Open File Discovery – Better But Not Perfect

Judicial Reports posted the second in a series called Concealed Witness about the withholding of information from the defense in order for the prosecution to gain advantage at trial.  It includes a  sidebar polemic by yours truly on the games played with Brady material in New York courts. 

Notably, some District Attorneys provide, voluntarily, open file discovery even though the law doesn’t demand it.  Open file discovery “is the practice of allowing the defense virtually unrestricted access to the case file — ideally, immediately after indictment — and limiting pretrial motion practice to disputes over suppression of evidence and other genuinely debatable matters.”

In New York, discovery is governed by statute (Criminal Procedure Law 240.20), which provides a short list of what the prosecution is required to provide and a request/refusal/motion system for obtaining it.  Those offices that don’t voluntarily engage in open file discovery tend to use a mechanism called a Voluntary Disclosure Form (VDF), which is turned over to the defense with the indictment.  It’s pretty much a fill in the blanks form that substitutes for real discovery.  Moreover, it’s often marked to let you know that there are lab reports, with the notation that they will be turned over later, either upon request or at the prosecutor’s convenience.

Supreme Court Justice Jim Yates provides an explanation of what was intended when this discovery statute was written.  He should know.  He wrote it way back when.  So you know, Judge Yates is one of the best judges we have in Manhattan.  We haven’t always seen things eye to eye, and in fact had one huge blow-up on a case where he had granted my preclusion motion one day (he was right to do so), then reversed himself the next day.  On day 1 he told the prosecutor he was drawing a line in the sand.  The next day, when he reversed himself, I threw his words back at him and he told me, “That’s why the line is in sand, with one sweep of the hand, it disappears.”  What do you do about a judge with such a facile use of metaphors?

Judge Yates was disgusted by the way his discovery statute had been undermined.  It had been the intent to encourage and expect meaningful disclosure, but with prosecutors using disclosure as a weapon, and judges unwilling to buck powerful district attorneys, it became a unwieldy limit on the defense.


Yates blamed this outcome on a “fundamental disagreement” among his colleagues: “The majority of judges take the view that unless it’s required to be turned over under the statute, they don’t have the authority to order the prosecution to turn it over.”

This is not, he said, what the law’s authors intended: “What we built was a floor, not a ceiling. The idea was not to restrict discovery, but [that has been] the net effect. If I’d thought it would be read [this] way, I would never have helped write it.”

This is an important lesson to Legislators, which naturally few learned.  The view from the trenches is rarely the same as the view from the great hall of the Legislature.  The law of unintended consequences will always trump good intentions.

What’s worse, and unsaid in the piece, is that practice doesn’t even fulfill the minimal expectations of the discovery statute.  While a VDF may work with a particularly generous Assistant District Attorney or truly garden variety case, it has largely turned into a substitute for judicial involvement in compliance with the discovery process.  Disclosure is just one more thing taken off the judge’s plate and left entirely to the discretion of the prosecution.

If the VDF has no lab or ballistics report noted, for example, but the case necessarily suggests that there has to be one, the defense moves for an order requiring disclosure or precluding its introduction at trial.  The court simply ignores the motion, saying “whatever is in the VDF satisfies the prosecution’s discovery obligation.”  At trial, a year later and before another judge, the reports naturally appear.  Other than a potential scolding for what they should have done, the defense gets sandbagged and there’s no sanction for the prosecution.

A solution to the fiasco called discovery has been offered by a former Brooklyn ADA, now State Assemblyman, Joseph Lentol (D-Kings County), chair of the Code Committee.  He has proposed versions of a bill, A-1119, that would liberalize discovery.  He’s done so annually for a decade.  His bill has never made it out of committee.

Noting that the “odds are really stacked against the defense,” his solution is to require open file discovery in all cases.  This has been embraced by some as the new panacea to level the playing field.  Others disagree:


Senator Dale Volker (R-Depew), a former cop and current chair of the New York Senate Codes Committee, tells a surprisingly similar story. “Personally, I think there’s some work we could do on discovery, but [Lentol’s bill] would open up discovery so much that the District Attorneys would never go for it,” he said. “I think what the [DA’s] are concerned with is once you open up the whole discovery process, if [they feel] they’re not able to give information and the law says they must, they’d be in trouble. Don’t kid yourself, there are cases where turning over everything is not a good idea.”

New York certainly shouldn’t have laws that the District Attorneys wouldn’t care for, right?  After all, the criteria for a good law is “what does the DA think about it?”  This should give you some clue as to what the unintended consequences of open file discovery, even if it were to make it through the Legislature, might bring.

Given current experience, no judge will ever be bothered overseeing discovery again should open file discovery happen, leaving the process entirely in the hands of the prosecutor.  The “open file” will swiftly turn into the portion of the file that the ADA deems to be what he wants the defense to see, and any document that somehow doesn’t make it into his “file” at the time it’s turned over, well, new stuff shows up at trial all the time.  It happens, according to the ADAs.  It’s not like they intended to conceal anything, right?

What becomes of the duty to exercise due diligence to seek out and obtain specifics that are required for the preparation of the defense?  Even assuming you get to see what the ADA has already put in his file, the mechanism is lost for having a court compel the prosecution to affirmatively provide whatever is not there.  Bear in mind, there’s no incentive for the ADA to go out of his way to seek reports that hurt his case, even though these are the reports that help the defense and keep innocent people from being convicted.  How does one compel the prosecution to obtain the rap sheet for its primary witness at trial?  Beats me, under this panacea.

But isn’t open file discovery better than what we have now?  Well, in many ways it is.  At least we have a decent shot of getting the same discovery that we would get if they made a serious effort to comply with the existing discovery statute, plus whatever extra stuff that found its way into the file.

The problem I see is that discovery reform, desperately needed if anybody cares at all about keeping innocent people from being convicted, happens only once every few generations.  As Judge Yates learned, even the best laid plans go awry, and the last effort was a miserable failure.  The next try needs to recognize the “real life” flaws of the system in order to correct them, rather than the “pretend” flaws that assume the system will function with the good faith of all involved. 

In other words, we need to stop “trusting” the little boys and girls in the DAs offices with making decisions that impact innocent people and create a system where judges play a serous role and both have, and are forced to use, their power to sanction the concealment of discovery materials.  All three players in the courtroom need to be engaged in the proceedings, not just the prosecutors picking and choosing what to hand over to the begging defense lawyers.  And as long as judges refuse to preclude the admission of concealed evidence or testimony for fear of upsetting the omnipotent District Attorneys or making the front page of the New York Post, then there is no statute that can save the system.

So while I applaud Assemblyman Joe Lentol for trying, an open file discovery statute is not going to cure what ails the system.  And as long as Senators like Dale Volker control their chamber, you can bet your bottom dollar that there will be a warm welcome for the District Attorneys views on the subject in Albany. 

Looking for a statutory solution in Albany is part of the problem, because the truth is that we really don’t need the unwilling politicians’ involvement to make this work.  What we need are judges who take an active role under the current law to put the teeth back in the discovery duty, hold the prosecutors feet to the fire by imposing sanctions for non-compliance, and recognizing a constitutional due process duty to disclose that trumps the statutory duty.  As Judge Yates said, the law was intended as a minimum, not a maximum, obligation. 

So if New York’s judges could focus on doing a little more to assure fairness in discovery rather than getting a pay raise, perhaps we could fix this problem?  Oh please.  We’ll be right back to business as usual, with the defense dangling at the whim of the prosecution and the judges pretending that they have nothing to do with it.