the failure was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the proffered witnesses’ testimony”); People v. Brown , 274 A.D.2d 609, 610 (3rd Dept. 2000)(“while the sanction may include precluding the witness from testifying, such sanction clearly is the most drastic available and would be appropriate only in the most egregious circumstances, such as upon a finding of collusion between defense counsel and the witness to gain some tactical advantage”); see also People v. Berk , 88 N.Y.2d 257, 265-66 (1996); People v. Cruz , 50 A.D.3d 490 (1st Dept. 2009); People v. Ashley , 44 A.D.3d 536 (1st Dept. 2007); People v. Gracius , 6 A.D.3d 222 (1st Dept. 2004); People v. Downey , 4 A.D.3d 233 (1st Dept. 2004).

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shows that the lost or destroyed material may have contained some information relevant to a contested issue. The appropriate remedy or sanction is that which is proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure. (ii) When material or information is discoverable under this article, but it is disclosed belatedly, the court shall impose an appropriate remedy or sanction whenever the party entitled to disclosure shows that it was significantly prejudiced.

SOURCES OF PROPOSED C.P.L. §245.85(2): This provision is drawn from the analysis in People v. Joseph, 86 N.Y.2d 565 (1995); People v. Wallace, 76 N.Y.2d 953 (1990); People v. Martinez, 71 N.Y.2d 937 (1988); People v. Kelly, 62 N.Y.2d 516 (1984); and People v. Goins, 73 N.Y.2d 989 (1989).

COMMENTARY ON PROPOSED C.P.L. §245.85(2): This provision codifies the requirements of decisional law regarding when the court must impose a remedy or sanction for a discovery violation. It provides important guidance for litigants and courts, and will help to minimize the inefficiencies and costs of the frequent litigation that occurs over sanctions for discovery violations (including the costs of reversals of defendants’ convictions on appeal, when the court improperly fails to impose any remedy or sanction for a discovery violation that, under the standards established in decisional law, “prejudiced” the defendant).

There are two scenarios in which the court may need to impose some remedy or sanction for a discovery violation: (1.) when discoverable material has been lost or destroyed, and (2.) when discoverable material has been belatedly disclosed. This provision codifies the different types of “prejudice” analysis that apply in each of these situations, as established by decisions of the Court of Appeals. (Of course, because it is the defendant who appeals these rulings in criminal cases, the decisions on which this provision is based all involved the prosecution’s discovery violations – but the same standards will apply to discovery violations by the defendant.

When a discoverable item is permanently unavailable and the party entitled to disclosure is prejudiced, the Court of Appeals has instructed that “the court must impose an appropriate sanction” and its failure to impose any remedy for a violation by the prosecution would automatically require the reversal of the defendant’s conviction on appeal.182 Furthermore, the showing of “prejudice” necessary to obtain some remedy or sanction for the wrongful loss or destruction of discoverable material is not onerous. In general, a defendant need establish only that the missing evidence apparently included some information relevant to a contested issue. 183

182 See People v. Martinez , 71 N.Y.2d 937, 940 (1988)(emphasis added); People v. Joseph , 86 N.Y.2d 565 (1995); People v. Wallace , 76 N.Y.2d 953 (1990); People v. Kelly , 62 N.Y.2d 516 (1984). 183 See, e.g. , People v. Joseph , 86 N.Y.2d 565, 571 (1995)(“Since some showing of prejudice is essential, we have also stated that the trial court must try to determine the content of the missing material. However, since a precise replication of a missing document cannot be achieved, the trial court’s inquiry must ordinarily be limited to ascertaining the document’s subject matter and approximate contents with a view toward determining its relevance …. Given the defense’s theory, information contained on the destroyed envelopes … might have provided useful additional support for the defense position”)(emphasis added); id. (“Since it was the conduct of the police that resulted in the loss of the envelopes and made it impossible to know whether the information they contained was consistent with the People’s position at trial, the People cannot now be heard to complain that the defendant’s showing of prejudice is not sufficiently definite and clear…. 124 – PROPOSED ARTICLE 245 (WITH COMMENTARIES) –

This provision codifies the applicable “prejudice” analysis when discoverable material has been lost or destroyed, by instructing the court to assess the potential that the missing evidence had to help the party entitled to its disclosure – since the Court of Appeals has recognized that ordinarily it is “impossible” to ascertain the precise extent to which, and ways in which, lost evidence actually would have been helpful. Specifically, it states: “the court shall impose an appropriate remedy or sanction whenever the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue. The appropriate remedy or sanction is that which is proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure.”

In the situation when a discoverable item was disclosed belatedly, the Court of Appeals has made clear that a different standard for gauging prejudice should be used. Because the parties and the court actually know what information such an item contains – and often it can still be used effectively during the trial – the applicable “prejudice” analysis for determining when a remedy or sanction is necessary is whether the party entitled to timely disclosure was substantially prejudiced by the violation.184 Accordingly, this provision states: “When material or information is discoverable under this article, but it is disclosed belatedly, the court shall impose an appropriate remedy or sanction whenever the party entitled to disclosure shows that it was significantly prejudiced.”

PERTINENT CURRENT NEW YORK LAW: Under current New York law, there is no statutory provision that sets forth the applicable analysis and standard for when a remedy or sanction must be imposed for a discovery violation. But decisional law has established that “the court must impose an appropriate sanction” for the improper loss or destruction of discoverable material whenever the party entitled to its disclosure shows some potential for prejudice. See People v. Martinez , 71 N.Y.2d 937 (1988)(applying this rule to discoverable written or recorded witness statements); People v. Kelly , 62 N.Y.2d 516 (1984)(applying this rule to discoverable physical evidence). Specifically, the applicable standard for demonstrating “prejudice” in this situation is to assess the potential that the missing evidence had to help the party entitled to disclosure, because ordinarily it is “impossible” to ascertain the precise extent to which and ways in which the lost evidence actually would have been helpful. See People v. Joseph , 86 N.Y.2d 565, 571 (1995); People v. Wallace , 76 N.Y.2d 953, 955 (1990).

In contrast, when discoverable material is disclosed belatedly, the court must impose an appropriate remedy or sanction when the party entitled to disclosure is significantly prejudiced. See People v. Ranghelle , 69 N.Y.2d 56 (1986); People v. Goins , 73 N.Y.2d 989 (1989). In both situations, the court’s failure to impose any

Unfortunately, the destruction of those envelopes made it impossible for the defense to make contrary arguments at trial”)(emphasis added); People v. Wallace , 76 N.Y.2d 953, 955 (1990)(“The undercover officer’s claim that he incorporated the [lost written] description of defendant into his ‘buy’ report did not alleviate the prejudice. There is no way to know whether the description contained in the ‘buy’ report matched those contained in the lost notes”)(emphasis added); see also People v. Banch , 80 N.Y.2d 610 (1992). 184 See, e.g. , People v. Goins , 73 N.Y.2d 989 (1989); People v. Thompson , 71 N.Y.2d 918 (1988); People v. Ranghelle , 69 N.Y.2d 56 (1986); People v. Perez , 65 N.Y.2d 154 (1985); People v. Mitchell , 14 A.D.3d 579 (2d Dept. 2005).

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remedy for a prejudicial discovery violation is automatic reversal of a defendant’s conviction on appeal. See People v. Joseph , 86 N.Y.2d 565 (1995); People v. Wallace , 76 N.Y.2d 953 (1990); People v. Kelly , 62 N.Y.2d 516 (1984).

(3.) Sanction for Nondisclosure of Statement of Testifying Prosecution Witness. The failure of the prosecutor or any agent of the prosecutor to disclose any written or recorded statement made by a prosecution witness which relates to the subject matter of the witness’s testimony shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction, in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding; provided, however, that nothing in this section shall affect or limit any right the defendant may have to a reopened pre-trial hearing when such statements were disclosed before the close of evidence at trial.

SOURCES OF PROPOSED C.P.L. §245.85(3): This provision is modified from C.P.L. §240.75.

COMMENTARY ON PROPOSED C.P.L. §245.85(3): This provision maintains current law enacted by the Legislature in 2000 to overturn the so-called “ Ranghelle ” rule. That rule had required automatic reversal of a defendant’s conviction on appeal – without regard to the existence or non-existence of prejudice – whenever a testifying prosecution witness’s written or recorded statement was not disclosed to the defense at trial as required by C.P.L. §240.45(1)(a) and People v. Rosario , 9 N.Y.2d 286 (1961).185 The Legislature determined that often this remedy was excessive and that such errors are better addressed on appeal by using a “harmless error” standard of review (under which the defendant would be able to obtain a reversal of his or her conviction only upon a showing that there was a reasonable possibility that the error contributed to the conviction).

This provision retains current C.P.L. §240.75 in the discovery statute, to avert the possibility that the Court of Appeals’ decisions enforcing the so-called “Ranghelle ” rule of per se appellate reversals might be resurrected were the statutory provision that nullified the Ranghelle decision repealed. 186 The Legislature’s judgment regarding the appropriate standard for appellate remedies for such discovery violations is left unchanged. The provision makes minor stylistic alterations to the language of C.P.L. §240.75 to conform it with other provisions of this article.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, “[t]he failure of the prosecutor or any agent of the prosecutor to disclose statements that are required to be disclosed under subdivision one of section 240.44 or paragraph (a) of subdivision one of section 240.45 of this article shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding; provided, however, that nothing in this section

185 See People v. Rahghelle , 69 N.Y.2d 56 (1986); cf. C.P.L. §240.75. 186 See, e.g. , People v. Jones , 70 N.Y.2d 547 (1987); People v. Rahghelle , 69 N.Y.2d 56 (1986).

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shall affect or limit any right the defendant may have to a re-opened pre-trial hearing when such statements were disclosed before the close of evidence at trial.” See C.P.L. §240.75.

245.90. Admissibility of Discovery

SOURCES OF PROPOSED C.P.L. §245.90: This provision is modified from C.P.L. §240.70(2).

COMMENTARY ON PROPOSED C.P.L. §245.90: This provision maintains the commonsense rule from current law that a party’s previous intention revealed during the discovery process to call a witness or to introduce evidence at trial is not binding or a proper subject for adverse comment. Whether made as a result of additional investigations or tactical reconsideration (or for any number of other legitimate reasons), a subsequent decision not to call a witness or to offer evidence does not in itself provide a valid basis for the opposing party to suggest to the fact- finder that it has evidentiary or other significance. Since many legitimate explanations may exist for such decisions, they are not inherently probative as evidence or a reliable basis for making arguments.

PERTINENT CURRENT NEW YORK LAW: Under current New York law, “[t]he failure of the prosecution to call as a witness a person specified in [C.P.L. §240.20(1)] or of any party to introduce disclosed material in the trial shall not, by itself, constitute grounds for any sanction or for adverse comment thereupon by any party in summation to the jury or at any other point.” See C.P.L. §240.70(2).

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V. FIVE PAST PROPOSALS FOR DISCOVERY REFORM IN NEW YORK STATE

1. ADVISORY COMMITTEE REPORT (2008): For many years, the Chief Administrative Judge’s Advisory Committee on Criminal Law and Procedure has recommended that New York’s discovery rules be amended to allow for more liberal and expeditious discovery. See “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, 122-123, 138-145, 297-298. Its 2008 report recommended the following changes:

· The need to file written motions demanding discovery would be eliminated , and the prosecution automatically would disclose various types of evidence and information within 21 days of arraignment or at the next court appearance after arraignment, whichever is later. (pp. 3, 9.) Defendants still would have to make other motions – such as to dismiss the indictment under C.P.L. §210.45, and for suppression hearings under C.P.L. §710.60 – within 45 days of arraignment, pursuant to C.P.L. §255.20.

· Oral pre-trial motions would be allowed, whenever the defense and prosecution consent and the court agrees. The court would document its rulings on oral pre-trial motions on a special form. This statutory amendment would not change current requirements that certain types of pre-trial motions (such as for a suppression hearing under C.P.L. §710.60), when made in writing , must be supported by sworn factual allegations. (pp. 39-44.)

· All written/recorded statements of prospective prosecution witnesses (i.e. , Rosario ) would be disclosed within 21 days of arraignment or at the next court appearance after arraignment, whichever is later. Prosecutors would be authorized to withhold or redact any information that “could” compromise an ongoing investigation or when they otherwise “need” to do so. They could also redact “the name, address, or any other information that serves to identify with particularity a person supplying information” about the case, except for names and addresses already disclosed and names and business addresses of non- undercover police witnesses. The defense would have to move for disclosure of any withheld or redacted information, and the court “may” (not “must”) order its disclosure if the prosecutor fails to demonstrate that disclosure “could” interfere with an ongoing investigation or that there is some other “need” for a protective order. (pp. 4, 12-15.)

· Most police reports would be disclosed within 21 days of arraignment or at the next court appearance after arraignment, whichever is later. Prosecutors 128 – FIVE PAST PROPOSALS FOR DISCOVERY REFORM –

would be authorized to withhold or redact any information that “could” compromise an ongoing investigation or when they otherwise “need” to do so. They could also redact “the name, address, or any other information that serves to identify with particularity a person supplying information” about the case, except for names and addresses already disclosed and names and business addresses of non-undercover police witnesses. The defense would have to move for disclosure of any withheld or redacted information, and the court “may” (not “must”) order its disclosure if the prosecutor fails to demonstrate that disclosure “could” interfere with an ongoing investigation or that there is some other “need” for a protective order. (pp. 5, 12-18.) The defense could move for an order directing the prosecution to obtain specifically identified law enforcement reports that had not been disclosed, or for a judicial subpoena for such reports. (pp. 5, 14-15.)

· All other discoverable materials under C.P.L. §240.20 (including defendants’ and co-defendants’ statements, examination reports, electronic recordings, etc.) would be disclosed within 21 days of arraignment or at the next court appearance after arraignment, whichever is later. (pp. 4, 9, 12-13.)

· Search warrant documents (i.e. , the warrant, warrant application, supporting affidavits, and a police inventory of all seized property) and seized property would be disclosed within 21 days of arraignment or at the next court appearance after arraignment, whichever is later. (pp. 122-123.)

· The prosecution would have to give notice of all police-arranged identifications of the defendant made by a prospective prosecution witness from whom it intends to elicit an in-court identification at trial ( i.e. , including photographic identifications) . There would be no preclusion remedy for a violation of this rule, because the notice would be required under C.P.L. §240.20 and not C.P.L. §710.30. (pp. 297-298.)

· Any prior crimes/bad acts by the defendant that the prosecutor intends to introduce for impeachment or as substantive evidence ( i.e. , Sandoval or Molineux ) would have to be disclosed within 15 days of trial . (pp. 5, 19.)

· All trial exhibits that the prosecutor intends to introduce would have to be disclosed within 15 days of trial (with the same redaction provisions that apply to written/recorded statements and police reports, and with a reciprocal discovery obligation). (pp. 6, 20-21.)

· Information regarding any expert witness the prosecutor intends to call, as well as a written report by the expert witness, would have to be disclosed within 15 days of trial (with a reciprocal discovery obligation). (pp. 5, 20-21.)

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· The court would have authority to grant a defense application for discovery (or to issue a judicial subpoena) with respect to any “property” not otherwise covered by the discovery statutes and within the possession of law enforcement, upon a showing that it is material to the preparation of the defense and that the request is reasonable . The prosecutor would have the right to “redact any such property” and the court could “review that redaction” upon application of the defense. The redacted property would have to indicate that there had been a redaction, unless the court ordered otherwise based upon a showing of good cause. (pp. 17-18.)

