DISCOVERY NEW ARTICLE 245 - Effective, January 1, 2020
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DISCOVERY
NEW ARTICLE 245
Effective, January 1, 2020Repeal of the old blindfold law
NEW ARTICLE 245
Effective, January 1, 2020
This Photo by Unknown Author is licensed under CC BY-NC-NDPREPARING A DEFENSE
Bill of
investigations
discovery particulars
subpoenas
rosario
Gissendaner
motionsSUMMARY Early (15 days) & Automatic (no omnibus motions) Expanded discovery, including witness names & contact information Def. statements before giving Grand Jury testimony Discovery before expiration of plea offers Expansion of use of subpoenas Protective Orders –notifications if redactions occur Sanctions Speedy trial Preserve evidence/Access Orders
EARLY & AUTOMATIC DISCOVERY
DISCOVERY MUST BE TURNED OVER AS SOON AS
PRACTICABLE BUT NO LATER THAN 15 DAYS FROM THE
CRIMINAL COURT ARRAIGNMENT
– No need to wait until a trial date is set.
– If it is especially voluminous or not in DA’s ACTUAL
possesion, there is an automatic 30 day extension
DISCOVERY IS AUTOMATIC
– There is no longer a need to file a motion.
§245.10
1. (a) The prosecution shall perform its initial
discovery obligations under subdivision one of
section 245.20 of this article as soon as
practicable but not later than fifteen calendar days
after the defendant's arraignment on an indictment,
superior court information, prosecutor's
information, information, simplified information,
misdemeanor complaint or felony complaint….NEW ARTICLE 245
The 2nd Department recently highlighted how limited
our current discovery rule is. People v. Easley, 96
N.Y.S.3d 320 (2nd Dept. 2019). Currently, we are LIMITED
to only 11 items and if they are not in the prosecutor’s
control, we are not entitled to it.
• Also, under current CPL §240.44 & 240.45 (the Rosario rule), we
are limited to witness statements only if the DA intends to call
that witness at hearing or trial.
• THE NEW LAW IS DESIGNED FOR AS MUCH DISCOVERY AS
POSSIBLE:
– There are at least 21 specified items but it is not LIMITED to this expansive list
– unlike our current statute.SEEMINGLY MINOR WORD CHANGES Not just RELEVANT material – because who usually decides what is relevant? §245.20(1) “all items and information that relate to the subject matter of the case …” § 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, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to: So, even if the “possession, custody and control” language (of restrictive case law) has not changed … the discoverable list is far more expansive AND there is a presumption in favor of discovery. CPL §245.20(7).
,
ALSO statements
We are entitled to the grand jury testimony of any and
all witnesses who testify in the grand jury, new CPL §
245.20(1)(b).
o Compare, current §240.20(b) which requires only the GJ
testimony of the defendant or co-defendant AND §240.44 which
requires only “statements” for witness that the DA intends to call.
We are also entitled to any statements of any and all
persons (cf. “witnesses”) who have evidence or
information relevant to the offense or crime, new CPL
§245.20(1)(e).
o Sometimes (often?) the DA does not know that a person has
information that could be exculpatory or consistent with our
client’s defense.
o Sometimes a witness knows something that seems completely
trivial to the prosecution theory but could be key to our defense.TALK TO WITNESSES! This provision is IMPORTANT – We need to contact and speak to witnesses so that we can properly investigate the case. Note that we SHOULD automatically get contact information but we there was also an understanding that getting an email or a phone number may not be sufficient. After all, the witness may not answer an email or a telephone call. So, if all else fails, we will have to move to get the physical address of a witness. When we have witnesses and contact information, we will need to make every effort to contact and speak to these witnesses. These witnesses MAY have exculpatory information. • more on protective orders.
