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 discoveryThat’s it? That’s your fix for Brady? That’s your fix for 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;
9 S 2. This act shall take effect immediately.
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.