· The requirement that a defense application for a judicial subpoena duces tecum to a government agency must be on one day’s notice to the subpoenaed government agency and to the prosecutor would be eliminated (see C.P.L. §610.20(3) and C.P.L.R §2307). The defense could apply for the subpoena ex parte ; and, “for good cause shown,” the court could dispense with the notification requirement and the obligation to serve the prosecutor with the subpoena once it is issued. (pp. 138-141.)

· In its psychiatric evidence notice pursuant to C.P.L. §250.10(2), the defense would have to specify the type of psychiatric defense upon which it intends to rely and the alleged psychiatric malady underlying that defense (but not the evidence that would be used to establish it); and it would have to provide a written report of its expert witness’s findings within 15 days of trial. The period in which the C.P.L. §250.10(2) notice must be given would be extended from 30 days to 60 days. (pp. 6, 26-29, 142-145.)

· The prosecution would be allowed to use a defendant’s pre-trial statements to law enforcement despite a failure to give timely notice pursuant to C.P.L. §710.30(2), when the defendant would not be prejudiced and the “interest of justice” would be served ( compare People v. O’Doherty , 70 N.Y.2d 479 (1987)). In this situation, the defendant could make an oral motion to suppress the statement(s) for which untimely notice was given; and, if notice was given more than 90 days after arraignment, the defendant would be entitled to an instruction that the jury may consider the untimely notice. (pp. 7, 31-32.)

2. CHAIRMAN OF CODES COMMITTEE ’S PROPOSAL (2008): For many years, Joseph Lentol, Chairman of the Assembly Codes Committee, has introduced bills to reform New York’s discovery rules. See Bill A01119A (2008). His 2008 proposal sought the following changes:

· The need to file written motions demanding discovery would be eliminated .

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· All arrest reports and complaint reports would be disclosed at arraignment (potentially subject to a protective order).

· All written/recorded statements of prospective prosecution witnesses (i.e. , Rosario ) would be disclosed within 15 days of arraignment (potentially subject to a protective order).

· Prosecution witnesses’ known conviction records and pending criminal cases would be disclosed within 15 days of arraignment .

· Information regarding any expert witness the prosecution intends to call, as well as a written report by the expert witness, would be disclosed within 15 days of arraignment .

· Certain types of exculpatory information would be specified in the list of discoverable materials under C.P.L. §240.20 that would be disclosed within 15 days of arraignment ( i.e. , including exculpatory scientific reports or tests, exculpatory identification procedures, and reports or interviews indicating that a person other than the defendant committed the crime).

· A continuing “prompt disclosure” obligation for subsequently acquired discovery materials would be specified within C.P.L. §240.20 (although such a duty already exists under C.P.L. §240.60).

· The defense would have 15 days after disclosure of the prosecution’s discovery package to file any motion for discovery (and the motion would have to specifically state that each item it seeks has not previously been disclosed).

· The defense would have a reciprocal obligation to disclose before jury selection ( i.e. , rather than after the prosecution’s case , as C.P.L. §240.45 currently provides) the written/recorded statements of its prospective witnesses (i.e. , Damon material); known conviction records of prospective defense witnesses; and information about expert witnesses and expert witnesses’ written reports (all potentially subject to protective orders).

· The prosecution would have to serve notice of its intention to offer identification evidence or evidence of a defendant’s statement to law enforcement within 30 days of arraignment ( i.e. , rather than within 15 days of arraignment, as C.P.L. §710.30(2) currently provides).

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3. ASSEMBLY SPEAKER ’S PROPOSAL (1996): Sheldon Silver, Speaker of the Assembly, introduced a bill to reform New York’s discovery rules in 1995-96. See Bill 7655 (1995- 96). The proposal was based upon work by a committee under the auspices of the Office of Court Administration. It sought the following changes:

· The need to file written motions demanding discovery would have been eliminated .

· All written/recorded statements of prospective prosecution witnesses (i.e. , Rosario ) would have been disclosed within 21 days of arraignment or at the next court appearance, whichever was later (subject to redaction by the prosecutor).

· All police reports relating to the case would have been disclosed within 21 days of arraignment or at the next court appearance after arraignment, whichever was later (subject to redaction by the prosecutor).

· All other discoverable materials under C.P.L. §240.20 (including defendants’ and co-defendants’ statements, examination reports, electronic recordings, etc.) would have been disclosed within 21 days of arraignment or at the next court appearance, whichever was later.

· Any prior crimes/bad acts by the defendant that the prosecution intended to introduce for impeachment or as substantive evidence ( i.e. , Sandoval or Molineux ) would have had to be disclosed within 15 days of trial .

· All trial exhibits that the prosecution intended to introduce would have had to be disclosed within 15 days of trial .

· Information regarding any expert witness the prosecution intended to call, as well as a written report by the expert witness, would have had to be disclosed within 15 days of trial (subject to redaction).

· The defense would have been permitted to apply for a subpoena to obtain non-disclosed police reports and other types of property that were not produced (subject to redaction by the prosecutor).

· The defense would have been permitted to apply for a subpoena to obtain other necessary items that were not otherwise covered by C.P.L. §240.20 .

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· The defense would have had a reciprocal obligation to disclose the names and written reports of its prospective expert witnesses (subject to redaction) .

· In its psychiatric evidence notice pursuant to C.P.L. §250.10(2), the defense would have had to specify the type of psychiatric defense upon which it intended to rely .

· The strict preclusion remedy for violations of the 15-day notice requirement of C.P.L. §710.30(2) would have been eliminated . A higher burden would have been imposed for obtaining an appellate reversal based on other discovery violations. And the then-existing per se reversal remedy for Rosario violations would have been eliminated.

4. SENATE PROPOSAL (1996): Dale Volker of the New York State Senate introduced a bill to reform New York’s discovery rules in 1995-96. See Bill S.5815 (1995-96). This proposal sought the following changes:

· The need to file written motions demanding discovery would have been eliminated .

· All police and other law enforcement agency reports relevant to the case would have been disclosed within 15 days of arraignment (subject to redaction by the prosecutor, or to being withheld upon notice to the defense).

· The name, address, date of birth, and known criminal record of any witness whom the prosecution intended to call at trial would have been disclosed within 15 days of arraignment (subject to being withheld by the prosecutor upon notice to the defense).

· The name, address, and prior statements of any eyewitness whom the prosecution did not intend to call at trial would have been disclosed within 15 days of arraignment (subject to redaction by the prosecutor, or to being withheld upon notice to the defense).

· Information regarding any expert witness whom the prosecution intended to call, as well as a written summary of the expect witness’s opinions, would have been disclosed within 15 days of arraignment .

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· Information about a victim’s or other prosecution witness’s known mental health or drug or alcohol addiction treatment history (within 10 years of the case) would have been disclosed to the court for an assessment of whether it should be given to the defense, within 15 days of arraignment.

· Both parties would have had to disclose all written/recorded statements of their prospective witnesses (i.e. , Rosario and Damon ) at least 3 days prior to a hearing or trial .

· The prosecution would have had to provide written notice to the defense if any discoverable material was being withheld, and to specify the grounds for doing so, so that the defense could move for an order compelling disclosure if appropriate .

· Any defense motion concerning disclosed materials would have had to be filed within 30 days of the prosecution’s discovery package .

· In its psychiatric evidence notice pursuant to C.P.L. §250.10(2), the defense would have had to specify the type of psychiatric defense upon which it intended to rely and the subject matter of an expert psychiatric witness’s testimony . The expert witness would have had to prepare a written report of his or her findings. The parties would have had to exchange their expert psychiatric witnesses’ reports 15 days before trial.

· The strict preclusion remedy for violations of the 15-day notice requirement of C.P.L. §710.30(2) would have been eliminated when late notice was not intended to and did not substantially prejudice the defendant’s ability to move to suppress. And the then-existing per se reversal remedy for Rosario violations would have been eliminated.

5. CODES COMMITTEE REPORT (1991): The Assembly Codes Committee commissioned a study of national criminal discovery practices and trends, as well as laws and practices in New York State. It recommended that New York’s discovery rules be amended to allow for more liberal and expeditious discovery. See “Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), pp. 94-112 [and Executive Summary, pp. 20-24]. This report suggested the following general changes, without crafting specific proposals or statutory language:

· There should be a statutory requirement that the prosecution provide “access” to its witnesses, under which provision of the witness’s name, address and telephone number would constitute “access” – but the prosecutor alternatively could provide “access” in other ways, such as by

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arranging an interview between the witness and defense counsel at a neutral location or on the telephone . (pp. 94-95 [Executive Summary, p. 20].)

· The Police Department should be required to copy materials discoverable under C.P.L. Article 240 and to transmit them directly to the defense ( i.e. , to eliminate one step in the exchange of information, and thereby reduce instances in which the prosecution does not possess documents in its files and thus fails to transmit them to the defense, and to eliminate the inefficiency of two separate steps in copying) . The prosecution could examine witness-sensitive materials prior to their disclosure by the Police Department to the defense attorney. (pp. 109-110 [Executive Summary, pp. 23-24].)

· The need for motions demanding discovery should be eliminated, and all discovery should be automatic and governed by C.P.L. Article 240 . The defense should be permitted to file additional motions for discovery and subpoenas only after the deadline for automatic discovery; and the defense lawyer should be required to affirm that the information sought in such a motion may be discoverable by law and has not yet been provided. (pp. 108-109 [Executive Summary, pp. 22-23].)

· The then-existing per se reversal remedy for Rosario violations should be eliminated . (pp. 111-112 [Executive Summary, p. 24].)

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VI. HIGHLIGHTS OF MASSACHUSETTS’ DISCOVERY RULES

· AUTOMATIC DISCLOSURE : The prosecution is required to provide discovery materials without a motion by the defense. See Mass. R. Crim. P. 14(a)(1)(A). Its discovery package is delivered at or before a pretrial conference. See Mass. R. Crim. P. 14(a)(1)(A)&(B).

· WITNESS CONTACT INFORMATION : The discovery package provided at the pretrial conference includes the names, addresses, and dates of birth of all prospective prosecution witnesses other than police officers. See Mass. R. Crim. P. 14(a)(1)(A)(iv). It also includes the names and business addresses of police witnesses. See Mass. R. Crim. P. 14(a)(1)(A)(v).

· WITNESS STATEMENTS : The discovery package provided at the pretrial conference includes all statements of prospective prosecution witnesses. See Mass. R. Crim. P. 14(a)(1)(A)(vii). The statutory definition of a “statement” includes, however, only written/recorded statements that are “a substantially verbatim recital of an oral declaration and which [are] recorded contemporaneously with the making of the oral declaration,” and written statements “made by a person having percipient knowledge of relevant facts and which contains such facts” (excluding drafts and incorporated notes) ( i.e. , these categories are more restrictive than New York’s Rosario rule). See Mass. R. Crim. P. 14(d).

· POLICE REPORTS : The discovery package provided at the pretrial conference includes all relevant police reports. See Mass. R. Crim. P. 14(a)(1)(A)(vii).

· STATEMENTS AT IDENTIFICATION PROCEDURES : The discovery package provided at the pretrial conference includes a summary of all identification procedures and all statements made in the presence of or by identifying witnesses that are relevant to the identification procedure . See Mass. R. Crim. P. 14(a)(1)(A)(viii).

· ALL TANGIBLE OBJECTS AND EXHIBITS : The discovery package provided at the pretrial conference includes all tangible objects, exhibits, and results of scientific tests and examinations. See Mass. R. Crim. P. 14(a)(1)(A)(vii).

· ALL DEFENDANT STATEMENTS : The discovery package provided at the pretrial conference includes all written/recorded statements and a summary of all oral statements of the defendant and co-defendants ( i.e. , not limited to statements made to public servants ). See Mass. R. Crim. P. 14(a)(1)(A)(i).

· ALL EXCULPATORY FACTS : The discovery package provided at the pretrial conference includes all exculpatory “facts” in the possession of the prosecution or of persons under the prosecution’s direction or who investigated the case ( i.e. , not limited to “materially” exculpatory information or to exculpatory “evidence,” and required to be provided at a specific point rather than the constitutional standard of “at a meaningful time” ). See Mass. R. Crim. P. 14(a)(1)(A)(iii). The statute also explicitly provides that discoverable materials

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include information within the possession, custody or control of “persons under the prosecutor’s direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case.” See Mass. R. Crim. P. 14(a)(1)(A).

· WITNESS CONVICTIONS : The Probation Department is required to provide the parties with a record of all convictions, complaints, and indictments against all of the prospective prosecution witnesses and all defendants, within 5 days of the prosecution’s disclosure of its witnesses’ names and addresses to the defense. See Mass. R. Crim. P. 14(a)(1)(D); see also Mass. R. Crim. P. 14(a)(1)(A)(iv).

· “CATCH -ALL ” DISCOVERY : The parties may move “for discovery of other material and relevant evidence ” not otherwise covered by the statute. See Mass. R. Crim. P. 14(a)(2).

· MATERIAL POSSESSED BY THIRD PARTIES : The prosecution is required to notify the defense whenever it receives information about the existence of any otherwise discoverable item that is not within the possession, custody or control of law enforcement , and the parties can move for a court order requiring the preservation of such items by a third party. See Mass. R. Crim. P. 14(a)(1)(E).

· PROTECTIVE ORDER : The statute provides that its automatic discovery provisions “have the force and effect of a court order,” but that “if in the judgment of either party good cause exists for declining to make any of the disclosures … it may move for a protective order … and production of the item shall be stayed pending a ruling by the court.” See Mass. R. Crim. P. 14(a)(1)(C). The court can issue any kind of protective order that is “appropriate” based upon “a sufficient showing.” See Mass. R. Crim. P. 14(a)(6). “The judge may, for good cause shown, grant discovery to a defendant on the condition the material to be disclosed be available only to counsel for the defendant.” See Mass. R. Crim. P. 14(a)(6).

· CERTIFICATES OF COMPLIANCE : The parties must certify in writing that they have exercised due diligence in complying with their discovery obligations, and this certification must identify each item that was provided. See Mass. R. Crim. P. 14(a)(3).

· RECIPROCAL DISCOVERY : The defense has reciprocal discovery obligations after it receives the prosecution’s discovery package. The defense must disclose: the names, addresses, dates of birth, and statements by individuals whom the defense intends to call at trial; intended expert opinion evidence; photographs, tangible objects, exhibits, scientific test reports; and information regarding any inducements promised to any witness. See Mass. R. Crim. P. 14(a)(1)(B).

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VII. HIGHLIGHTS OF NEW JERSEY’S DISCOVERY RULES

· DISCOVERY BEFORE GUILTY PLEA : The prosecution must complete its discovery obligations at the time of a pre-indictment guilty plea offer (upon request). See N.J. CT. R. 3:13-3(a).

· TIMING AND PROCEDURE OF DISCOVERY : The prosecution is required to make discovery materials available within 14 days of an indictment ; the defense must obtain those discovery materials within 28 days of an indictment (alternatively, the defense can elect not to obtain the discovery materials so as to avoid reciprocal discovery obligations); and the defense must provide its reciprocal discovery 7 days before arraignment . See N.J. CT. R. 3:13-3(b).

· WITNESS CONTACT INFORMATION : The discovery package provided within 14 days of an indictment includes the names, addresses, and birthdates of “ any persons whom the prosecutor knows to have relevant evidence or information ” ( i.e. , not limited to prospective prosecution witnesses ), as well as “a designation by the prosecutor as to which of those persons may be called as witnesses.” See N.J. CT. R. 3:13-3(c)(6).