People v. Rong He, 2019 Slip Op. 07477 The People objected to defendant's pre-trial request for the direct disclosure of the witnesses' contact information, and instead offered to provide the witnesses with defense counsel's information. Yet this approach would not have provided defendant with adequate means for defense counsel to investigate those witnesses' statements. Furthermore, at the time of the request, the People did not bring forth any evidence that defendant presented a risk to the requested witnesses. Consequently, there was no apparent reason at that time for implementing protective measures or otherwise insulating the contact information from disclosure in the face of defendant's clear “right ... to discover a potentially material witness” (People v. Andre W., 44 N.Y.2d 179, 186, 404 N.Y.S.2d 578, 375 N.E.2d 758 [1978]; see also CPL 240.50[1] [allowing the issuance of a protective order upon a showing of “good cause,” including a “substantial risk of physical harm” or “intimidation”] ). Accordingly, under the circumstances of this case, the People's refusal to disclose the contact information, or to provide any means for defense counsel to contact the witnesses other than through the prosecution itself, is tantamount to suppression of the requested information • People v. Rong He, No. 75, 2019 WL 5225208, at *1 (N.Y. Oct. 17, 2019)
EXPANSIVE COMPLETE DISCOVERY
ANOTHER IMPORTANT CHANGE: if the DA says he/she does not have “possession, custody
or control” of the discoverable item, SUBPOENAS can be issued and the new law and an
amendment to the CPL about subpoenas are designed to make it easier to exercise that
option.
• subpoenas are authorized under new §245.20(1)(j) for scientific discovery.
• Making a motion to gain access to a crime scene also should not “prejudice” the
ability to obtain or issue a subpoena. New CPL §245.30(2). (more later on
accessing/preserving a crime scene)
• The amendments to CPL §610.20 are designed to make issuing and obtaining a
subpoena easier:
o The “day” or 24 hour rule for a subpoena duces tecum to a governmental
agency has been deleted. CPL §610.20 (reference to CPLR §2307 – for subpoenas
duces tecum - is now deleted).
o A subpoena duces tecum must still be so ordered (new language was added
because reference to CPLR 2307 is deleted), as well as the requirement to allow
for 3 days production.
o A KEY addition: the showing to sustain any subpoena under this section is that the
testimony or evidence sought is REASONABLY LIKELY TO BE RELEVANT AND
MATERIAL.Forensic Discovery Scientific discovery: In DWI cases – if there was a BAC reading – ask for: (s) “all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument. The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date.”
Forensic Discovery ALSO, in cases involving laboratories (NYC Police Lab (drugs, ballistics, etc) and OCME (DNA, autopsies, toxicologies)) – you are entitled to anything “relating to” and NOT just “relevant to” and, again, it is not limited to just what the prosecution intends to introduce at trial.
MORE ON DNA
There is also an existing and special section for DNA comparison orders (currently in §240.40) which
was given a new cite, new §245.45, with just a few word changes which will make a big difference
(e.g. in 3rd party culpability cases) The changes are in GREEN (my explanation is in red).
“Where property in the prosecution's possession, custody, or control consists of a
deoxyribonucleic acid ("DNA") profile obtained from probative biological material gathered in
connection with the investigation of the crime, or the defendant, or the prosecution of the
defendant, [previously, this information was just limited to the investigation of the
defendant only & NOT the crime] and the defendant establishes (a) that such profile complies
with federal bureau of investigation or state requirements, whichever are applicable and as
such requirements are applied to law enforcement agencies seeking a keyboard search or similar
comparison, and (b) that the data meets state DNA index system or national DNA index system
criteria as such criteria are applied to law enforcement agencies seeking such a keyboard
search or similar comparison, the court may, upon motion of a defendant against whom an
indictment, superior court information, prosecutor's information, information, or simplified
information is pending, order an entity that has access to the combined DNA index system or
its successor system to compare such DNA profile against DNA databanks by keyboard searches,
or a similar method that does not involve uploading, upon notice to both parties and the
entity required to perform the search, upon a showing by the defendant that such a comparison
is material to the presentation of his or her defense and that the request is reasonable. For
purposes of this section, a "keyboard search" shall mean a search of a DNA profile against the
databank in which the profile that is searched is not uploaded to or maintained in the
databank.”
