The Fight for Discovery

There is nothing more sadly amusing than when a civil litigator dips his toe into criminal defense and finds out that they learn less about the evidence against a defendant whose life is on the line than they do in a law suit for a stubbed toe.  Welcome to criminal discovery. The shock and dismay never gets old.

New York Assemblyman Joe Lenthol from the North of Brooklyn has offered a bill to fix the insanity.  From his experience in the Kings County district attorney’s office, he no doubt appreciated the dearth of discovery and how it worked to the terrible disadvantage of the defense in preparing its case.  So he offered a fix, as he explains in the memo to Assembly bill A3801 :


The ever-present reality of the criminal justice process is that most of the information necessary to fair adjudication is in the hands of the State. One purpose of the discovery law is to  disclose  to the  accused  before  trial  inculpatory  evidence making up the State’s case, in order to prevent unfair surprise. An equally critical component of the discovery process is to provide the accused with material in  the hands of the State, with its superior investigatory resources, that may aid in the preparation of a defense.  This duty to disclose what is loosely  referred to as “exculpatory” evidence had been a constitutional requirement since Brady v. Maryland, 373 U.S. 83 (1963).
Yes, Brady.  After Marvin Schechter  started a firestorm by openly raising the reality that Brady disclosure in New York was a sham, it was a good time to fix the problem.


The basic flaw in the Brady disclosure process is that it places the duty to search, for evidentiary material favorable to the defense in the hands of its adversary. Some prosecutors may take an unduly narrow  view of the Brady obligation, one that does not encompass impeachment material or recognizes only obvious exculpatory evidence. And even the conscientious prosecutor may not understand how an item might fit within a defense theory, or lead to evidence favorable to the defense.
Yes, Brady.  Discovery under the New York Criminal Procedure Law is purely a creature of statute, with the constitutional mandates of Brady and its progeny overlaid upon the statutory scheme. It’s usually addressed by the breezy inclusion of a sentence in the prosecution’s response to discovery demands that they are aware of the ongoing duty under Brady and, in the unlikely event that any such information become available, will obviously comply with their duty.


The amendment to CPL §240.40(1)(c) would strengthen the effectuation of the Brady rule. The current version, with the “which the people intend to introduce at trial” restriction, serves only the  discovery  function of  preventing surprise.  It  does little to aid the preparation of the defense function. The part  of  the  information in the  prosecution’s possession  that it selects to introduce at trial will likely not be favorable to the defense. On the other hand, the material that it chooses not to present to the trier of fact is the category where information favorable to the defense is more likely to be found.
But the limitation of CPL §240.40(1)(c) doesn’t apply to Brady.  To the extent that the substantive discovery statute, CPL §240.20, bears any relation to Brady, it comes under this subdivision:


 (1)(h)   Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.
If it’s “required to be disclosed” by the Constitution, the limitation of §240.40(1)(c), “which the people intend to introduce at trial,” has nothing whatsoever to do with it.  It doesn’t constrain the prosecution. It doesn’t constrain the court. It doesn’t constrain anyone. It’s got nothing to do with Brady

But Lenthol’s memo explains that this is all about Brady, all about leveling the playing field. Joe would never fool us with empty rhetoric about how his bill will “strengthen the effectuation of the Brady rule” and then snip out a meaningless phrase that has nothing to do with Brady anyway.  Show us the bill, Joe. Show us you mean business:


AN ACT to amend the criminal procedure law, in relation to discovery

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

    1    Section 1. Paragraph (c) of subdivision 1 of  section  240.40  of  the
    2  criminal procedure law, as amended by chapter 19 of the laws of 2012, is
    3  amended to read as follows:
    4    (c) may order discovery with respect to any other property[, which the
    5  people  intend to introduce at the trial,] upon a showing by the defend-
    6  ant that discovery with respect to such  property  is  material  to  the
    7  preparation  of  his or her defense, and that the request is reasonable;
    8  and
    9    S 2. This act shall take effect immediately.
That’s it?  That’s your fix for Brady?  That’s your fix for discovery?