· WITNESS STATEMENTS AND CONVICTIONS : The discovery package provided within 14 days of an indictment includes all statements by persons known to possess relevant information (i.e. , not limited to statements by prospective prosecution witnesses, or to written/recorded statements ) and by co-defendants, as well as records of their prior convictions. See N.J. CT. R. 3:13-3(c)(7).

· POLICE REPORTS : The discovery package provided within 14 days of an indictment includes all police reports. See N.J. CT. R. 3:13-3(c)(8).

· ALL DEFENDANT STATEMENTS : The discovery package provided within 14 days of an indictment includes records of all statements by the defendant, including a summary of all unrecorded statements by the defendant that are known to the prosecution ( i.e. , not limited to statements made to public servants ). See N.J. CT. R. 3:13-3(c)(2).

· ALL TANGIBLE OBJECTS FROM DEFENDANT : The discovery package provided within 14 days of an indictment includes all tangible objects obtained from or belonging to the defendant. See N.J. CT. R. 3:13-3(c)(1).

· RECIPROCAL DISCOVERY : If the defense elects to obtain discovery materials from the prosecution, it must provide reciprocal discovery 7 days before arraignment . See N.J. CT. R. 3:13-3(b). The defense must disclose: the names, addresses, and birthdates of its prospective witnesses, as well as their written statements and memoranda summarizing their oral statements (3:13-3(d)(3)); written statements and any existing memoranda summarizing the oral statements of individuals whom the prosecution may call as witnesses, if the defense intends to use those statements at trial (including for impeachment) (3:13-3(d)(4); see State v. Williams , 404 A.2d 34 [NJ 1979]); relevant documents and tangible objects (3:13-3(d)(2)); results of scientific tests and examinations (3:13-3(d)(1)); and a summary of an expert 138 – HIGHLIGHTS OF NEW JERSEY’S DISCOVERY RULES –

witness’s prospective testimony (3:13-3(d)(5)). See N.J. CT. R. 3:13-3(d). The defendant’s own statements to defense counsel, and attorney work product, are exempted. See N.J. CT. R. 3:13-3(e). The defense also must serve written notice of intent to rely on various defenses 7 days before arraignment , including: intoxication, duress, entrapment, justification, insanity, lack of requisite state of mind, affirmative defense to felony murder, ignorance or mistake, renunciation, and others. See N.J. CT. R. 3:12-1.

· PROTECTIVE ORDERS : A party that seeks to withhold or redact discoverable material may, “upon motion and for good cause shown,” seek a protective order. See N.J. CT. R. 3:13-3(f)(1). The court may permit the showing of good cause to be made, in whole or in part, in the form of an ex parte written statement that will be sealed and preserved for appellate review. See N.J. CT. R. 3:13-3(f)(2).

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VIII. HIGHLIGHTS OF FLORIDA’S DISCOVERY RULES

· DISCOVERY IS OPTIONAL : The defense has the option to participate in the statutory discovery process (including discovery depositions) by filing a “notice of discovery” after the accusatory instrument is filed. See Fla. R. C.P. 3.220(a). If a defendant knowingly shares in discovery obtained by a co-defendant, the defendant is deemed to have elected to participate in discovery. See Fla. R. C.P. 3.220(a).

· TIMING AND PROCEDURE OF DISCOVERY : The prosecution is required to provide a written discovery exhibit within 15 days of the defense’s “notice of discovery.” See Fla. R. C.P. 3.220(b)(1). “The court may set, and upon the request of any party shall set, a discovery schedule, including a discovery cut-off date, at the pretrial conference.” See Fla. R. C.P. 3.220(p)(2).

· WITNESS CONTACT INFORMATION AND CATEGORIES : The discovery exhibit includes “a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial [ i.e. , not limited to prospective prosecution witnesses ]…. The names and addresses of persons listed shall be clearly designated in the following categories: (i) Category A . These witnesses shall include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi witnesses, (3) witnesses who were present when a recorded or unrecorded statement was taken from or made by a defendant or co-defendant , which shall be separately identified within this category, (4) investigating officers, (5) witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged, (6) child hearsay witnesses, and (7) expert witnesses…. (ii) Category B . All witnesses not listed in either Category A or Category C. (iii) Category C. All witnesses who performed only ministerial functions or whom the prosecutor does not intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense.” See Fla. R. C.P. 3.220(b)(1)(A).

· WITNESS STATEMENTS : The discovery exhibit includes all written/recorded statements “of any kind or manner” by all individuals known to have relevant information ( i.e. , not limited to statements by prospective prosecution witnesses ). See Fla. R. C.P. 3.220(b)(1)(B).

· POLICE REPORTS : The discovery exhibit includes “all police and investigative reports of any kind prepared for or in connection with the case” (but not the notes from which those reports were compiled). See Fla. R. C.P. 3.220(b)(1)(B).

· ALL DEFENDANT STATEMENTS : The discovery exhibit includes “any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements ” ( i.e. , not limited to statements made to public

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servants ). See Fla. R. C.P. 3.220(b)(1)(C). The discovery exhibit also must disclose all written, recorded, and oral statements by a co-defendant. See Fla. R. C.P. 3.220(b)(1)(D).

· ALL TANGIBLE OBJECTS FROM DEFENDANT AND EXHIBITS : The discovery exhibit includes all tangible objects that were obtained from or belonged to the defendant. See Fla. R. C.P. 3.220(b)(1)(F). It also includes all tangible objects that the prosecutor intends to use at the hearing or trial. See Fla. R. C.P. 3.220(b)(1)(K).

· BRADY AS SOON AS PRACTICABLE : The prosecution must disclose material and exculpatory evidence or information (i.e. , Brady ) “ as soon as practicable after the filing of the charging document.” See Fla. R. C.P. 3.220(b)(4).

· RECIPROCAL DISCOVERY : If the defense elects to participate in statutory discovery, it must provide its reciprocal discovery within 15 days after receipt of the prosecution’s discovery exhibit. See Fla. R. C.P. 3.220(d)(1)(A). The defense must provide (among other things): a written list of the names and addresses of all individuals whom it expects to call as witnesses, as well as all of their statements (but disclosure of the defendant’s own statements is not required); results of scientific tests and examinations; and tangible objects and documents that the defense expects to use. See Fla. R. C.P. 3.220(d)(1)(B).

· “CATCH -ALL ” DISCOVERY : “On a showing of materiality, the court may require such other discovery to the parties as justice may require.” See Fla. R. C.P. 3.220(f).

· PROTECTIVE ORDERS : The court may, “on its own initiative or on motion of counsel,” permit a party to withhold or redact discoverable material based on a showing of “good cause.” See Fla. R. C.P. 3.220(e), Fla. R. C.P. 3.220(l)(1); see also Fla. R. C.P. 3.220(b)(2), Fla. R. C.P. 3.220(d)(1)(B)(3). “If a protective order is granted, the defendant may, within 2 days thereafter, or at any time before the prosecutor furnishes the information or material that is the subject of the motion for protective order, withdraw the defendant’s notice of discovery and not be required to furnish reciprocal discovery.” See Fla. R. C.P. 3.220(d)(3). Even when the court grants a protective order, “all material and information to which a party is entitled … must be disclosed in time to permit the party to make beneficial use of it .” See Fla. R. C.P. 3.220(l)(1).

· DEPOSITIONS OF WITNESSES : After the accusatory instrument has been filed, the parties have an automatic right to take depositions of certain witnesses in felony cases, and can take depositions of witnesses in misdemeanor or traffic offense cases upon a showing of good cause. See Fla. R. C.P. 3.220(h)(1)(D). Specifically, the defense always has the right to take the deposition of a “Category A” witness or a witness expected to be called by a jointly tried co-defendant (3.220(h)(1)(A)). The defense also may take the deposition of any witness who was not listed on the prosecution’s “discovery exhibit” and who may have relevant information (3.220(h)(1)(A)). The prosecution always has the right to take the deposition of any witness listed by the defense (3.220(h)(1)(A)). Neither party may take the deposition of a “Category B” witness, except upon a showing of good cause (3.220(h)(1)(B)). Neither party may take the deposition of a “Category C” witness, unless the court determines that the witness should have been listed in a different category (3.220(h)(1)(C)). A witness may not be deposed more than once, except on consent of the parties or by court order (3.220(h)(1)).

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Deposition transcripts for which the county must pay may be ordered only when the witness is material and the parties agree, or by court order (3.220(h)(2)). The defendant is not physically present at a deposition unless the parties agree or by court order (3.220(h)(7)). During a deposition, either party or the deponent may make a motion that the examination is being conducted in bad faith or in an unreasonable manner, and the court may terminate or limit the deposition or impose sanctions. See Fla. R. C.P. 3.220(l)(2).

· ENDORSEMENT OF DEPOSITIONS IN FLORIDA : Florida has had depositions in criminal cases for forty years. The most recent review of its deposition rules was in 1989 by the Criminal Discovery Commission created by the Florida Supreme Court, a panel comprised of representatives from the law enforcement community, prosecutors, public and private criminal defense lawyers, victims’ rights organizations, and the judiciary. The Commission’s primary finding was that, although discovery depositions are “not required as a matter of right under the federal or state constitutions, [they] make a unique and significant contribution to a fair and economically efficient determination of factual issues in the criminal process.” The Commission concluded that discovery depositions “should be retained as part of Florida’s Criminal Justice process and should not be abolished or significantly curtailed.” See John F. Yetter, Discovery Depositions in Florida Criminal Proceedings: Should They Survive?, 16 Fla. St. U. L. Rev. 675, 675 (1988); see also Florida Supreme Court Criminal Discovery Commission, “Report of the Florida Supreme Court’s Commission on Criminal Discovery” (1989); Mary Prosser, “Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities,” 2006 Wis. L. Rev. 541, 607-13 (2006).

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IX. HIGHLIGHTS OF COLORADO’S DISCOVERY RULES

· AUTOMATIC DISCLOSURE : The prosecution automatically is required to provide discovery materials and motions for discovery of items specified in the statute are prohibited . See Colo. R. Crim. P. 16 Part V (a).

· TIMING OF DISCOVERY : The prosecution is required to disclose most of the discovery materials “as soon as practicable but not later than twenty calendar days after the defendant’s first appearance at the time of or following the filing of charges” (certain items must be disclosed within thirty days of trial). See Colo. R. Crim. P. 16 Part I (b)(1), (3). “In no case shall such disclosure be less than thirty (30) days before trial for a felony trial, or seven (7) days before trial for a non-felony trial, except for good cause shown.” See Colo. R. Crim. P. 16 Part V (b)(1). The defense must be notified in writing if any information has not been disclosed because the prosecutor will be applying for a protective order . See Colo. R. Crim. P. 16 Part I (b)(1).

· WITNESS CONTACT INFORMATION : The discovery package provided as soon as practicable and within 20 days of the filing of charges includes a written list of the names and addresses of all prospective prosecution witnesses. See Colo. R. Crim. P. 16 Part I (a)(1)(VII).

· WITNESS STATEMENTS : The discovery package provided as soon as practicable and within 20 days of the filing of charges includes “statements of all witnesses” ( i.e. , not explicitly limited to statements by prospective prosecution witnesses, or to written/recorded statements ). See Colo. R. Crim. P. 16 Part I (a)(1)(I).

· POLICE REPORTS : The discovery package provided as soon as practicable and within 20 days of the filing of charges includes all police reports. See Colo. R. Crim. P. 16 Part I (a)(1)(I).

· ALL DEFENDANT STATEMENTS : The discovery package provided as soon as practicable and within 20 days of the filing of charges includes all written/recorded statements, and a summary of all oral statements, made to the police or the prosecution by the defendant and co-defendants. See Colo. R. Crim. P. 16 Part I (a)(1)(VIII). Unlike written/recorded statements by the defendant or co-defendants, the required summary of their oral statements is not discoverable until 30 days before trial. See Colo. R. Crim. P. 16 Part I (b)(3).

· ALL TANGIBLE EVIDENCE : The discovery package provided as soon as practicable and within 20 days of the filing of charges includes “all tangible objects held as evidence in connection with the case.” See Colo. R. Crim. P. 16 Part I (a)(1)(IV).

· ALL EXCULPATORY INFORMATION : The discovery package includes “any material or information within [the prosecution’s] possession or control which tends to negate the guilt of the accused” (i.e. , not limited to “materially” exculpatory information or to exculpatory “evidence,” but the timing of this disclosure is not specified ). See Colo. R. Crim. P. 16 Part I 143 – HIGHLIGHTS OF COLORADO’S DISCOVERY RULES –

(a)(2). The statute also explicitly provides that discoverable items include “material and information in the possession or control of members of [the prosecutor]’s staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office.” See Colo. R. Crim. P. 16 Part I (a)(3).

· FLOW -OF -INFORMATION PROVISION : The statute specifies that: “The prosecuting attorney shall ensure that a flow of information is maintained between the various investigative personnel and his or her office sufficient to place within his or her possession or control all material and information relevant to the accused and the offense charged.” See Colo. R. Crim. P. 16 Part I (b)(4).

· “CATCH -ALL ” DISCOVERY : “The court in its discretion may, upon motion, require disclosure to the defense of relevant material and information not covered by [the discovery statute], upon a showing by the defense that the request is reasonable.” See Colo. R. Crim. P. 16 Part I (d)(1).

· RECIPROCAL DISCOVERY : The reciprocal discovery provision provides that, “[s]ubject to constitutional limitations, use at trial” ( i.e. , not explicitly limited to defenses as to which it intends to introduce evidence), as well as “the names and addresses of persons whom the defense intends to call as witnesses at trial.” See Colo. R. Crim. P. 16 Part II (c). “In no case shall such disclosure be less than thirty (30) days before trial for a felony trial, or seven (7) days before trial for a non-felony trial, except for good cause shown.” See Colo. R. Crim. P. 16 Part II (c).

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X. HIGHLIGHTS OF ARIZONA’S DISCOVERY RULES

· DISCOVERY BEFORE GUILTY PLEA : The prosecution must complete its discovery obligations at least 30 days before the deadline for accepting a guilty plea offer in Superior Court cases. See Ariz. R. Crim. P. 15.8. If the prosecutor fails to do so, “the court, upon motion of the defendant, shall consider the impact of the failure to provide such disclosure on the defendant’s decision to accept or reject a plea offer. If the court determines that the prosecutor’s failure to provide such disclosure materially impacted the defendant’s decision, and the prosecutor declines to reinstate the lapsed plea offer, the presumptive minimum sanction shall be preclusion from admission at trial of any evidence not disclosed at least 30 days prior to the deadline.” See Ariz. R. Crim. P. 15.8.

· POLICE REPORTS AT ARRAIGNMENT : At the defendant’s arraignment or the preliminary hearing (whichever occurs first), the prosecution is required to disclose “[a]ll then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged.” See Ariz. R. Crim. P. 15.1(a), (b)(3); see also Comment to Ariz. R. Crim. P. 15.1(a) (the commentary to this rule “recognizes the defense attorney’s need for basic information early in the process in order to meaningfully confer with the client and make appropriate strategic decisions. The former rule ... did not require disclosure until after arraignment had occurred”).

· TIMING OF OTHER DISCOVERY : The prosecution is required to disclose other discovery materials within 30 days after arraignment for Superior Court cases and at the first pre-trial conference for other cases. See Ariz. R. Crim. P. 15.1(c). All statutorily required disclosures “shall be completed at least seven days prior to trial.” See Ariz. R. Crim. P. 15.6(c).