THE LAST LINE OF 240.40 WAS INTENTIONALLY DELETED: Upon granting the motion pursuant to
paragraph (c) of this subdivision, the court shall, upon motion of the people showing such to
be material to the preparation of their case and that the request is reasonable, condition its
order of discovery by further directing discovery by the people of property, of the same kind
or character as that authorized to be inspected by the defendant, which he or she intends to
introduce at the trial. [We are entitled to more than just what the DA intends to introduce
at trial]BRADY AND OTHER HELPFUL INFORMATION
There are four sub-parts in §245.20(1) that require disclosure of Brady material AND
information that may be potentially helpful. It is slightly different from Judge DiFiore’s
“Order to Counsel in Criminal Cases” that we are now getting in arraignments.
Judge DiFiore’s order requires disclosure of the same material as in the new law - but
it does not have the words “tends to” in front of impeachment materials (not sure
why).
In comparison, the new law has “tends to” in front of everything that
– Negates guilt
– Reduces the degree or mitigate culpability
– Supports a potential defense
– Impeaches the credibility
– Undermines evidence of the defendant’s identity as the
perpetrator
– Provides a basis to suppress evidence
– Mitigates punishmentWHAT ARE IMPEACHMENT MATERIALS?
The new CPL 245.20(1)(k) does not specify what those materials that
“impeach” are but you can use the examples in Judge DiFiore’s order to
interpret this subpart:
– Benefits, promises, or inducements, express or tacit, made to a
witness by a law enforcement official or law enforcement victim
services agency
– A witness’s prior inconsistent statements, written or oral
– A witness’s prior convictions and uncharged criminal conduct
(note: the new CPL §245.20(1)(q) also adds any pending, open
criminal cases).
– Information that tends to show that a witness has a motive to
lie to inculpate the defendant, or a bias against the defendant or
in favor of the complainant or the prosecution
– Information that tends to show impairment of a witness’s ability to
perceive, recall, or recount relevant events, including impairment
resulting from mental or physical illness or substance abusePRACTICE POINTERS
Unlike Judge DiFiore’s
The list of discoverable the statute lets you obtain order, you should not
items is always anything that “tends to …”
“including but not
have to wait until 30
limited to” so that even days BEFORE trial on
if it’s not specified a felony OR 15 days
statutorily, you can look BEFORE trial on a
outside the statute to get misdemeanor.
more discovery.TANGIBLE EVIDENCE Why do we need a list of all tangible objects? Because “tangible objects” does not only mean contraband or incriminating evidence It can also be everyday innocent objects that help your case We also need to know whether any of those objects will be introduced as evidence so that we know whether to move to suppress E.g, if the perpetrator of the crime was wearing a UNIQUE hat and that same hat is found in your client's closet - you need to know about it and you need to move to suppress it.
Notice of TANGIBLE EVIDENCE
PROSECUTION MUST STATE
WHETHER ITEMS WERE
WHETHER
DISCOVERED PURSUANT
CONSTRUCTIVELY
TO A SEARCH or
POSSESSED OR ACTUALLY
ABANDONED
POSSESSED
WHETHER A PRESUMPTION
LOCATION
APPLIES
New VDF’s?MORE DISCOVERABLE ITEMS DWI discovery, §245.20(s) There are provisions about electronically stored information. §245.20(u)- • Which includes 4 subparts. It is worth reading. Electronic recordings (audio or video). §245.20(g) Search warrants. §245.20(n)
FLOW OF INFORMATION &
PRESERVING EVIDENCE
HOW TO PREVENT LATE DISCLOSURES OR ACCIDENTAL
DESTRUCTION OF EVIDENCE (e.g. 911’s)
The DA has an affirmative obligation to communicate with law
enforcement as early as possible so that any reports or other items
of discovery can be turned over to the DA and then you.
Here is what should happen:
– the ADA shall contact law enforcement.
– the a/o or lead detective shall tell the ADA that 911, radio
communications, body worn camera and other recordings
exist.
– and, the law enforcement agency (not just the a/o or lead
detective) shall make available ALL of its records and files.