The Bill passed the Democratically controlled Assembly, and has moved on to the Republican Senate.  And you thought the decades of fighting for better discovery wouldn’t produce results. At least you have this amendment to keep you warm along with the dozen new crimes the Legislature will create this year. 

Maybe we should throw a party or give Joe Lenthol an award.

14 comments on “The Fight for Discovery

  1. Jordan Rushie

    “There is nothing more sadly amusing than when a civil litigator dips his toe into criminal defense and finds out that they learn less about the evidence against a defendant whose life is on the line than they do in a law suit for a stubbed toe. Welcome to criminal discovery. The shock and dismay never gets old.”

    In all fairness, that is how I feel about many criminal defense lawyers who try and take on a civil matter.

    ‘Um, you do understand that they can just ask your client all the hard questions in a deposition, right?’

    In the same vein, that is why I don’t take on any criminal defense cases.

  2. SHG

    Do you really feel the same or the opposite, that criminal defense lawyers don’t appreciate the wealth of discovery available in civil litigation as compared to dearth in criminal?  The point (need I explain this?) is that civil is a battle for cash and, occasionally, injunctive relief. Criminal is only about lives. Which presents the more compelling need for discovery?

    Then again, if criminal defense lawyers obtained the vast discovery available to civil lawyers, they could win more cases and undermine the very foundation of civil society. See what I did there?

  3. Jordan Rushie

    Oh, I’ve long thought it’s outrageous that I get discovery in a case where $30k is on the line, and you don’t get it where a guy might get the death penalty.

    My point is I’ve seen some criminal defense attorneys try to dabble in civil litigation, usually with poor results, because they don’t understand the civil discovery process.

    On an aside, I was at federal bench bar last week, and a judge remarked that she thought CDLs were better advocates overall. Said they end to get to the point, the heart of the issue. Civil guys spend three days of trial trying to establish that it was windy out on the night of the accident, and a box of documents to prove it.

  4. SHG

    I was just yanking your chain. I agree with you, all lawyers (even my beloved CDLs) need to have a damn firm grasp of what they’re doing or they’re likely to screw things up.

    And your “establishing it was windy” is so true. When I try a civil case, it makes me nuts.

  5. nidefatt

    Love it.

    I have taken up a pointless fight on appeal to have a city prosecution office get smacked for telling me to go to the sheriff’s office to view the maintenance logs of their intoxilyzer. The prosecutor was totally in the right under the law and rules, both created in the late 60s. My point to the courts was this is 2013 and the prosecutor essentially admitted to never having reviewed this document even though he’s quite aware it could contain brady material.

    What I find particularly upsetting is that when I start getting demanding, like requesting records of complaints against officers involved, I’m suddenly accused of a fishing expedition and I have magistrates stroking their formerly DA beards trying to figure out if they can stop me with a straight face. But that probably has more to do with the limited discovery most of the defense bar in my area engages in that makes my requests seem strange and exorbitant in comparison. Ugh.

  6. SHG

    But you know the problem; lawyers get nothing case after case, and give up trying and put in the same rote papers with the names changed (sometimes).  Motions are pro forma, responses are pro forma, and decisions are pro forma.

    For the handful of CDLs who make the effort to break out of the box, they are treated either like pariahs or fools.  Rarely will a judge take a serious motion seriously. How many judges take a motion you spent three days putting together and read it on the bench for 30 seconds then rule?

    It’s a vicious circle, and only a fool would continue to make the effort to craft sui generis motions and fight with judges to get actual thoughtful decisions in the face of “the way it’s always done.”

  7. Thomas R. Griffith

    Sir, despite the lesson being New York based, it reminds me of the moment where I learned via a Q & A in the SJ comment section (regarding a Harris County, Texas court that refused to respond via Court Orders by either Agreeing or Denying pre trial discovery motions in a felony jury trial) that the law allowed the unqualified to dabble in the CDL niche, do little or no work and walk away with no consequences.