· WITNESS CONTACT INFORMATION : The discovery package provided within 30 days of arraignment for Superior Court cases and at the first pre-trial conference for other cases includes the names and addresses of all prospective prosecution witnesses. See Ariz. R. Crim. P. 15.1(b)(1). Upon a showing of good cause, the court may “order that disclosure of the identity of any witness be deferred for any reasonable period of time not to extend beyond five days prior to the date set for trial .” See Ariz. R. Crim. P. 15.5(a).

· WITNESS STATEMENTS : The discovery package provided within 30 days of arraignment for Superior Court cases and at the first pre-trial conference for other cases includes the “relevant written or recorded statements” of the prospective prosecution witnesses. See Ariz. R. Crim. P. 15.1(b)(1); see also Ariz. R. Crim. P. 15.4(a)(statutory definition of “statements”).

· ALL DEFENDANT STATEMENTS : The discovery package provided within 30 days of arraignment for Superior Court cases and at the first pre-trial conference for other cases includes all statements of the defendant and co-defendants ( i.e. , not limited to statements made to public servants, or to statements the prosecution intends to offer ). See Ariz. R. Crim. P. 15.1(b)(2).

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· PRIOR BAD ACTS OF DEFENDANT : The discovery package provided within 30 days of arraignment for Superior Court cases and at the first pre-trial conference for other cases includes a “list of all prior acts of the defendant which the prosecutor intends to use to prove motive, intent, or knowledge or otherwise use at trial.” See Ariz. R. Crim. P. 15.1(b)(7).

· TANGIBLE OBJECTS : The discovery package provided within 30 days of arraignment for Superior Court cases and at the first pre-trial conference for other cases includes a list of all “tangible objects that the prosecution intends to use at trial or which were obtained from or purportedly belonged to the defendant.” See Ariz. R. Crim. P. 15.1(b)(5).

· ALL EXCULPATORY INFORMATION : The discovery package provided within 30 days of arraignment for Superior Court cases and at the first pre-trial conference for other cases includes “[a]ll then existing material or information which tends to mitigate or negate the defendant’s guilt as to the offense charged” (i.e. , not limited to “materially” exculpatory information or to exculpatory “evidence,” and required to be provided at a specific point rather than the constitutional standard of “at a meaningful time” ). See Ariz. R. Crim. P. 15.1(b)(8). The statute also explicitly provides that discoverable materials include information within the possession or control of “[a]ny law enforcement agency which has participated in the investigation of the case and that is under the prosecutor’s direction or control, or … [a]ny other person who has participated in the investigation or evaluation of the case and who is under the prosecutor’s direction or control.” See Ariz. R. Crim. P. 15.1(f).

· “CATCH -ALL ” DISCOVERY (I NCLUDING OBTAINING ITEMS FROM THIRD PARTIES ): “Upon motion of the defendant showing that the defendant has substantial need in the preparation of the defendant’s case for material or information not otherwise covered by [the statute], and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, the court in its discretion may order any person to make it available to the defendant . The court may, upon the request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive.” See Ariz. R. Crim. P. 15.1(g). Upon a similar motion by the prosecutor (and provided it will not violate the defendant’s constitutional rights), “the court in its discretion may order any person to make such material or information available to the prosecutor.” See Ariz. R. Crim. P. 15.2(g). The Commentary to Ariz. R. Crim. P. 15.1(f) – on “Disclosure by Prosecutor” – also states that, while prosecutors are not generally required to obtain information from victims or other lay witnesses, the court has the authority to “ order the prosecutor to obtain and disclose information and materials covered by [the discovery statute] that is not within the possession and control of the state if (1.) the state has better access to the information; (2.) the defense shows that it has made a good faith effort to obtain the information without success; and (3.) the information has been specifically requested by the defense.”

· RECIPROCAL DISCOVERY : The reciprocal discovery provision provides that, within 40 days after arraignment or 10 days after the prosecution’s disclosures (whichever occurs first) for Superior Court cases, and within 20 days after the prosecution’s disclosures in other cases, “the defendant shall provide a written notice to the prosecutor specifying all defenses as to which the defendant intends to introduce evidence at trial, including, but not limited to, alibi, insanity, self-defense, defense of others, entrapment, impotency, marriage, insufficiency of a prior conviction, mistaken identity, and good character. The notice shall

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specify for each listed defense the persons, including the defendant, whom the defendant intends to call as witnesses at trial in support of each listed defense.” See Ariz. R. Crim. P. 15.2(b), (d); see also Ariz. R. Crim. P. 15.1(h)(“Upon receipt of the notice of defenses required from the defendant under Rule 15.2 (b) the state shall disclose the names and addresses of all persons whom the prosecutor intends to call as rebuttal witnesses together with their relevant written or recorded statements”). Within the same timeframe, the defense also must provide the prosecution with the names and addresses of its prospective witnesses (other than the defendant), as well as their relevant written/recorded statements. See Ariz. R. Crim. P. 15.2(c)(1). Within the same timeframe, the defense also must provide the prosecution with a list of the documents and other tangible objects that it intends to use at trial. See Ariz. R. Crim. P. 15.2(c)(3).

· DEPOSITIONS OF WITNESSES : The court has discretion to order the oral deposition of “any person except the defendant,” provided that a party “shows that the person’s testimony is material to the case or necessary adequately to prepare a defense or investigate the offense, that the person was not a witness at the preliminary hearing … and that the person will not cooperate in granting a personal interview.” See Ariz. R. Crim. P. 15.3(a)(2). “With the consent of the parties, the court may order that a deposition be taken on written interrogatories.” See Ariz. R. Crim. P. 15.3(d). The defendant has the right to be present at a deposition. See Ariz. R. Crim. P. 15.3(e).

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XI. HIGHLIGHTS OF DISCOVERY RULES IN OTHER LARGE STATES WITH BIG CITIES

· 1991 SURVEY OF DISCOVERY PRACTICES IN LARGE STATES WITH BIG CITIES : A 1991 study commissioned by the Assembly Codes Committee surveyed prosecutors and defense lawyers in California, Florida, Illinois, Michigan, New Jersey and Pennsylvania regarding their states’ discovery practices. It found that: “ Of the ten largest cities, New York City is the only one located in a state that does not provide for pre-trial disclosure of witness lists .” See Report to the New York State Assembly Codes Committee, “Criminal Discovery in New York State: Current Practice and Proposals for Change” (1991), p. 15. Furthermore, it concluded that, in all of these jurisdictions at that time, as a matter of practice the prosecution would disclose witnesses’ names and addresses, witnesses’ statements, and police reports early in the case ; that witness intimidation was not a general problem; and that both prosecutors and defense lawyers strongly approved of the discovery practices and found them to be efficient. See id. at pp. 68-82 [and Executive Summary, pp. 10-16].

· In interviews summarized in the 1991 study, prosecutors in jurisdictions that provide broad and early pre-trial discovery reported that they had “no doubt” that it led to more guilty pleas, since as one of them commented: “a defense attorney can better convince the [defendant] to take a plea…. [Discovery] avoids the concern that the DA is selling the defendant a bill of goods.” See, e.g. , id. at pp. 79, 82 [and Executive Summary, pp. 14, 16]. On the administrative costs of a system of automatic pre-trial discovery, prosecutors made comments such as: “we hire a few people at minimum wage to copy all files (except for attorney work-product). Copies are put in a central depository and public defenders just come by a window and pick the material up.” See, e.g. , id. at p. 79 [and Executive Summary, p. 14]. Another prosecutor described that “the DA’s office and the police department have staff whose sole responsibility is providing discovery to the defense. This results in ‘real organizational efficiencies.’” See, e.g. , id. at p. 80 [and Executive Summary, p. 14].

· KEY DISCOVERY RULES IN CALIFORNIA : In California, the prosecution must disclose, within 30 days of trial, “the names and addresses of persons the prosecutor intends to call as witnesses at trial,” as well as their relevant written/recorded statements and reports of their statements. See Cal. Penal Code §§1054.1(a), (f), 1054.7. But the defense lawyer may not disclose (or permit to be disclosed) to the defendant or to anyone else the address or telephone number of a victim or prosecution witness, “unless specifically permitted to do so by the court after a hearing and a showing of good cause.” See Cal. Penal Code §1054.2(a)(1). The defense has a reciprocal discovery obligation to disclose the names and addresses of its prospective witnesses, as well as their relevant written/recorded statements and reports of their statements. See Cal. Penal Code §1054.3(a).

· In California, the prosecution must disclose, within 30 days of trial (unless good cause is shown), “ any exculpatory evidence” known to be in the possession of law enforcement (i.e. , not limited to “materially” exculpatory information or to exculpatory “evidence”). See Cal. Penal Code §§1054.1(e), 1054.7. The prosecution must also disclose, within 30 days of trial

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(unless good cause is shown), “ all relevant real evidence” obtained as part of the investigation (i.e. , not limited to evidence the prosecution intends to offer at trial ). See Cal. Penal Code §§1054.1(c), 1054.7.

· KEY DISCOVERY RULES IN ILLINOIS : In Illinois, upon a written defense motion, the prosecution must disclose the names and addresses of its prospective witnesses, as well as their relevant written/recorded statements and memoranda containing substantially verbatim reports of their oral statements (and the defense can move for in camera inspection of memoranda recording oral statements to determine whether they are substantially verbatim reports). See Ill. S. Ct. R. 412 (a)(i). “The State shall perform its obligations under this rule as soon as practicable following the filing of a motion by defense counsel,” but the disclosures need not be made before the defendant is indicted or charged by information. See Ill. S. Ct. R. 412 (d), 411.

· In Illinois, the prosecution must disclose “any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce his punishment therefor. The State shall make a good-faith effort to specifically identify by description or otherwise any material disclosed pursuant to this section based upon the information available to the State at the time the material is disclosed to the defense” (i.e. , not limited to “materially” exculpatory information or to exculpatory “evidence,” and required to be provided at “as soon as practicable following the filing of a motion by defense counsel”). See Ill. S. Ct. R. 412 (c), (d).

· In Illinois, “[u]pon a showing of materiality to the preparation of the defense,” the court has discretion to order the disclosure of any “relevant material and information” not otherwise covered by the discovery rules. See Ill. S. Ct. R. 412(h).

· In Illinois, “[s]ubject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial [ i.e. , not explicitly limited to defenses as to which the defendant intends to introduce evidence] and shall furnish the State with … [t]he names and last known addresses of persons he intends to call as witnesses, together with their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements.” See Ill. S. Ct. R. 413(d).

· KEY DISCOVERY RULES IN MICHIGAN : In Michigan, both parties must disclose upon request “the names and addresses of all lay and expert witnesses whom the party may call at trial; in the alternative, a party may provide the name of the witness and make the witness available to the other party for interview.” See MCR 6.201(A)(1).

· In Michigan, the prosecution must disclose upon request “any police report and interrogation records concerning the case, except so much of a report as concerns a continuing investigation.” See MCR 6.201(B)(2).

· In Michigan, the prosecution must disclose, within 21 days of a request by the defense, “any exculpatory evidence or information known to the prosecuting attorney” (i.e. , not

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limited to “materially” exculpatory information or to exculpatory “evidence”). See MCR 6.201(B)(1), (F).

· KEY DISCOVERY RULES IN PENNSYLVANIA : In Pennsylvania, upon a defense motion “showing that they are material to the preparation of the defense,” the court has discretion to order disclosure of the names and addresses of “eyewitnesses” known to the prosecution. See Pa. R. Crim. P. 573(B)(2)(a)(i). The court also has discretion to order disclosure (upon the same defense motion) of the written/recorded or substantially verbatim oral statements of “eyewitnesses.” See Pa. R. Crim. P. 573(B)(2)(a)(ii). The defendant has a reciprocal discovery obligation to disclose the names and addresses of “eyewitnesses” that it intends to call at trial, provided that it has requested and received discovery of the names and addresses of eyewitnesses known to the prosecution. See Pa. R. Crim. P. 573(C)(1)(b).

· In Pennsylvania, upon a written defense motion “showing that they are material to the preparation of the defense,” the court has discretion to order the disclosure of “any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.” See Pa. R. Crim. P. 573 (B)(2)(a)(iv).

· KEY DISCOVERY RULES IN NORTH CAROLINA : In North Carolina, the prosecution is required to “ [m]ake available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The term ‘file’ includes the defendant’s statements, the co- defendants’ statements, witness statements, investigating officers’ notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant…. Oral statements shall be in written or recorded form, except that oral statements made by a witness to a prosecuting attorney outside the presence of a law enforcement officer or investigatorial assistant shall not be required to be in written or recorded form unless there is significantly new or different information in the oral statement from a prior statement made by the witness.” See N.C. Gen. Stat. §15A-903(a)(1); see also 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).

· In North Carolina, if the defense receives discovery from the prosecution, it must provide reciprocal discovery of “the intent to offer at trial a defense of alibi, duress, entrapment, insanity, mental infirmity, diminished capacity, self-defense, accident, automatism, involuntary intoxication or voluntary intoxication.” See N.C. Gen. Stat. §15A- 905(c)(1).

· In North Carolina, the discovery statute includes a specific direction that “ a law enforcement or prosecutorial agency shall make available to the State a complete copy of the complete files related to the investigation of the crimes committed or the prosecution of the defendant for compliance” with disclosure requirements. See N.C. Gen. Stat. §15A- 903(3)(b).

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Federal Rules of Criminal Procedure, Rule 16 Page 1

United States Code Annotated Currentness Federal Rules of Criminal Procedure for the United States District Courts (Refs & Annos) IV. Arraignment and Preparation for Trial Rule 16. Discovery and Inspection

(a) Government's Disclosure.

(1) Information Subject to Disclosure.

(A) Defendant's Oral Statement.Upon a defendant's request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.

(B) Defendant's Written or Recorded Statement.Upon a defendant's request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:

(i) any relevant written or recorded statement by the defendant if:

• the statement is within the government's possession, custody, or control; and

• the attorney for the government knows--or through due diligence could know--that the statement exists;

(ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent; and

(iii) the defendant's recorded testimony before a grand jury relating to the charged offense.

(C) Organizational Defendant.Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement:

(i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or

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(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent.

(D) Defendant's Prior Record.Upon a defendant's request, the government must furnish the defendant with a copy of the defendant's prior criminal record that is within the government's possession, custody, or control if the attorney for the government knows--or through due diligence could know--that the record exists.

(E) Documents and Objects.Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

(F) Reports of Examinations and Tests.Upon a defendant's request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

(i) the item is within the government's possession, custody, or control;

(ii) the attorney for the government knows--or through due diligence could know--that the item exists; and

(iii) the item is material to preparing the defense or the government intends to use the item in its case- in-chief at trial.

(G) Expert witnesses.--At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.

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(2) Information Not Subject to Disclosure.Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.

(3) Grand Jury Transcripts.This rule does not apply to the discovery or inspection of a grand jury's recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1), and 26.2.

(b) Defendant's Disclosure.

(1) Information Subject to Disclosure.

(A) Documents and Objects.If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:

(i) the item is within the defendant's possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.

(B) Reports of Examinations and Tests.If a defendant requests disclosure under Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

(i) the item is within the defendant's possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness's testimony.

(C) Expert witnesses.--The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if--

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.

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This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.