– the ADA shall ensure preservation of these items.PRESERVATION & IMPORTANCE OF
INVESTIGATING
BUT, in case evidence is NOT within the possession or
control of the DA or law enforcement, you may still
need to obtain an order to preserve evidence. The
court must then expeditiously -
– order the preservation of that evidence
• the court can deny if it will cause significant
hardship to the owner BUT only IF the probative
value can be preserved by an alternative
means.
– OR, order the preservation of the crime sceneVISITING THE CRIME SCENE
Upon notice to the interested parties, The court must weight and balance:
court can also grant access to the crime
scene
Significant hardship to the owner of the
property
Motion after accusatory instrument filed.
* Prosecutors get to visit the crime scene, why The probative value of the evidence or crime
can’t we? scene
The risk that the defendant will be deprived
of evidence
Whether any alternative means to preserve
the evidence existThe importance of complete discovery
is found throughout new article 245.
• The statute’s mandates will have the force and effect of a court
order.
– E.g. it is criminal contempt under PL 215.50 if any person violates
a protective order (more on that later).
• Despite a protective order, discoverable parts shall be disclosed.
• The court has discretion to order the prosecution or any other
individual or agency to provide discovery - upon a showing that
the defendant is unable to obtain it without undue hardship
• There is a due diligence requirement imposed on DA’s.
• There is a presumption of openness. If any part of the statute is
subject to “interpretation,” there is a presumption in favor of
disclosure.
• The court can order discovery conferences to streamline the
discovery process and to work out any differences without having
to resort to litigation
• There is a continuing duty to disclose so that even if a certificate of
compliance has been filed, the parties must still turn over any
material that was not previously turned overGrand Jury discovery
Is your client entitled to any discovery before he or she testifies in the
grand jury?
Currently: no.
After January 1, 2020: yes (sort of):
o If your client has bail set and gets a 180.80 date and you serve
cross, it seems that you would only be entitled to receive only
his/her statements (recorded, written, oral). You would be entitled
to the statement(s) at least 48 hours before your client is scheduled
to testify (well within the 15 day deadline if your client has a 180.80
date). See new §245.10(1)(c).
▪ Note that CPL §710.30’s notice requirements were not
amended or repealed. And, the notice requirement should
not be confused with the discovery requirement: in indicted
cases the notice time period begins from Supreme Court
arraignment.DISCOVERY BEFORE YOUR CLIENT TESTIFIES
BUT! NOTE that the automatic discovery timeline begins at the criminal
court arraignment (see new §245.10(1)(a) below).
▪ So, at your client’s criminal court arraignment on a felony
complaint (or a misdemeanor complaint) – the “as soon as
practicable but not later than 15 calendar days” starts.
▪ The DA may argue that the 180.80 date is 144 hours (or 6 days)
after arrest so the discovery obligation deadline of 15 days has
not been reached.
▪ However, there is still the “as soon as practicable” requirement
and there is an argument that you should at least receive
whatever the DA has – which would be the ECAB sheet, the
arrest/complaint reports, and whatever other evidence the DA
intends to introduce to the grand jury (which can oftentimes
also include video surveillance footage).DISCOVERY AND PLEA OFFERS Because a majority of cases end up in guilty pleas, the new discovery law requires discovery to be turned over before the expiration of any plea offer AND allows time for review and discussion with your clients. Note that 245 does not require discovery to be turned over prior to or at the time of the making of a plea offer! Also: the plea offer must be to a CRIME and it must be a PLEA OFFER (not a sentence recommendation?) I. DEADLINES A plea offer can be made and then the DA can set a deadline. The DA needs only turn over discovery 3 or 7 days before that deadline. The statute differentiates between pre-indictment plea offers AND offers on ALL other cases (even on misdemeanor complaints).
Pre-indictment plea offers
If there is a pre-indictment plea offer, the DA must
provide discovery no less than 3 days prior to the
expiration of the offer or any deadline imposed by the
court.
o What happens on the 180.80 date –which is 144
hours after arrest?
