8-c-2 New York Procedures

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

8-C-2. New York Procedures

(a) Introduction

New York has leads a movement to permit criminal defendants freer access to information. Though there are still limits on the information that criminal defendants can obtain before trial, New York has broadened discovery under Article 240 of the New York Criminal Procedure Law ("N.Y. Crim. Proc. Law").⁷⁷ Article 240 is patterned on Rule 16 of the Federal Rules of Criminal Procedure. So, if you run into a discovery problem and find a federal case interpreting Rule 16 in your favor, the New York state courts usually will consider the case as persuasive (that is, supportive of your case) for interpreting Article 240.⁷⁸

Below is a general overview of discovery rules found in Article 240 of the N.Y. Crim. Proc. Law. If you run into specific problems, you should refer to the statutory provisions themselves and any accompanying notes.⁷⁹

(b) Scope of Discovery

(i) Discovery Between the Accused and the Prosecutor

Article 240 allows you to inspect, photograph, copy, or test certain types of property⁸⁰ that are material⁸¹ to your case.

Any written, recorded, or oral statement you made to the police (or to a person acting under police direction) that was not made during "the criminal transaction" is discoverable material.⁸² You can request this material, as well as similar statements made by a co-defendant who will be tried jointly with you.⁸³ This generally applies if you or a co-defendant made a statement following arrest-for example, in a statement made at the police station. Notice that this does not cover statements made during "the criminal transaction."⁸⁴ For example, the prosecution usually does not have to give you a copy of conversations between you and an undercover officer if the conversation occurred during a drug transaction. An exception exists where the statement is recorded electronically; if a statement made during the criminal transaction is recorded on tape, you are entitled to it through discovery.⁸⁵ This can be very helpful in setting up certain defenses, such as entrapment. In an entrapment defense, you need to show that the police got you to commit a crime you would not have committed if they had left you alone.⁸⁶

Any statement made to the police or to a person acting under police direction before the criminal transaction took place is also discoverable. Such evidence might be used to establish a motive or intent to commit the crime. For instance, if you made a statement before a homicide indicating that you hated the victim, it could be used to prove motive to kill them. Therefore, is important that you discover if any material of this sort exists.

Another type of discoverable material is a transcript of testimony that you or a co-defendant made before a grand jury.⁸⁷ A transcript of your testimony could reveal weaknesses in your case because it could show whether you gave any damaging testimony. It might also help you maintain a consistent version of your story. If, for instance, you make a statement at trial inconsistent with the testimony you gave before the grand jury, the prosecution could point this out and weaken your credibility with the judge or jury. You will want to anticipate and, if possible, prevent this.

Article 240 also allows you to discover scientific evidence.⁸⁸ Such evidence might include a written report based on a physical or mental examination, a scientific test or experiment related to the crime for which you are charged, psychological reports, ballistics reports (scientific examination of guns and bullets that can determine whether a specific bullet was fired from a particular gun), drug tests, DNA and semen tests, and blood-typing.⁸⁹

Tapes or electronic recordings are yet another type of discoverable property.⁹⁰ The prosecutor must disclose any tape or electronic recording that he intends to introduce at trial if you request such material, even if that "recording was made during the course of the criminal transaction." You are also entitled to reports that reveal "[t]he approximate date, time, and place of the" crime and of the arrest.⁹¹This information may be useful to help you establish an alibi. You also may discover "any other property obtained" from you or from a co-defendant.⁹² This might include weapons, clothing, drugs, tools, cars, or other items. Discovery of this type of property can help you prepare your case by giving you insight into what the prosecutor will present at trial to link you to the crime.

(ii) Discovery Between the Accused and Third Parties: Subpoena Duces Tecum

The "subpoena duces tecum " is a process where the court orders a witness to bring documents relevant to the court proceedings with him when he comes to...