(2) Information Not Subject to Disclosure.Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of:

(A) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or

(B) a statement made to the defendant, or the defendant's attorney or agent, by:

(i) the defendant;

(ii) a government or defense witness; or

(iii) a prospective government or defense witness.

(c) Continuing Duty to Disclose.A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if:

(1) the evidence or material is subject to discovery or inspection under this rule; and

(2) the other party previously requested, or the court ordered, its production.

(d) Regulating Discovery.

(1) Protective and Modifying Orders.At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal.

(2) Failure to Comply.If a party fails to comply with this rule, the court may:

(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;

(B) grant a continuance;

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(D) enter any other order that is just under the circumstances.

CREDIT(S)

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, Pub.L. 94-64, § 3(20)-(28), 89 Stat. 374, 375; Dec. 12, 1975, Pub.L. 94-149, § 5, 89 Stat. 806; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 29, 2002, eff. Dec. 1, 2002; Nov. 2, 2002, eff. Dec. 1, 2002; Pub.L. 107-273, Div. C, Title I, § 11019(b), Nov. 2, 2002, 116 Stat. 1825.)

Amendments received to 01-01-10

END OF DOCUMENT

https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=WLW10.0... 3/4/2010 Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 1 of 50 1

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 ------X 3 UNITED STATES OF AMERICA, Docket No. 08-231 Plaintiff, 4 v. Washington, D.C. 5 Tuesday, April 7, 2009 10:10 a.m. 6 THEODORE F. STEVENS, 7 Defendant. ------X 8 MOTION HEARING 9 BEFORE THE HONORABLE EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE 10

11 APPEARANCES:

12 For the Government: UNITED STATES DEPARTMENT OF JUSTICE Criminal Division, Narcotic and 13 Dangerous Drug Section By: Mr. Paul M. O'Brien 14 1400 New York Avenue, N.W. Suite 11100 15 Washington, D.C. 20005 202.514.0169 16 [email protected]

17 UNITED STATES DEPARTMENT OF JUSTICE Criminal Division, Domestic Security 18 Section By: Mr. David Jaffe 19 950 Pennsylvania Avenue Washington, D.C. 20530 20 202.514.0865 [email protected] 21 UNITED STATES ATTORNEY'S OFFICE 22 Criminal Division, Fraud Section By: Mr. William Stuckwisch 23 1400 New York Avenue, N.W. Washington, D.C. 20005 24 202.514.0169 [email protected] 25 APPEARANCES cont'd on next page. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 2 of 50 2

1 APPEARANCES, cont'd.

2 For the Defendant: WILLIAMS & CONNOLLY, L.L.P. By: Mr. Brendan V. Sullivan 3 Mr. Robert M. Cary Mr. Alex G. Romain 4 Ms. Beth Stewart Mr. Joseph Terry 5 Mr. Craig Singer 725 Twelfth Street, N.W. 6 Washington, D.C. 20005 202.434.5000 7 [email protected] [email protected] 8 [email protected] [email protected] 9 [email protected] [email protected] 10 Court Reporter: Catalina Kerr, RPR 11 Official Court Reporter U.S. District Courthouse 12 Room 6716 Washington, D.C. 20001 13 202.354.3258 [email protected] 14

15 Proceedings recorded by mechanical stenography, transcript

16 produced by computer.

25 Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 3 of 50 3

1 P-R-O-C-E-E-D-I-N-G-S

2 (10:10 P.M.; OPEN COURT; DEFENDANT PRESENT WITH HIS

3 ATTORNEYS.)

4 THE DEPUTY CLERK: Criminal Case 08-231, United

5 States versus Theodore Stevens. Would counsel please identify

6 yourselves for the record.

7 MR. O'BRIEN: Paul O'Brien, David Jaffe, Bill

8 Stuckwisch for the United States.

9 THE COURT: Good morning.

10 MR. CARY: Good morning, Your Honor. Joe Terry,

11 Alex Romain, Beth Stewart, Brendan Sullivan, and Rob Cary for

12 Senator Stevens, who's present.

13 THE COURT: All right. Good morning. This is

14 indeed a dramatic day in a case that has -- has had many

15 dramatic and unfortunately many shocking and disturbing

16 moments. For nearly 25 years I have told defendants appearing

17 before me that in my courtroom they will receive a fair trial

18 and that I will make sure of it. In nearly 25 years on the

19 bench, I've never seen anything approaching the mishandling

20 and misconduct that I've seen in this case.

21 Before we hear from the parties this morning, the

22 Court believes it is important to take a few minutes to talk

23 about how we got to this point in this case and to share some

24 thoughts about what we, as a legal community, need to do to

25 safeguard the integrity of our criminal justice system. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 4 of 50 4

1 The United States Government has an obligation to

2 pursue convictions fairly and in accordance with the

3 Constitution, and when the Government does not meet its

4 obligations to turn over evidence, the system falters.

5 Again and again, both during and after the trial in

6 this case, the Government was caught making false

7 representations and not meeting its discovery obligations.

8 And each time those false representations or unmet obligations

9 came to light, the Government claimed that it had simply made

10 a good faith mistake, that there was no ill intent and/or that

11 the Court had already taken steps to address the problem and

12 therefore there was no need for court action.

13 When the Government failed to produce Rocky

14 Williams' exculpatory grand jury testimony, the Government

15 claimed that this testimony was immaterial. When the

16 Government sent Mr. Williams back to Alaska without advising

17 the Defense or the Court, notwithstanding the Court's

18 interactions with counsel for the parties that weekend, the

19 Government asserted that it was acting in, quote, good faith,

20 end quote.

21 When the Government affirmatively redacted

22 exculpatory statements from FBI Form 302s, it claimed that,

23 quote, it was just a mistake, end quote.

24 When Government counsel told the Court that Bill

25 Allen had not been reinterviewed the day before a hearing on Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 5 of 50 5

1 its Brady disclosures, that was a, quote, mistaken

2 understanding, end quote.

3 When the Government failed to turn over exculpatory

4 statements from Dave Anderson, it claimed that they were

5 immaterial.

6 When the Government failed to turn over a critical

7 grand jury transcript containing exculpatory information, it

8 claimed that it was inadvertent.

9 When the Government used business records that the

10 Government undeniably knew were false, it said that it was

11 unintentional.

12 When the Government failed to produce the bank

13 records of Bill Allen, it claimed that a check included in

14 those bank records was immaterial to the Defense.

15 When an FBI agent involved with the investigation

16 and prosecution filed a complaint alleging misconduct on the

17 part of the prosecutors and another FBI agent, not only did

18 the Government seek to keep that complaint a secret but the

19 Government claimed that the allegations had nothing to do with

20 the verdict and no relevancy to the Defense, that the

21 allegations could be addressed by the Office of Professional

22 Responsibility's investigation and that any misconduct had

23 already been addressed and remedied during the trial.

24 In fact, as recently as February the 6th , the

25 Government told the Court that there was no need for any Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 6 of 50 6

1 post-trial discovery and that the Government was, and I quote,

2 confident that its response to the Defendant's post-trial

3 motions would resolve the need for further inquiry into the

4 allegations as they relate to the trial and the convictions of

5 the Defendant, end quote.

6 And yet, after the Court held three senior attorneys

7 in contempt for blatantly failing to comply with this court's

8 order to produce documents and a new team of prosecutors was

9 assigned to the case, we learned for the first time what may

10 well be the most shocking and serious Brady violations of all,

11 that the Government failed to tell the Defense of an interview

12 with Bill Allen in which Allen stated that he did not recall a

13 conversation with Bob Persons about sending the Senator a bill

14 and that Allen estimated the value of the VECO work on the

15 Senator's home at $80,000, far less than the hundreds of

16 thousands of dollars the Government had alleged at trial.

17 As this court said during the trial, and I quote,

18 this is not about prosecution by any means necessary, end

19 quote, and as the Court also said, and I quote, the fair

20 administration of justice does not depend on the luck of the

21 draw or a lucky day or a lucky continuance, end quote; indeed,

22 it should not depend on who represents the Defendant, whether

23 an FBI agent blows a whistle, a new administration, a new

24 attorney general or a new trial team. The fair administration

25 of justice depends on the Government meeting its obligations Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 7 of 50 7

1 to pursue convictions fairly and in accordance with the

2 Constitution. There was no question whatsoever in this case

3 that the Government knew of its obligations. The Court issued

4 discovery orders and talked about Brady from Day One;

5 nevertheless, the Government repeatedly failed to meet those

6 obligations.

7 The importance of these obligations cannot be

8 overstated. As the Supreme Court explained in its 1999

9 decision in a case of Strickler versus Green, and I quote, in

10 Brady, this court held that the suppression by the prosecution

11 of evidence favorable to an accused upon request violates due

12 process where the evidence is material either to guilt or to

13 punishment, irrespective of the good faith or bad faith of the

14 prosecution.

15 "We have since held that the duty to disclose such

16 evidence is applicable, even though there has been no request

17 by the accused, and that the duty encompasses impeachment

18 evidence as well as exculpatory evidence. Such evidence is

19 material if there is a reasonable probability that, had the

20 evidence been disclosed to the defense, the result of the

21 proceeding would have been different.

22 "Moreover, the rule encompasses evidence known only

23 to police investigators and not to the prosecutor. In order

24 to comply with Brady, therefore, the individual prosecutor has

25 a duty to learn of any favorable evidence known to the others Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 8 of 50 8

1 acting on the Government's behalf in this case, including the

2 police. These cases, together with earlier cases condemning

3 the knowing use of perjured testimony, illustrate the special

4 role played by the American prosecutor in the search for truth

5 in criminal trials.

6 "Within the federal system, for example, we have

7 said that the United States Attorney is the representative,

8 not of an ordinary party to a controversy but of a sovereignty

9 whose obligation to govern impartially is as compelling as its

10 obligation to govern at all, and whose interest, therefore, in

11 a criminal prosecution is not that it shall win a case, but

12 that justice shall be done, end quote.

13 We must never forget the Supreme Court's directive

14 that a criminal trial is a search for the truth. Yet in

15 several cases recently this court has seen troubling failures

16 to produce exculpatory evidence in violation of the law and

17 this court's orders. Whether you are a public official, a

18 private citizen or a Guantanamo Bay detainee, the prosecution,

19 indeed the United States Government must produce exculpatory

20 evidence so that justice shall be done.

21 I, therefore, urge my judicial colleagues on every

22 trial court everywhere to be vigilant and to consider entering

23 an exculpatory evidence order at the outset of every criminal

24 case, whether requested to do so or not, and to require that

25 the exculpatory material be turned over in a useable format Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 9 of 50 9

1 because, as we've seen in this case, the use of summaries is

2 an opportunity for mischief and mistake, and I encourage the

3 Attorney General, for whom I have the highest regard, to

4 require Brady training for new and veteran, experienced

5 prosecutors throughout the country and also encourage an open

6 dialogue between defense attorneys and prosecutors regarding

7 these discovery obligations.

8 Further, I urge the President and the Attorney

9 General, as they select new United States attorneys, to obtain

10 from those appointees their commitments to fulfilling these

11 important obligations, and indeed, the Senate confirmation

12 process should also address these most important prosecutorial

13 obligations.

14 Those are a few thoughts about how we got to this

15 point and where we go from here. I'll have more to say in a

16 few minutes, but first I'll hear from the Government. We are

17 here on the Government's motion to set aside the verdict and

18 dismiss the indictment with prejudice.

19 Before I hear from the Government, I want to

20 recognize Mr. O'Brien, Mr. Jaffe and Mr. Stuckwisch. The

21 record in this case was voluminous with a post-trial docket

22 even more extensive than the trial docket. The Court has no

23 doubt that the three of you worked around the clock over the

24 last seven weeks reviewing evidence, transcripts, pleadings,

25 opinions and orders, to so thoroughly familiarize yourself Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 10 of 50 10

1 with that record that you were able to recognize what

2 information had not been turned over and why that information

3 was relevant. It could not have been an easy task, and the

4 Court thanks you for your efforts. Counsel.

5 MR. O'BRIEN: Good morning, Your Honor.

6 THE COURT: Good morning.

7 MR. O'BRIEN: Pursuant to Rule 48 of the Federal

8 Rules of Criminal Procedure, the United States respectfully

9 moves this court to set aside the verdict and dismiss the

10 indictment with prejudice, and as I indicated to the Court

11 last week, my comments this morning will be brief.

12 I just want to talk a little bit about how we

13 arrived at the decision we arrived at and generally where we

14 got to this morning. As the Court knows, in February of 2009,

15 Rita Glavin, the acting head, the Acting Assistant Attorney

16 General for the criminal division appointed myself, Mr. Jaffe

17 and Mr. Stuckwisch to handle the post-trial litigation in this

18 matter.

19 Specifically, we were asked to handle any litigation

20 arising from the complaint that was filed by Special Agent

21 Joy, and I know the Court is very familiar with that

22 complaint.

23 As the Court is also aware, we conducted a number of

24 witness interviews, reviewed documents in order to prepare for

25 the Government's response to the Defendant's motion to dismiss Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 11 of 50 11

1 and also to prepare for a potential evidentiary hearing

2 concerning the allegations in the Joy complaint.

3 We thought it was important that we engage that

4 process and be as transparent as possible with the Court and

5 with the Defense, and that is why we elected early on to

6 voluntarily produce the 302s generated from the witness

7 interviews as we were preparing to file a response to the

8 motion to dismiss and for the potential evidentiary hearing.

9 It was during this process that we learned that

10 Mr. Allen had been interviewed on April 15 th , 2008. The

11 Court has, I think, accurately summarized the statements that

12 are in our pleading concerning what we learned of that

13 interview, and I think certainly the Court, having heard and

14 tried this case, knows the significance not only of

15 Mr. Allen's trial testimony but also the significance of the

16 information contained in the notes that was not provided to

17 the Defense.

18 The Government was obligated to produce the

19 information from the April 15 th , 2008 interview with

20 Mr. Allen to the Defense, and they did not do so.

21 Once we learned that, our focus shifted from looking

22 at the allegations in the joint venture complaint to dealing

23 with this issue because we recognized it was a serious and

24 important issue. What we did is what we were obligated to do

25 is we immediately provided that information to the Defense. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 12 of 50 12

1 And I certainly appreciate the Court's kind comments this

2 morning, but really, in my view, Mr. Jaffe, Mr. Stuckwisch and

3 myself did only what we were obligated to do, which was once

4 we found that information, to provide it to the Defense.

5 We saw that information --

6 THE COURT: So what you did was, you did what should

7 have been done months ago.

8 MR. O'BRIEN: Well, we --

9 THE COURT: At least a year ago, almost a year to

10 the date, April 15 th ; is that correct?

11 MR. O'BRIEN: The interview was April 15 th , yes,

12 Your Honor.

13 We recognized the importance of that information,

14 and in analyzing that information and in looking at the trial

15 and the particular facts of this case, we reached the

16 conclusion that in the interest of justice, the Defendant was

17 entitled to a new trial, that the failure to turn over that

18 information warranted a new trial.

19 At that point, Your Honor, the issue became, should

20 we retry the Defendant? Should the Department of Justice

21 retry this particular Defendant, given the facts of this

22 particular case? And as the Court knows, the Attorney General

23 decided that in this particular case that it was in the

24 interest of justice not to retry this Defendant.

25 I hope the Court appreciates one thing this morning, Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 13 of 50 13

1 speaking on behalf of the Department, we deeply, deeply regret

2 that this occurred. We would ask the Court to grant the

3 Government's motion, dismiss the indictment with prejudice,

4 and again, I apologize to the Court and we deeply regret that

5 this occurred. I would ask the Court grant our motion.