▪ Note that the DA cannot make a defendant
waive discovery in exchange for a plea offer.Plea deadlines on ALL other cases
In all other cases, the DA must provide discovery no less than 7 days prior
to the expiration of the offer or any deadline imposed by the court.
o E.g. if an offer is made in criminal court arraignments - on a
misdemeanor complaint - the DA has to turn over discovery in
arraignments?
o What if there is no expiration or deadline on a plea offer?
o Can the DA just say, there is no deadline and then take his/her
time getting us discovery?
o Answer: not really - because they are still bound by the “as
soon as practicable” and “no later than 15 days”
language. And, there will still be time constraints on a 180.80
day.
Again, a DA cannot condition a plea offer on waiving discovery, but can
we waive the 3 day or 7 day timeline for those sticky situations when our
clients do not want to come back to court OR when they want to get
released?AFTER THE PLEA OFFER EXPIRES
GETTING PLEA OFFERS BACK.
If your client rejects an offer and then gets additional discovery that would
have “materially affected” his/her decision to plead guilty or not, you have
strong grounds to ask for the offer to be re-extended. If the DA refuses to re-
extend the offer, the court can then impose the MINIMUM and PRESUMPTIVE
sanction: preclusion of that withheld item of discovery.
• The minimum presumptive relief is preclusion.
• What is "material"? Anything that would have made your client more
inclined to plead guilty. This "material" discovery would have to be
damaging (not exculpatory) to your client' s defense.
– If the DA turns over a scratch note that was already encapsulated
verbatim in a typed UF61 it would probably not be "material." On the
other hand, if the DA turns over an aided report and your client believed
that the CW did not receive any medical attention and there was not
even a scratch - and it's an assault case - then it's probably "material."THE IMPORTANCE OF
DISCOVERY
Waiver of discovery – A guilty plea
OFFER cannot be conditioned on a
waiver of discovery. A waiver must be
in writing and done at arraignment or
expeditiously thereafter but before
receiving discovery. §245.75CPL § 245.50(1)
• Affirmation of due diligence and
reasonable inquiries
• All known information has been
turned over
• Must list all the items
CERTIFICATES • Cannot announce ready under
OF CPL § 30.30 until certificate of
COMPLIANCE compliance is filed and served.
§245.50(3) (absent individualized
finding of exceptional
circumstances)
• There is a difference between
information KNOWN and what the
DA LATER learns about. CPL §
245.60CPL §§ 245.10(1)(b), 245.20(3)
• Besides the laundry list of discoverable
items, the prosecutor also has to
disclose evidence of convictions or
Molineux prior bad acts that it intends to use as
• Sandoval – evidence that impeaches
vs. (if the defendant testifies)
• Or, Molineux – substantive proof
Sandoval (identification, motive, etc.)
• TIMING of supplemental discovery:
not later than15 days before trial.
– Not tied to certificate of
complianceWHAT ARE YOUR OBLIGATIONS?
Should you waive What should People v. Owens, 159
A.D.3d 1349 (4th Dept.
discovery?
you do with 2018)(defense counsel
that discovery? failed to show video
surveillance to client).
If your client is in jail?
People v. Gil, 285
A.D.2d 7 (1st Dept.
2001)(trial counsel
decided to forego
pretrial discovery and
motions)What is reciprocal discovery?
AFTER - but no Reverse Rosario Reverse Rosario What about The defense is
later than 30 requires the applies to those impeachment also obligated to
calendar days - defense to turn witnesses we witnesses? Prior file and serve a
the prosecution over the names of INTEND to call as statements, dob’s, certificate of
has filed and the witnesses part of our etc. do not have compliance.
served a (who will testify) defense to be turned over
certificate of AND their until after the
compliance, the birthdates and witness testifies.
defense shall addresses.
provide
This is in addition
reciprocal
to their
discovery. This
statements.
rule is limited to
any discovery What does this
that the defense mean for our
intends to investigators?
introduce at trial,
as well as reverse
Rosario. Note that the defense ha
to turn over dob’s and
addresses.NON-TESTIMONIAL DISCOVERY BY DEFENDANT
The new discovery law does not really change existing law (under CPL §240.40) which
allows the People to move to put a client in a line-up, to obtain a DNA swab,
fingerprints, etc. It has a new citation, CPL §254.40.