    I found out the hard way that when Fakers & Shakers are allowed to infiltrate a profession, it looks a lil like this – A Divorce & Estate specialists with absolutely no felony jury trial experience is allowed to: *be referred out (by other attorneys / lawyers) as one of the best, *provide my poor elderly parents a free consultation, *quote a fee to take it to a jury trial, *accept a down payment & set up monthly installments, *perform one 15 minute legal visit during 100 plus days of confinement, *create 6 pre trial motions & file them all 30 days prior to trial day, not know what to do when the court ignored them all by neither Agreeing or Denying via Court Orders and go on to file another Ready for Trial notice (4 total).

    All this and more strange un-defense moves were noticed when he sat quietly as the ADA introduced a Mystery Gun in his Opening (having nothing to with anyone in the court but the ADA himself). Sadly his inexperience got the best of him (& his paying client) at lunch recess where he launched into a marathon court room holding cell discussion that included the other inmates & one Bailiff. The very last words out of his mouth sounded a lil something like this priceless Texas TapOut – “Stop the jury trial. Take the plea, Guilty or Not, you are going to prison just for being arrested on a new unrelated charge.” Thanks.

    NOTE. If you are unqualified, simply don’t take the God Damn the case. Refer out to a vetted source for a 10% finder’s fee. Like the commercial says -Failing to concentrate on your client’s case can result in your house blowing up, don’t have your house blow up. Instead of blowing up this Dabbler’s house, I sent him copies of the HPD Incident Report, 11 x 8 ½ Color Booking Photo & Certified Case files. In response, he said he shreds client case files after 3 years and provided me with a useless Letter of Recommendation for a Full Pardon – for / based on innocence (“Based on facts in the case.”) Thanks to Dabblers and those that Enable them, the VOTS in non-DNA matters sport big-ass Xs’ forever, especially when discovery is taken for granted or ignored all together and one’s legal advice is a damn lie.

  8. Andrew

    The focus on getting Brady pre-trial is important, but sometimes it can be more important to focus on eliciting Brady through cross-examination. This has at least three purposes which may help the client more than getting snippets of Brady pre -trial: 1. The judge will sanction the prosecutor; 2 the jury may realize the prosecutor did something dirty; and 3. Best of all, the judge may erroneously fail to recognize a Brady violation, and you may have reversible error. All three of these outcomes might be better than getting some marginally useful Brady material pre-trial.

  9. SHG

    While your points, as a tactical matter, are valuable, I’m hesitant to agree that it can be “more important.” It’s worthwhile noting that even if the prosecution fails to fulfill its duty under Brady, defense counsel can still use it against them if he’s able to get its existence out during trial. But there’s no assurance that’s going to happen, even if it does exist. And reversible error is hardly a substitute for a not guilty verdict.  The problem with relying on long shots is that you either win big or lose big, and the odds are strongly in favor of losing.

  10. Rick Horowitz

    I guess more of us need to be fools, then.

    When I think of all the people who tell me I get into the most interesting cases, or they enjoy watching me work (usually because I’m doing something different than what they usually see), one of my thoughts is always, “But I take the same kind of cases you do.”

    Am I wrong to think that if more defense attorneys took motions seriously, then more judges might, too?

  11. SHG

    So you’re saying I’ve been unclear about that in this and a couple hundred other posts I’ve written about motion practice?

  12. Rick Horowitz

    Nope.

    Whenever you write about it, you’re clear.

    I guess I’m just amazed that attorneys, who I expect to know better, still don’t understand what’s wrong with canned briefs. How hard is it to realize that if you do what you’ve always done, you’ll get what you’ve always gotten?

  13. Daniel

    Brady is good (but practically ineffective most of the time), but I think it is just as important for the defendant to know the inculpatory evidence so it can be countered if possible. We have a constitutional right to be informed of the charges against us, but that doesn’t really do much good if we don’t also get or already know) the actual evidence against us.

    At my pro per trial, I effectively used “inculpatory” evidence against me in my favor because I exposed its lie. If I hadn’t found out about the “inculpatory” evidence before (or during) trial, I wouldn’t have been able to meet it.

    Without access to the inculpatory police reports I obtained during discovery, I would never have been able to contradict the police reports, and would probably have been convicted because the first police officer was an effective liar (in fact, he sounded so good, I thought I had been had, until I exposed him on cross-examination).

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