6 THE COURT: All right. Let me ask you this,

7 Counsel, and I need a very precise answer to this question.

8 The Government counsel will concede, will it not, that the

9 failure to produce the notes or information from the April 15,

10 2008 interview with Bill Allen in which he did not recall

11 having a conversation with Bob Persons about sending the bill

12 to the Senator was a Brady violation?

13 MR. O'BRIEN: It was a Brady violation. It was

14 impeaching material, and the Court knows that Giglio is a

15 subset of Brady.

16 THE COURT: Right.

17 MR. O'BRIEN: Also, there was -- I failed to mention

18 this and I should have. The Court did mention it, but there

19 was also information about the value of the work that was

20 performed.

21 THE COURT: And that was going to be the second

22 question. Indeed, was that a Brady violation as well?

23 MR. O'BRIEN: I believe that was. At a minimum, it

24 was favorable evidence to the Defense that should have been

25 turned over pursuant to the instructions that Your Honor Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 14 of 50 14

1 previously mentioned.

2 THE COURT: All right. And if I understand it

3 correctly, this information was noted in -- in witness

4 interview sheets maintained by attorneys at the Department of

5 Justice?

6 MR. O'BRIEN: The information that we learned was --

7 as we pointed out in our papers, were interview notes of

8 prosecutors.

9 THE COURT: The prosecutors. Does the Government

10 intend to make public the results of the OPR investigation?

11 And if not, does the Government have a view as to whether

12 there are restrictions on the Court's ability to make public

13 those results?

14 MR. O'BRIEN: That is a fair question, Your Honor.

15 Let me just -- if I can just walk the Court through.

16 THE COURT: Sure.

17 MR. O'BRIEN: I am not trying to duck the answer --

18 THE COURT: No, I understand that.

19 MR. O'BRIEN: Duck the question, excuse me.

20 THE COURT: No.

21 MR. O'BRIEN: As we indicated in our --

22 THE COURT: This team hasn't ducked anything, and I

23 appreciate that.

24 MR. O'BRIEN: As we indicated in our pleading, the

25 Government will share the findings of the OPR inquiry with the Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 15 of 50 15

1 Court. We intend on doing that in-camera. Then we are in a

2 position to share the adjudication of those findings with the

3 Court in-camera.

4 The issue as to whether that will publicly be

5 disclosed, I can't answer that question at this point, Your

6 Honor, and this is the reason why. As you know from the Joy

7 complaint, there are a number of issues that were raised by

8 Special Agent Joy. Some of those issues dealt with sources,

9 some of those issues dealt with grand jury material, there are

10 also personnel matters asserted in that complaint, so I think

11 it would be premature for me to say now that we would be able

12 to share that publicly.

13 I think what needs to occur is we need to see what's

14 actually in the report and make a determination, based on

15 those factors that I just mentioned, and then make a decision

16 whether that report should or can be provided publicly. So, I

17 think the process is going to have to play its -- play out and

18 we're going to have to see what's ultimately in that report

19 and deal with the information accordingly.

20 THE COURT: All right. Fair enough. All right.

21 Thank you, Counsel.

22 MR. O'BRIEN: Thank you, Your Honor.

23 THE COURT: The Court had indicated in a prior

24 communication with the attorneys for both sides, that it would

25 afford Defense counsel and indeed the Senator an opportunity Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 16 of 50 16

1 to speak should anyone wish to speak.

2 MR. SULLIVAN: Your Honor, I thank you for the

3 opportunity to speak. There are some factual matters which I

4 think should be made public for the sake of completeness.

5 First off, let me say that I've never agreed more

6 with anything I've heard from the bench than your opening

7 remarks today. I agree with every word of it, including the

8 suggestions that you make about how change might be brought

9 about by high government officials focusing upon the need to

10 educate and instruct and reeducate prosecutors out here who

11 have this tremendous power and tremendous duty and

12 responsibility to make sure our system is fair.

13 I also thank Mr. O'Brien and his team for the

14 remarks of Mr. O'Brien. And before I start on the substance,

15 I'd also like to thank you again for the work. I've never

16 seen a court work harder, never seen a court clerk like Addy

17 Schmitt work harder and we appreciate the Court's courtesies

18 extended by Shelly Snook and Jenna Gatski, and courtroom

19 clerk, Carol Votteler, and John Cramer, the technical people

20 that made this horrible ordeal livable on a day-to-day basis.

21 The work they do is felt by all counsel and by the individuals

22 who find themselves in trial in this courthouse.

23 The bottom line of our experience here is that, as

24 the Court said, the most crucial of the Brady evidence and

25 material of this whole case was hidden from the Defense until Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 17 of 50 17

1 just two weeks ago, was finally produced to the Defense by

2 this new team of honest and ethical Government attorneys, five

3 months after an unlawful verdict was returned, a verdict

4 returned based upon Government misconduct.

5 The extraordinary evidence that we've seen in just

6 three documents that they produced -- they produced many --

7 but just the three that came on March 24, 25, and 26 supports

8 the multiple motions that were filed by the Defense throughout

9 these proceedings, which sought dismissal and a new trial.

10 More importantly, these documents prove that the Government

11 acted unlawfully to achieve the verdict which the jury

12 returned.

13 The new team has filed the motion, which was

14 described by Mr. O'Brien, and we request that it be granted.

15 To focus for just a moment on the importance of the

16 material itself, what we should know is that there was a

17 crucial interview on April 15 th , 2008, tax day, a day easy

18 to remember, April 15 th . The interview was conducted by

19 four assistant U.S. attorneys and one FBI agent, of Mr. Allen.

20 Mr. Allen and two of the assistant U.S. attorneys

21 were located in Anchorage. In Anchorage, during the

22 interview, one FBI agent was present. Those three were linked

23 into Washington where two other assistant U.S. attorneys

24 participated in this particular interview.

25 What Mr. Allen said that day was known to four Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 18 of 50 18

1 assistant U.S. attorneys who participated in this trial and

2 one FBI agent. And what is the importance of the material?

3 First, we find that there was an e-mail chain, and

4 in the e-mail chain there were discussions between the

5 prosecutors about not being satisfied, basically, with what

6 they heard from Mr. Allen and pushing him or finding a way to

7 push him.

8 In that interview, the Government attorneys had

9 about 13 -- 16 documents that they focused on in that session,

10 a total of 24 pages, and among those documents that were the

11 focus of their inquiry that day was the very same October 6,

12 2002 handwritten note from Senator Ted Stevens, the note upon

13 which we based the foundation for our defense, because all of

14 the words in the note screamed out that the author of the note

15 had no criminal intent and was innocent of the charges that

16 the Government had brought.

17 On March 25 th , the day after we received the first

18 e-mail chain, which was hand-delivered to our office by

19 Mr. O'Brien, he delivered another document. This document

20 were the handwritten notes of one of the assistant U.S.

21 attorneys who participated in the trial. In that handwritten

22 note, it said basically, as follows, when focusing on the key

23 note that Senator Stevens wrote to Bill Allen, the note said,

24 note from -- (reading) Note to Bill from Ted Stevens;

25 references, Torricelli and Ted Stevens needing a bill for the Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 19 of 50 19

1 work.

2 And the key Brady , the heart of it all read in the

3 handwritten notes of the prosecutor, quote, Bill does not

4 recall Bob Persons talking to him about a bill for Ted

5 Stevens.

6 The next day, March 26, Mr. O'Brien delivered

7 another handwritten set of notes from a second prosecutor.

8 Similarly, on the key sentence, it read, quote, Bill Allen

9 recalls receiving a note from Ted Stevens, doesn't recall

10 talking to Bob Persons regarding Ted Stevens' bill.

11 It went to the heart of what we called the lie about

12 Ted Stevens covering his ass. The most explosive testimony in

13 the case, the recent fabrication, as we told the jury, and

14 those materials were denied to us in cross-examining this

15 witness and in arguing to the jury our foundation principle

16 that we had articulated.

17 But there was even more in those short notes of the

18 prosecutor that would be called Brady or Giglio, and the Court

19 referenced some of it, but it was stunning, given the way the

20 Government presented the case. For example, statements such

21 as from Bill Allen, quote, Rocky and Dave screwed this up

22 because they were always drunk.

23 Another statement in these same notes, "David

24 Anderson and Rocky Williams always drunk, screwed up the

25 project, allowed the workers to waste time, sit around, Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 20 of 50 20

1 inefficient, didn't supervise well, but if they had done it

2 efficiently, maybe the fair value would be $80,000."

3 And as the Court said, the former -- the trial team

4 brought Exhibit 177 to you. They argued it repeatedly to

5 convince you it was a business record. They brought a person

6 from Mr. Allen's company up here to testify who said this was

7 kept in the normal course of business, and yet they knew not

8 only that Dave Anderson was out of the state during much of

9 the time as time was reflected, that Rocky Williams had

10 testified in the grand jury that he worked about 20 hours a

11 week, not the seven days a week reflected in the records.

12 But now, from these notes delivered two weeks ago,

13 Bill Allen himself saying the fair market value was $80,000 in

14 keeping with what you may recall might have been the

15 reflection of what the Stevenses thought that they would

16 approximately pay.

17 At -- in the e-mail exchange, you can see the kernel

18 of an idea which became the fabricated testimony. There was

19 even a statement in these documents, Your Honor, and I will

20 not mention any names here today. I don't -- in fairness to

21 people, but the document in the prosecutor's hand, or one of

22 the documents, the three I've talked about actually said,

23 (reading) We may want to talk to, unnamed person, immediately

24 afterwards and get him to push Bill Allen on this.

25 Now, the Court may remember that, in the opening, Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 21 of 50 21

1 the Defense made a big deal of that October 6, 2000 note, read

2 every word of it basically, and I said to the jury, "It jumps

3 off the page and grabs you by the throat to show you what the

4 intent of Senator Ted Stevens was." This note acknowledged in

5 what we've seen was a problem for the Government.

6 Mr. Allen took the stand and gave the famous false

7 testimony. The questions and answers will ring in my mind

8 forever because they were so shocking. I don't recall ever in

9 40 years hearing testimony that more aptly is called

10 "bombshell testimony."

11 Question: "Mr. Allen, do you remember having a

12 conversation with Mr. Persons after you got the note from

13 Senator Stevens?"

14 Answer: "Yes."

15 Question: "What did Mr. Persons tell you?"

16 Answer: "He said, 'Oh, Bill, don't worry about

17 getting a bill.' He said, 'Ted is just covering his ass.'"

18 Delivered with the skill of a trial lawyer right

19 before the break, and the jurors left with that ringing in

20 their ears, and the Defense sitting there, knowing

21 instinctually that was false testimony.

22 Why did we think it was false testimony? Because it

23 was inconsistent with many other things he said. To me, one

24 of the reasons it was false testimony was that the original

25 trial team and the FBI didn't even have the guts to go out and Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 22 of 50 22

1 ask Mr. Persons whether in fact he said it to Bill Allen.

2 You-all remember our days in early practice struggling to be a

3 lawyer; would any lawyer put a witness on the witness stand

4 and not go and follow-up to see whether the person had said it

5 to him?

6 It's called "a recent fabrication." But I walked

7 right into it, didn't I? I said in opening statement how

8 important this was. I built the defense on it. I didn't know

9 the CYA statement was coming. That was false testimony. They

10 knew it was false because they sat there and heard Bill Allen

11 say he had no recollection of talking to Persons about the

12 document that they were looking at that day, April 15 th ,

13 2008.

14 I struggled to show it was a recent fabrication,

15 without any success. I asked him outright, "When did you

16 first tell the Government that Persons told you Ted was

17 covering his ass and these notes were meaningless? It was

18 just recently, wasn't it?" - I asked.

19 Answer: "No, no."

20 In the Government closing, given by one of the

21 attorneys who was present at the April 15 th , 2008 meeting,

22 the Government lawyer asked the jury to believe Bill Allen.

23 Similarly, when another prosecutor got up to give the final

24 words, that prosecutor also suggested that Bill Allen was

25 believable. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 23 of 50 23

1 The Court succinctly laid out some of the highlights

2 of the Government misconduct prior to the March 2009

3 disclosure, and some of it, of course, was underscored in our

4 motions. Some suggest, Your Honor, out there in the world, as

5 they look at the Attorney General's action and they say, "Oh,

6 the Government just made some mistakes. They were technical

7 violations of some kind like we used to see our kids get

8 yellow cards when they played soccer and did something a

9 little too rough." They think, "Oh, it's a technical mistake

10 and somehow the Defense got the upper hand."

11 It is clear from the evidence that the Government

12 engaged in intentional misconduct which violated Brady, the

13 Federal Rules of Criminal Procedure and the Constitution, not

14 to mention a few Court orders.

15 And while there could have been some mistakes in

16 there, most of it was clear, intentional, devious and willful.

17 Specifically, as you said, the Government failed to produce

18 Brady that was clearly Brady. Sometimes they redacted Brady.

19 Sometimes they did a reinterview so as to hide the Brady

20 rather than to provide it.

21 Once it was even so bold that the testimony -- the

22 record was -- the evidence was, "If Ted Stevens had been given

23 a bill," says Bill Allen, "he would have paid it, and then by

24 the time we got it, they inserted a 'not paid' into it." And

25 they introduced that famous business record for reliability, Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 24 of 50 24

1 Exhibit 177, showing that the total cost was $188,000;

2 presented it to the Court and argued it repeatedly, all the

3 while sitting in this courtroom knowing what Bill Allen had to

4 say on April 15 th , 2008.

5 But to me, the venality, indeed potential

6 criminality can be seen most clearly in the creation of the

7 CYA testimony, to counter a document that the Government was

8 having difficulty dealing with. And trial lawyers, of course,

9 always say, "Your Honor, it went to the heart of the matter,"

10 but if there was ever a center of the very heart of the

11 matter, it was that document. It was the core of the Defense.

12 It should have been read literally by the jury and the jury

13 should have seen in that the good man Ted Stevens, instead of

14 the Government creating testimony in that statement by Bill

15 Allen so they could argue that this was a coverup created in

16 October 6, 2002, six years earlier before the trial. But

17 those lies had its effect and they were able to negate, cause

18 question in the jurors' minds about this crucial document.

19 Your Honor, I think the Court will recall that

20 sometimes we, in the heat of passion, don't mince words, and

21 very shortly after Mr. Allen made those statements about

22 "cover your ass," I don't usually do this, but I called him a

23 liar on that statement. He was a liar. We were so convinced

24 that it was a recent fabrication because of the inconsistent

25 statements, because of the Government's inability or not Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 25 of 50 25

1 wanting to go and ask Mr. Persons whether in fact it was said.

2 They had a duty to provide these materials, but of

3 course, how could we even think for a moment that they

4 would -- original trial team would have produced this

5 particular Brady that the new trial lawyers produced since

6 they had created false testimony? I guess it's expecting too

7 much to produce the Brady that would allow us to show that the

8 testimony they just put on was perjurous.

9 I don't think there's anything worse than our

10 Government presenting false evidence, manufacturing evidence

11 to suit the occasion in order to get the upper hand. They

12 dealt with the witness like Bill Allen, of course, who was

13 well rewarded for his testimony and was susceptible to

14 pushing. His first reward was they wouldn't indict his

15 children if he testified. The second reward was that,

16 although there was no promise made, they wouldn't indict his

17 company, which had no defense, but they didn't indict his

18 company so he could sell it for hundreds of millions of

19 dollars.