There is one noticeable change: the current version (in §240.40) only allows the
motion to be made upon a “valid” accusatory instrument (and not just a criminal
court felony or misdemeanor complaint). The new §245.20 now allows a motion to be
made even upon a criminal court (felony or misdemeanor) complaint.
People v. Reginald Goldman, --- N.Y.S.3d -- The fact that the People did not obtain a valid
- , 2019 WL 1768679 (1st Dept. Apr. 23, 2019) search warrant (the trial court disallowed
defendant and defense counsel an opportunity to
highlights the fact that Constitutional be heard) was enough to suppress the DNA as
limitations still apply and so will Abe A. evidence.
Probable cause must still be shown (not just that a crime was committed but also that
the defendant committed that crime).
Also, even without any accusatory instrument being filed, the police must still obtain a
“warrant” to obtain a DNA sample or at least obtain voluntary and knowing
consent. In lineup situations, the police must still have probable cause (Dunaway)
and comply with due process (Wade), etc.BEFORE ARRAIGNMENT Non-testimonial evidence from the defendant. – shall not be construed to alter or affect issuance of a similar court order – before the filing of an accusatory instrument – consistent with constitutional rights OR affect the administration of a chemical test where authorized. §245.40(2) • Breathalyzers OR Blood toxicologies • Matter of Abe A (search warrants for DNA)
SANCTIONS (AND THE
ROSARIO RULE)
New CPL §245.80 (Remedies or
Sanctions for Non-compliance)
distinguishes between two kinds of
violations:
1.LATE DISCLOSURE
2.LOST OR DESTROYED EVIDENCEI. LATE DISCLOSURE
However, even without a showing
The party harmed by the late of prejudice, the court SHALL
disclosure must show prejudice in grant a reasonable adjournment
order to get a sanction. to allow time to prepare (after
receiving the new discovery)
• Cf. People v. Marcus Micolo, ---
N.Y.S.3d --- 2019 WL 1871320 (4th
Dept. Apr. 26, 2019) the court
did not abuse its discretion in
granting an adjournment after
the defendant received Rosario
(right before trial).
• But see People v. Costan, 169
A.D.3d 820 (2nd Dept.
2019)(defense attorney did not
review discovery because court
would not allow time to review).II. LOST OR DESTROYED EVIDENCE the lost or destroyed evidence MAY have contained SOME information RELEVANT to a contested issue. •If ID is an issue and the 911 call contained a description of the perpetrator but it was destroyed •this lost information is relevant to the ID issue. The sanction must be proportionate to HOW helpful that lost evidence COULD have been. NOTABLY, the lost evidence does not have to LIKELY to have been helpful – just the possibility (“COULD HAVE”) of helpfulness is enough to warrant a sanction. Could you ask for a mistrial (if trial has started) OR dismissal (if trial has not started)? Start with the strongest remedy?
III. AVAILABLE SANCTIONS (least severe to most severe): • More discovery • Reasonable adjournment • Re-open hearing • Re-call or call witness • Adverse inference • Strike or preclude testimony • Admit or preclude evidence • Mistrial • Dismissal of charges
IV. ROSARIO VIOLATIONS The Rosario Rule found in CPL §§240.44 and 240.45 is repealed (as of Jan. 1, 2020). Although §240.75 is repealed, the “remedy” for a Rosario violation is now found in subdivision (3) of §245.80 and is, for the most part, unchanged. But, if the Rosario Rule is repealed there seems to be no reason to have subdivision (3) which should be subsumed by subdivisions (1) and (2). NOTE THAT ROSARIO falls into the bigger umbrella of “discovery” under the new law – so subdivisions (1) & (2) apply – even to Rosario violations. New §245.20(1)(e) requires disclosure of ALL witness statements regardless of whether that witness will testify or not.