20 There was even a holdback. You may remember that he

21 had to be cooperative with the Government or the company

22 wouldn't have to pay him his next tranche of millions of

23 dollars, which was held back pending his cooperation. He was

24 able to pushed. He was susceptible, as many witnesses are who

25 are rewarded, not to mention the possible benefits that could Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 26 of 50 26

1 come to him in a reduction of sentence.

2 But, you know, all of this is put in the context of

3 what we all live through in the courtroom, some of which the

4 Court just mentioned. The efforts that were made by the Court

5 and the Defense in this case to obtain discovery and Brady

6 material are unprecedented in my experience. We've -- of the

7 thousands of hours we spent defending Ted Stevens, I would

8 estimate that 25 percent to a third of the time was focused on

9 things we shouldn't have had to ask for, discovery and Brady

10 material time and time again.

11 And the insidious nature of that wrongdoing, the

12 hiding of that meeting and the substance of that meeting has

13 to be in the context of the fact that frequently they would be

14 reminded of their duties by the Court and they'd be reminded

15 of their obligations by our repeated jackhammer-like request

16 for Brady.

17 But they countered all of our best efforts, the

18 Court's and ours, by misrepresentations, outright lies. They

19 repeatedly told you and they told us that they had, oh -- they

20 knew their Brady obligations. The discovery, when you line --

21 the chronology, when you line it all up, is pretty stunning.

22 Ted Stevens was indicted on July 29 th . On that very day I

23 asked for expedited discovery and for Brady information. I

24 asked that it be provided immediately.

25 On July 31 st , 2008, the Court said, "The Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 27 of 50 27

1 Government is prepared to give you everything that the

2 Government believes is discoverable at this time; is that

3 right?", you said to the Government? And they responded in

4 the affirmative.

5 On August 1, 2008, we sent a discovery letter

6 requesting Brady material and material necessary to the

7 preparation of the defense. A prosecutor who was present

8 among the four at that April 15 th , 2000 meeting held himself

9 out as being more than cooperative saying that they'd given

10 the Defense 500 gigabytes' worth of documents.

11 On August 21 st , 2008, a prosecutor said, quote, we

12 understand our Brady and Giglio obligations and we will

13 continue to provide you information pursuant to these

14 obligations.

15 On August 27 th we sent a letter to the prosecutor

16 asking for Brady material.

17 On September 5, the Government represented it was

18 aware of its Brady obligations and had complied. In a phone

19 conference that the Court conducted on September 5, I said to

20 the Court and all assembled, quote, I'm always uneasy when the

21 Government says, quote, we have no additional documents.

22 Brady does not require documents. It requires information in

23 matters like this. FBI agents go and make such inquiries and

24 they don't write notes but they have information. And further

25 said that we're very troubled, two weeks before trial starts, Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 28 of 50 28

1 that we're getting Brady dribbled in.

2 The Government, through one of the attorneys present

3 at the April 15 th meeting, knowing they were keeping this

4 information from us, says, "We have made substantial Brady

5 disclosures. We provided Brady/Giglio letter, we've attached

6 a number of attachments."

7 "It's not accurate," says that same prosecutor, "to

8 say the Government is sitting on this treasure trove of Brady

9 material that we're essentially not passing onto the

10 Defendant." As it turned out, it took these gentlemen to find

11 the treasure trove after four to five weeks of involvement

12 into the case.

13 Prosecutor says, "We've represented to the Defense

14 that we're continuing to go back and we'll go back again, and

15 have. If there's anything else to turn over, we'll turn it

16 over," and it went on and on and on.

17 On September 9 th the Government e-mails a Brady

18 letter, represents that it completed its obligations.

19 On September 10 th we asked for more Brady , and

20 then in the most extraordinary words, the Court gets involved

21 and makes some statements that are stunning.

22 Before -- just before that, on September 29 th , a

23 prosecutor who was also in the meeting of April 15 th said,

24 "We're happy again to show the Court our Brady disclosure

25 letter in this case. We went and argued to great lengths to Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 29 of 50 29

1 anticipate what we thought would be legitimate stuff. We

2 produced stuff in Brady that we normally wouldn't. I mean,

3 not normally, but we produced things, in our view, were very,

4 very fulsome, for lack of a better word, and we're distressed

5 that we're being accused of this, namely, not giving Brady.

6 We believe that we've disclosed exactly what we need to

7 disclose."

8 But, of course, as the Court knows, they hadn't

9 because the Court caught them. On October 1 st , Wednesday,

10 at 11:30 p.m. the Government e-mails a Brady letter to us.

11 This relates to the testimony of Agent Pluta in the 302, and

12 the Court says on October 2 nd about their failure to produce

13 it earlier, "If it wasn't intentional, it was gross negligence

14 on the part of the Government," and the Government agreed.

15 "Yes, we agree it's Brady, we agree."

16 The Court notes then that Defense lawyers could have

17 had a field day in opening statements. He, meaning the

18 Defense, could have used these statements, and said, "Do you

19 know what, the Government's own record showed that its client

20 wanted to pay the bills or would have paid the bills. They

21 can't do that now."

22 And the Court says, "I've been talking about Brady

23 from Day One."

24 Government says, "Yes, sir."

25 The Court says, "The Defense raised it on Day One." Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 30 of 50 30

1 The Government agrees.

2 The Court said, "You're the gatekeeper for favorable

3 information."

4 And the Government agrees.

5 He told them they can't hide the ball, and the

6 Government agrees.

7 And then the Court said these words, which I think

8 are the most prophetic and important in the whole case, quote,

9 Because the integrity of our system of justice depends upon

10 fair-minded prosecutors abiding by the oath they've taken to

11 apply the law and to follow the law.

12 That's what it's all about. And as hard as you try

13 to make it fair and as hard as we try to present issues so you

14 can make it fair, we are no match for corrupt prosecutors if

15 they want to hide information known only to them or they want

16 to present false testimony.

17 The final disclosures. It's amazing for me to think

18 of the chronology. If you start with April 15 th , 2008, the

19 meeting at which four prosecutors and one FBI agent was

20 involved, the next key date is July 29 th when Ted Stevens

21 was indicted. The trial started in September and the verdict

22 was returned on October 27 th . These gentlemen weren't

23 appointed until February 16 th , 2009, but they managed to

24 find these key documents in four or five weeks, and the minute

25 they found them, they presented them; one on March 24, the Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 31 of 50 31

1 next day, March 25, and the third document on the 26 th ,

2 received by us and the Court seven months late after an

3 unlawful verdict.

4 We were close to never getting it, never having seen

5 it; that's the frightening part. And I believe the reason

6 that we were able to get these materials are only two, the

7 repeated warnings by the Court to the original trial team

8 about their obligations so that when these new lawyers saw

9 those materials, which they produced to us, they knew it was

10 the end. They knew they couldn't come back to Court one more

11 time and say it was inadvertent or a mistake or unimportant.

12 Even they knew, with so much less knowledge of the case than

13 those of us who lived through it, that this was crucial.

14 The second reason. We were lucky enough to have the

15 original prosecutors replaced, lucky, because who among us

16 would say that one day the original trial team would get

17 religion and turn over the documents which would cause the

18 case they prosecuted to be dismissed. But for honest

19 prosecutors, the system wouldn't work. But for a judge that

20 pressed harder than I'd ever seen the judge in all of my years

21 press for discovery, press for Brady obligations, we would be

22 meandering through our motions. Hopefully they were

23 sufficient, hopefully the Court would have thrown it out based

24 on what it had seen before this discovery, but who knows.

25 Today, that's speculation. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 32 of 50 32

1 I'll tell you what my reaction was when I saw these

2 three documents. You'd think after a long hard fight it would

3 be jubilation, that we'd be high-fiving each other around the

4 office somehow, we finally got them, we were right. That was

5 not the reaction. My reaction was sick. I was sick in my

6 stomach. I could feel this. How could they do this? How

7 could they abandon their responsibilities? How could they

8 take on a very decent man like Ted Stevens, who happened to be

9 a United States senator, and do this?

10 It was revulsion. The revulsion turned to anger,

11 and I must admit that I was in a silent rage for a number of

12 days and I finally picked up the phone and I called

13 Mr. O'Brien and I said I would love to come over and talk to

14 you about it because I believed, when I saw it, as did other

15 Defense lawyers, that this was the end of the case and I was

16 going to have a meeting in his office with these gentlemen and

17 ask them to dismiss the case. And I had every reason to

18 believe they would.

19 The meeting was scheduled for 10:00 o'clock on

20 April 1 st . I was so upset by what I'd seen that on that

21 morning I was in the office at 4:00 a.m. to make sure I didn't

22 miss anything, that I could tell them everything because I

23 didn't know what they knew about the case. How could they

24 know about the case? They'd been on it for such a short time.

25 And I was doubting my ability in some respects to tell them Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 33 of 50 33

1 how important it was, how key this information was, but Paul

2 O'Brien called me at 9:00 o'clock, one hour before our

3 scheduled meeting, and said that the Attorney General would

4 dismiss the case and they'd filed the motion, which you have

5 seen. It turns out they didn't need to hear from me. They

6 knew, when they saw it, the importance of the information,

7 even though they'd been in the case four or five or six weeks.

8 The fact of the matter is, Your Honor, this verdict

9 against Ted Stevens of October 27, which the whole world

10 reports as having convicted Ted Stevens, I know maybe it's

11 legalese, but there's no conviction in this case. There's

12 none. There was a verdict returned, it was unlawful. There

13 never is a conviction against a citizen until a judge reviews

14 pretrial motions, makes rulings and signs a judgment.

15 So if I had one wish, I know it couldn't -- won't be

16 granted, but that I never see again anybody report that Ted

17 Stevens was convicted, because he was not. The verdict

18 returned against him was procured by a bunch of prosecutors

19 who ignored the Federal Rules, ignored Court orders, ignored

20 Brady obligations, ignored the ethics of their profession,

21 ignored the United States Constitution and ignored some

22 applicable criminal statutes that may apply to their conduct.

23 Right here in the Capital of the United States of America, in

24 one of the final district courts and assembly of judges we

25 have, with a judge who did everything possible, who was on the Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 34 of 50 34

1 edge of his chair skeptical at times, who reprimanded the

2 prosecutors at times, with Defense lawyers that work as hard

3 as they can and as effectively as they can based on long

4 experience, and yet a citizen is convicted wrongfully,

5 convicted wrongfully. A jury is returned -- the wrong verdict

6 right here. Obtained, the evidence suggests, by the illegal,

7 improper conduct.

8 And, remarkably, one of the most remarkable things

9 is that despite this court's many admonitions to the

10 Government throughout this process, some amounting to virtual

11 public censures for their conduct, an Acting Assistant

12 Attorney General of the Criminal Division of the United States

13 Department of Justice goes out to the steps after that verdict

14 is returned, gathers the prosecutors in a family photo, and

15 says to the world, "The Department of Justice is proud of this

16 team."

17 I'm not suggesting he knew anything about the

18 misconduct, but if he just read the newspapers, how could the

19 leading attorney of the Department of Justice over the

20 criminal division make such a statement? I suggest to you

21 that that says it all. There is the failure of leadership.

22 It's prosecute to win at all costs, and wrongdoing can

23 flourish when that's the attitude of a leader.

24 There's a great deal we still don't know today. The

25 Court doesn't know; we don't know. Our jobs are basically Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 35 of 50 35

1 done. There's no question that the Attorney General will

2 conduct an appropriate investigation.

3 For example, we don't know when the CYA statement

4 was created. We don't know who created it; how it went about

5 their putting on false testimony. We certainly do know that

6 there were five people present at that April 15 th , 2008

7 session with Bill Allen that knew it was false.

8 In fairness, more fairness than they accorded to Ted

9 Stevens, I want to say that some prosecutors on the team may

10 not have known about that meeting. The lead prosecutor was

11 not present at the April 15 th , 2008 meeting, and I don't

12 know whether that person was ever informed about the Brady

13 material. I don't know whether that particular prosecutor

14 ever saw the notes of the two prosecutors.

15 It's also interesting to note that there are only

16 two sets of notes, but there were five people present. Did

17 the other three not take notes? Not that it would matter;

18 it's still Brady.

19 You see, what happened that -- here in this

20 courtroom, I think, is easily explained. They indicted a

21 sitting United States senator who is certain to be elected.

22 If there's any certainty in politics, the certainty is that

23 Ted Stevens would have been elected to another term in office

24 after a distinguished 40 years of serving Alaskans. The fact

25 of the matter is that along the way they decided they had to Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 36 of 50 36

1 win, because a loss in such circumstance blights a career and

2 maybe even ruins it, and so they abandoned all decency to win

3 a conviction, as is sometimes, I've seen, the theme of some,

4 "get a conviction, we'll worry about the post-trial motions,

5 we'll worry about the appeals later because there's so little

6 chance often that wrongs can be remedied."

7 So the fear of loss drove them to do what they did.

8 The chances of being caught were small, even with a diligent

9 and skeptical judge and even with a vigorous defense.

10 Ted Stevens believed in his innocence. That's why

11 at age 84 he was willing to submit himself to a court, to the

12 process and to jurors. He believed so much in his innocence

13 that he asked for a speedy trial, and we Defense lawyers, who

14 don't generally like speedy trials, agreed.

15 He was indicted a few months before the election,

16 but what neither he nor I nor you contemplated was that the

17 Government would act unlawfully. What happened here today,

18 and the Government's coming to the podium is very rare indeed.

19 Thank the Lord that I've seen firsthand such misconduct only

20 on one other occasion in the U.S. v. Omni case cited here

21 often where I was the senior trial lawyer 20 some years ago.

22 It's an acknowledgment of the grievous wrong done to Ted

23 Stevens.

24 However, as we all know, nothing really can be done

25 that will ever rectify the wrong. Nothing can be done to give Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 37 of 50 37

1 the citizens of Alaska the senator that they surely would have

2 elected. Nothing can be done to take away the pain, the

3 suffering, the anguish of a person that was brought into the

4 courtroom and vilified as he was. Nothing takes away the pain

5 of his family.

6 You work to assure fairness, and certainly we worked

7 as hard as we could to present the issues. The truth of the

8 matter is, until now, it wasn't good enough, because as you

9 said in the quote I made earlier, if the Government is not

10 honest, it can trump even the best efforts of those of us who

11 work in the system, devote life of public service of those who

12 proudly call themselves defense lawyers.

13 The Government cannot do much to make amends, I

14 guess, except to say you're sorry, and that, from Paul

15 O'Brien, is appreciated. He did say that. Sorry we put you

16 through an unlawful proceeding; sorry the Government lied,

17 cheated, violated the law in an effort to convict you; sorry

18 it cost you months of your life at the end of an extraordinary

19 life; sorry prosecutors were dishonest, unethical, caused you

20 to lose an election after you served for 40 years; sorry you

21 were disgraced by a verdict that should never have been that

22 was unlawful; sorry. Never, never, sufficient.

23 I suppose if there is a little bit of Pollyanna in

24 all of us and if there is one thing that I think Ted Stevens

25 would wish for and I would wish for and all of the young Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 38 of 50 38

1 lawyers that worked on the Defense side of this case, is that

2 maybe this case will lead to the new sensitivity about

3 obligations of Government prosecutors, of FBI agents, a new

4 sensitivity to Brady. Every prosecutor, every Government

5 agent would know that failure to do your duty will lead to

6 consequences under Stevens.

7 And if they know that and they think about it and

8 they go to their office tomorrow and decide, shall I give this

9 or that, maybe it will prompt those to think of what happened

10 here in this district court to do their duty and maybe someone

11 else will be spared the anguish imposed upon this very decent

12 man.

13 So, Your Honor, my last words, I guess, to you in

14 this proceeding are to, yes, please grant the Government's

15 motion, set aside the verdict, dismiss the case with prejudice

16 and do it in a way that makes clear to the whole world, the

17 fact that he has not been convicted of any crime, that no

18 judgment was entered, that the verdict was unlawful and will

19 be set aside.

20 As for the Defense, our job is done. Thank you.

21 THE COURT: Thank you, Counsel.

22 MR. SULLIVAN: Your Honor, Ted Stevens would like,

23 at an appropriate time today, to make a few comments, whenever

24 you say.

25 THE COURT: All right. Thank you. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 39 of 50 39

1 (PAUSE.)

2 THE COURT: All right. Senator.

3 SENATOR STEVENS: Thank you very much, Your Honor,

4 for the privilege of being able to address the Court. I'm

5 deeply grateful for your hard work and all that you've done

6 throughout this case as well as the dedication of your

7 chambers staff and the courthouse staff. I know that you and

8 they have worked many late nights and weekends and holidays

9 during this case; therein your dedication to public service is

10 an inspiration to me, and without your experience and

11 vigilance, the truth would never have been known.

12 And, of course, I'm deeply indebted to the Defense

13 team, Williams & Connelly, by Brendan Sullivan, who expressed

14 his points of view, and just thank God that they were willing

15 to take on this case.

16 And, of course, I'm grateful to this team here that

17 took over, these distinguished attorneys that took over this

18 case, and I really was amazed that they reacted so quickly to

19 the evidence that was presented to them and they presented to

20 the Defense team. It really is -- really is an indication of

21 a great competence. And I don't know if you noticed and I

22 noticed that in the first statement they made to the Defense

23 team was that the team might want to amend the motion to

24 dismiss when they read the material that these gentlemen had

25 read. That's real competence, I think, Your Honor. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 40 of 50 40

1 I'm full of thanks this morning.

2 THE COURT: That did not go unnoticed by the Court

3 as well.

4 SENATOR STEVENS: Yes. I'm full of giving thanks

5 this morning, but I do also thank the Alaskans. As I traveled

6 throughout the state, Your Honor, almost every Alaskan said,

7 "I've said a prayer for you, Ted," and that was very

8 meaningful to me. I'm blessed to have been able to serve

9 Alaska for 40 years as United States senator, and I, of

10 course, am grateful to my senate colleagues and former staff

11 and close friends who have supported me. Many of those

12 friends attended these proceedings every day and some of them

13 are here again this morning. Their friendship has been a

14 humbling source of strength to me through this ordeal.

15 I'm showing that I really don't have the words to

16 express the measure of my gratitude to all concerned, but

17 particularly to my wife Catherine who stood by me through this

18 whole process, and my children, my entire family, three of my

19 daughters are here this morning, for their unwavering support

20 in these troubled times, I'm -- I'm really fortunate and I

21 love each one of them.

22 But, Your Honor, I want to be brief, but I say that

23 I've had a long career. I've served the United States for

24 many years. I served as a pilot in World War II in China. I

25 served as a United States Attorney in the Territory of Alaska. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 41 of 50 41

1 I was solicitor of the Department of Interior, and I've been a

2 senator for 40 years. It was my great honor to be a member of

3 the Bicentennial Commission on the Constitution of the United

4 States with Warren Burger, Chief Justice Warren Burger. I've

5 been deeply committed to the rule of law and the constitution,

6 and I support it to the best of my ability.

7 Until recently, my faith in the criminal system,

8 particularly the judicial system was unwavering, but what some

9 members of the prosecution team did nearly destroyed that

10 faith. Their conduct has consequences for me that they will

11 never realize and can never be reversed. But today, today,

12 Your Honor, through your leadership and persistence and

13 commitment to the rule of law, my faith has been restored, and

14 I really can never thank you enough because obviously I

15 watched it every day.

16 Your actions gave me new hope that others may be

17 spared from similar miscarriages of justice, and it is my hope

18 that when the dust settles I may be able to encourage the

19 enactment of a legislation to reform the laws relating to the

20 responsibilities and duties of those entrusted with the solemn

21 task of enforcing criminal laws.

22 I deeply appreciate your service. Thank you.

23 THE COURT: Thank you, sir.

24 Mr. Sullivan, you got away from the lectern without

25 me asking you one question. I had one question to ask you. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 42 of 50 42

1 On October the 28 th , the day after the verdicts

2 were returned, you delivered a 16-page letter to then Attorney

3 General Michael Mukasey, detailing at length many of the

4 events recited today and asking the Attorney General to

5 commence a formal investigation into the prosecutorial

6 misconduct in this case. Did you ever receive a response?

7 MR. SULLIVAN: Your Honor, I had actually sent three

8 letters to the Attorney General of the United States,

9 Mr. Mukasey. I never received an acknowledgment that they

10 were even received in the office. I received no word back.

11 I made an effort in those three letters to lay out

12 our concerns at the time. To my knowledge, I don't know what

13 he did, if anything.

14 THE COURT: All right. Thank you. Shocking.

15 Let me just say this: I have a few additional brief

16 remarks to make before I focus on my remaining substantive

17 remarks. I also want to give credit where credit is due.

18 First and foremost, I want to recognize someone whom

19 I often introduce as my brilliant lawyer, Addy Schmitt, and

20 she is indeed great and she was with me every step of the way,

21 and we're talking about 15-, 18-hour days and longer and

22 weekends and holidays and everything else that everyone has

23 mentioned, and I'm deeply indebted to her. I could not

24 have -- I would not have been in a position to discharge my

25 judicial responsibilities in the manner in which they were Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 43 of 50 43

1 discharged without her expert assistance and her brilliance,

2 and I'm deeply appreciative.

3 Carol Votteler has always been there for the past 15

4 years, my courtroom deputy. Catalina and all the court

5 reporters, I could not overlook Jenna Gatski and Shelly Snook

6 and their sensitivity to the media and the media's desire to

7 be informed of everything that's going on, and they were also

8 there every step of the way and invaluable members of the

9 team. John Cramer, our technical adviser and his crew.

10 Angela Caesar and all of her administrative assistance in

11 coordinating courtroom deputies to assist as appropriate. The

12 members of the juror's staff, Joe Burgess -- and this is

13 always risky because you know you're going to leave someone

14 out -- Joe Burgess and his expert assistance.

15 A special thanks to the United States Marshal's

16 Service. I can't talk on the public record about everything

17 that the Marshal's Service did, but they did a lot, and you

18 know I appreciate everything you did and a lot of other folks

19 appreciate everything that you did in this case and everything

20 that you always do.

21 I don't want to overlook the other members of my

22 staff. We always have brilliant interns and we've had

23 brilliant -- other brilliant attorneys in the office over the

24 past six months or so and they also were extremely helpful in

25 assisting the Court in discharging the Court's myriads of Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 44 of 50 44

1 responsibilities. So I just wanted to also acknowledge

2 everyone, and the entire court family, in case I overlooked

3 anyone.

4 Before focusing on the pending motion, there are a

5 few additional matters for the Court to address. First, the

6 parties will recall that an issue arose during the trial

7 regarding Mr. Robert Bundy, Bill Allen's attorney, and what

8 the Court was led to believe may have been Mr. Bundy's

9 repeated signaling to his client while his client was

10 testifying.

11 The Court intends to turn the information it has

12 related to that incident over to the United States Attorney's

13 office for the District of Columbia for its consideration and

14 will also refer the matter and Mr. Bundy to this court's

15 committee on grievances.

16 Second, an administrative matter, and that is the

17 unsealing of the bench conferences. In that regard, I would

18 like to express my sincere appreciation to both sides for

19 their efforts to review those transcripts over the weekend.

20 The Court regrets the inconvenience and recognizes that it was

21 an extremely frustrating process for everyone involved,

22 including the Court.

23 At this point I'll just inquire -- have the parties

24 reviewed all of the bench conferences?

25 MR. O'BRIEN: Your Honor, we've reviewed. We have Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 45 of 50 45

1 no objection to the unsealing of the bench conferences.

2 THE COURT: All right. Defense counsel?

3 MR. CARY: Your Honor, Defense has reviewed them and

4 we have no objection as well, and we filed a pleading to that

5 effect this morning.

6 THE COURT: All right. That's fine. Therefore, the

7 Court will direct that the bench conferences be unsealed and

8 posted on the public docket. There is one off-the-record

9 discussion that the Court held a month or two ago, and that

10 will remain sealed.

11 Finally, the Court has repeatedly been told that the

12 office of professional responsibility at the Department of

13 Justice is conducting an investigation into the investigation

14 and prosecution in this case. The Court first heard about an

15 investigation on October the 2nd during the trial when a

16 member of the prosecution team informed the Court that the

17 prosecution team had, in her words, self-reported,

18 quote/unquote, to the Office of Professional Responsibility

19 because the Court had found a Brady violation.

20 That was six months ago. The Court next heard about

21 the OPR investigation when the Government assured the Court it

22 need not take any action based on the Joy complaint because

23 OPR was conducting a thorough investigation. That was four

24 months ago. And yet, and to date, the silence has been

25 deafening. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 46 of 50 46

1 Similarly, the Defense tells us just moments ago

2 they received no response to their numerous letters to former

3 Attorney General Mukasey urging him to commence a formal

4 investigation. Shocking but not surprising.

5 The Court looks forward to receiving the results of

6 the OPR investigation whenever that investigation concludes.

7 But the events and allegations in this case are too serious

8 and too numerous to be left to an internal investigation that

9 has no outside accountability. This court has an independent

10 obligation to ensure that any misconduct is fully investigated

11 and addressed in an appropriate public forum.

12 Accordingly, the Court shall commence criminal

13 contempt proceedings against the original prosecution team,

14 including William Welch, Brenda Morris, Joseph Bottini,

15 Nicholas Marsh, James Goeke and Edward Sullivan pursuant to

16 the Court's authority under Federal Rule of Criminal Procedure

17 42, based on failures of those prosecutors to comply with the

18 Court's numerous orders and potential obstruction of justice.

19 Moreover, as provided by that Rule and because the

20 subject attorneys are employed by the Department of Justice,

21 the Court finds that the interest of justice requires the

22 appointment of a non-Government disinterested attorney to

23 prosecute that matter. Therefore, the Court will appoint

24 attorney Henry F. Schuelke, S-c-h-u-e-l-k-e, III, as

25 prosecutor. Mr. Schuelke is a partner at the D.C. law firm, Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 47 of 50 47

1 Janis, Schuelke & Wechsler, and enjoys an outstanding local

2 and national reputation for fairness, integrity and sound

3 judgment.

4 Mr. Schuelke has served as a military judge in the

5 United States Army judiciary. He also served for seven years

6 as an Assistant United States Attorney for the District of

7 Columbia, including three years as Executive Assistant United

8 States Attorney. He has also serve as special counsel for the

9 United States Senate Committee on Foreign Relations and

10 Special Counsel to the United States Senate Select Committee

11 on Ethics. He currently serves as Special Counsel to the

12 District of Columbia Commission on Judicial Disabilities and

13 Tenure.

14 Mr. Schuelke will investigate this matter with a

15 view toward filing an order to show cause, if appropriate.

16 Let me stress that I have not, by any means, prejudged these

17 attorneys or their culpability. I do not take this decision

18 lightly and I certainly hope the record will ultimately find

19 no intentional obstruction of justice.

20 Nevertheless, the Court has an obligation to

21 determine what happened here and respond appropriately, and I

22 intend to do so. To that end, the Court anticipates and

23 expects the United States' full cooperation in any further

24 proceedings, and indeed the Court will direct the United

25 States Government to cooperate fully with Mr. Schuelke, Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 48 of 50 48

1 including providing him access to investigative files and

2 witnesses.

3 Now, at this point, the Court will focus on the

4 Government's motion to set aside the verdict and dismiss the

5 indictment with prejudice. The Court has the highest regard

6 for Attorney General Eric Holder. The Court had the honor of

7 serving on the Superior Court with him briefly and the Court

8 knows that Eric Holder has earned his impeccable reputation as

9 a lawyer firmly committed to fairness, integrity and the rule

10 of law.

11 Accordingly, the Court respects Mr. Holder's

12 decision to seek dismissal of this case in view of the

13 totality of circumstances surrounding this investigation and

14 prosecution, and the Court concurs with the Attorney General

15 that it is in the interest of justice that this verdict be set

16 aside and the indictment be dismissed with prejudice.

17 Accordingly, the Court grants the Government's

18 motion and dismisses this case with prejudice and indeed with

19 no prejudice to Rule 42 proceedings, as previously announced

20 by the Court. An appropriate order shall be entered today.

21 I actually have no further remarks at this point.

22 Before I recess, though, it's been a long hearing, a lot has

23 been said by everyone, including the Court. I want to take a

24 five-minute recess just to make sure that I have not

25 overlooked anything that needs to be said this morning. The Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 49 of 50 49

1 Court will stand in recess for five minutes. There's no need

2 for those assembled to stand, and I'll take no more than a

3 five-minute recess.

4 THE DEPUTY CLERK: This honorable court now stands

5 in recess.

6 (A BRIEF RECESS WAS TAKEN.)

7 THE DEPUTY CLERK: Please remain seated.

8 THE COURT: Mr. Sullivan, you raised a good point

9 about the manner in which the case should be dismissed, and

10 I'm going to afford Defense counsel an opportunity to propose

11 language and an appropriate order for the Court's

12 consideration. I'm not guaranteeing that I'll agree with it,

13 but I'm certainly going to afford you an opportunity to

14 suggest language that the Defense team believes should be part

15 and parcel of an appropriate order of dismissal.

16 I encourage you to share your proposed order with

17 Government counsel. To the extent you can agree, that's fine.

18 If you can't agree, that's fine, I respect that, but I would

19 be remiss, since you raised the point, not to afford you an

20 opportunity to suggest some appropriate language for the

21 Court's consideration in an order.

22 Let me inquire of the prosecution team, do you have

23 any further comments you would like to make?

24 MR. O'BRIEN: No, thank you, Your Honor.

25 THE COURT: And, again, I appreciate your efforts. Case 1:08-cr-00231-EGS Document 374 Filed 04/07/09 Page 50 of 50 50

1 It's absolutely amazing that you were able to -- you, the

2 team, was able to get a grip on this case. All the evidence,

3 the theories, recognize the significance of the April 15 th

4 note, and that's truly remarkable, but I should not be

5 surprised given the caliber of expertise that you bring to the

6 Court. It's been a pleasure to have you here. I recognize

7 the circumstances were not those which you relished, but your

8 presence and your efforts have certainly been consistent with

9 all this court ever wanted to do from Day One, which was to

10 afford the Defendant, like any other defendant, and not

11 because of his station in life, like anyone who comes before

12 this court, all this court ever wanted to do was to afford the

13 Defendant his fair day in court, and that day has arrived.

14 I have nothing further to say. The Court will stand

15 in recess. There is no need to stand. Everyone have a

16 wonderful day. Thank you.

17 THE DEPUTY CLERK: This honorable court now stands

18 in recess.

19 (PROCEEDINGS END AT 11:48 A.M.) *-*-*-* 20

21 CERTIFICATE OF REPORTER I, Catalina Kerr, certify that the foregoing is a 22 correct transcript from the record of proceedings in the above-entitled matter. 23 ______24 Catalina Kerr Date