PROTECTIVE ORDERS/REDACTIONS
redactions often With other
In Brooklyn occur in search witnesses or
Also, in some
(currently), warrant cases very serious
persons, the
when the DA cases (e.g.
dates of birth,
needs to protect shootings),
addresses,
the identifying eyewitness
telephone
information of a names are often
numbers
confidential redacted –
(contact
informant. These again, without
information) are
redactions occur court permission.
pursuant to a often redacted
motion for a without court
protective order. permission.CHANGES
However, under new §245.20(1)(c), the
Most redactions will NOW require
a court order upon a motion.
information about confidential informants
may be withheld and the prosecutor
does not need to file a motion for a
protective order. The prosecutor just
needs to inform us of the redaction. The
defense MAY then have to file a motion
to obtain that information (the right to a
Darden hearing also remains).A protective order can have different forms (new CPL §245.70(1))
Possible results of a motion Form: Notification: Procedure upon filing motion:
for protective order:
denied No redactions n/a
May submit papers or testify
restricted Redactions permitted All parties must know that on the record ex parte or in
redactions occurred camera
conditioned Available ONLY to defense Court shall notify the
counsel defendant that attorney is May be sealed
not permitted to disclose
Defense counsel and persons information to the defendant Prompt hearing within 3
employed MAY NOT business days
DISCLOSE physical copies of
discoverable documents to Court shall render a decision
a defendant or to anyone expeditiously
else – but prosecution affords
the defendant access to
inspect redacted copies of
the discoverable documents
at a supervised location
deferred New CPL §245.70(2)
“as is appropriate” Can the court issue an order
requiring the prosecution to
make the witness available
for some kind of deposition (If
the witness’ location cannot
be disclosed)?
Can the court issue an order
requiring the prosecution to
make a proffer – without
having to disclose the actual
contents of a discoverable
item?Protective orders require a showing of good cause. Such good
cause must be balanced against constitutional rights.
The stated reason for protective Balanced
order: against: More
balancing factors (for all stated reasons):
Risk of intimidation, economic the nature, severity and ALL OF THESE FACTORS
reprisal, bribery, harassment or likelihood of that risk & MUST BE CONSIDERED (?)
unjustified annoyance or The nature and circumstances
embarrassment of the factual allegations (e.g.
is it a shooting between rival
gangs?)
Risk of adverse effect upon could include need to protect
legitimate needs of law identity of confidential The defendant’s past history of
enforcement informant witness intimidation or
tampering and the nature of
the nature, severity and such history – this factor would
likelihood of that risk & help establish “likelihood”?
The nature of the stated reason
for the protective order
Danger to the integrity of physical
evidence or the safety of a witness The nature of the witness
identifying information
o Including the option
of employing
Danger to any person from factors alternative contact
such as the defendant’s information
SUBSTANTIATED affiliation with a
criminal enterprise And other similar factors that
outweigh the usefulness of the
discoveryMORE THAN JUST AN
ETHICAL VIOLATION
If anyone (including an
attorney) violates the
protective order – it will be
deemed contempt under
PL §215.50. see new
§245.70(7)APPEALS
• ADVERSE RULINGS ARE SUBJECT
TO IMMEDIATE REVIEW BY AN
INDIVIDUAL JUSTICE OF
AN INTERMEDIATE APPELLATE
COURT
• MUST BE BY ORDER TO SHOW
CAUSE
• MUST BE FILED WITHIN 2 BUSINESS
DAYS AFTER ADVERSE RULING
• THE DECISION CAN STILL BE
REVIEWED ON APPEAL - IF THERE
IS A CONVICTION
– APPLIES ONLY TO ADVERSE RULINGS
ON PROTECTIVE ORDERS!NOT DISCOVERY Work product is not discovery: see § 245.60 Bill of Particulars, CPL §200.90
MISCELLANEOUS §245.85, the fact that a party indicated an intent to introduce specified evidence during trial is not admissible in evidence or grounds for adverse comment (not just ruling).
IMPLEMENTATION POSSIBLE MOTIONS? • WRITTEN OR ORAL – “upon notice” LITIGATION • Protective orders • Access orders • Witness addresses • Sanctions
Yung-Mi Lee
Brooklyn Defender Services
Contact:
718-254-0700, ext. 104
ylee@bds.orgYou can also read
