New York discovery reform proposals: A critical assessment.

Author:Stark, Vincent


In recent years, defense attorneys in New York have argued that it is time for a change in New York's criminal discovery regime. (1) According to these critics, New York lags behind other states in so-called discovery reform. (2) Those same critics charge that the discovery statute is "outdated" and "unfair." (3) To them, the question of reform is a "critical" issue that New York must confront. (4)

Proponents of change allege that many benefits would flow from an overhaul of the system. (5) No less of an authority than former Chief Judge Lippman of the Court of Appeals has suggested that discovery changes are needed to guard against wrongful convictions. (6) Discovery reform is thought necessary to combat Brady violations (7) and is said to benefit defense attorneys, who are supposedly better able to investigate and prepare for trial. (8) Although several well-researched documents have been produced by proponents of reform, there is a decided lack of scholarship on the other side of the issue.

This paper examines proponents' claims with a critical eye, and concludes that their proposed reforms would not achieve their ends. More important, those same reforms would have deleterious effects on the operation of the criminal justice system and would, ultimately, make the public less safe. The legislature should carefully consider the arguments for and against discovery reform before jumping in feet first.


    1. The Development of Criminal Discovery in New York

      At common law, there was no right to discovery in a criminal cause. (9) Requests for discretionary discovery were held in equally low regard. (10) Learned Hand famously expressed the opinion of the bench that:

      Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see.... Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime. (11) In 1927 the New York Court of Appeals--speaking through the great Cardozo--reaffirmed the rule that a defendant was not entitled to evidence against her simply because "the evidence will be helpful in preparing her defense." (12) In the absence of a statute concerning discovery in a criminal case, New York courts were powerless to order it. (13) So clearly established was the rule that the Court of Appeals unanimously upheld a writ of prohibition against a discovery order. (14) For many years thereafter, "the steadfast rule in New York was that the accused had no right either to inspection or disclosure except in rare instance[s] where... it was necessary to prevent injustice." (15)

      Over time, recognition grew that a system that denied a defendant any discovery at all was inequitable. Great legal thinkers like Judge Roger Traynor led the charge for criminal discovery during the 1960s. (16) But it was the eloquence of Justice William Brennan that made it a reality. During a lecture at the Washington University School of Law in 1962, he took aim squarely at criminal discovery. (17) Brennan famously compared trials under the no-discovery regime of the day with "sporting contests." (18) He argued strenuously that criminal procedure in general, and discovery in particular, should facilitate a search for truth: "a serious inquiry aiming to distinguish between guilt and innocence." (19)

      Traditionally, those opposed to any criminal discovery advanced three arguments against it. (20) The leading case was State v Tune, (21) authored by New Jersey Chief Justice Arthur Vanderbilt, whom even Brennan hailed as "one of the great judges of our time." (22) In that case, the defendant was denied the right to inspect the statements of others before trial, and the decision was upheld by the Supreme Court of New Jersey. (23)

      Three reasons supported the Court's decision. First, Chief Justice Vanderbilt wrote that:

      [L]ong experience has taught the courts that often [criminal] discovery will lead not to honest fact-finding, but on the contrary to perjury and the suppression of evidence. Thus the criminal who is aware of the whole case against him will often procure perjured testimony in order to set up a false defense. (24) Second, the court worried that a defendant who is given the names of the prosecution's witnesses prior to trial "may take steps to bribe or frighten them into giving perjured testimony or into absenting themselves so that they are unavailable to testify." (25) And "many witnesses, if they know that the defendant will have knowledge of their names prior to trial, will be reluctant to come forward with information during the investigation of the crime." (26)

      Third, the court noted that the defendant had a constitutional protection from self-incrimination. (27) As a result, the defendant would be able to "introduce any sort of unforeseeable evidence he desires" without giving the prosecutor any notice of his defense (28)--one of the objections that had so animated Learned Hand thirty years prior. (29) Whereas civil discovery facilitated the search for truth by assuring that the parties played with an open hand, in the criminal context the right against self-incrimination gave the defendant an unfair advantage, especially given the prosecutor's much higher burden in a criminal case. (30)

      Justice Brennan brushed these concerns aside. On the question of perjury, he noted that the "alleged experience [was] simply non-existent," since the traditional rule had "firmly shut the door" against criminal discovery. (31) He referred to the argument as an "old hobgoblin" and said that a similar prediction of widespread perjury had not held true when discovery was created in civil actions. (32) In any event, he said, the argument was a slander against the defense bar, as the idea that a defense attorney would allow perjured testimony "hardly comports with the foundation of trust and ethics which underlies our professional honor system." (33)

      The objection that the right against self-incrimination made meaningful reciprocal discovery impossible was similarly denigrated. As he did elsewhere, Brennan took a functional approach: against the prosecutor's "[l]aboratories, skilled investigators, [and] experts in all areas", the defendant's right against self-incrimination was not a daunting one. (34)

      Brennan had trouble only with the question of witness intimidation. He admitted: "Of course, there have been instances where this has happened," calling witness intimidation a "legitimate concern." (35) And he conceded that criminal discovery should not "be at large and without the intervention of judicial discretion." (36) The solution, Brennan argued, was to commit discovery to the discretion of judges. (37) When circumstances justified it, he said, the judge could make the evidence available subject to a protective order. (38)

      Although they glossed over the dangers of witness intimidation, proponents of criminal discovery were clear on what they viewed as the benefits of a liberal discovery regime. It would promote "the search for the truth by ensuring that all relevant facts would be brought out at trial and that... surprise tactics would be eliminated." (39) They argued that pretrial discovery would quickly and efficiently allow a defendant and his attorney the ability to weigh the evidence against him, thus streamlining the plea bargaining process. (40) Indeed, some argued that disclosure would benefit the prosecutor by inducing more defendants to plea. (41) Finally, they argued that defense attorneys would be better able to investigate and prepare for trial, (42) which they felt necessary to counteract the state's greater investigatory resources. After all, Brennan wryly noted: "Not every accused has the good fortune to have an ingenious Perry Mason as his counsel." (43)

      A few months after Brennan's lecture, the Supreme Court handed down its watershed decision in Brady v. Maryland. (44) The era of criminal discovery had begun. For a time, it appeared that discovery might become a constitutionalized area of criminal procedure, and appellate courts across the country began to develop common law discovery rules. (45) In New York, discovery was provided "in furtherance of justice" and in the discretion of the judges. (46) Even then, the defendant bore the burden of showing with particularity that the information sought was material, admissible, competent, and was important to the defense. (47) By the end of the decade, judicial innovation had created a jumble of "inconsistent and conflicting" rules that gave judges little guidance. (48)

      In 1971, the legislature stepped in. Perhaps acting partly out of fear that the courts would constitutionalize discovery and partly in an effort to fix the mess that common law discovery had created, (49) the legislature adopted Article 240 of the Criminal Procedure Law. (50) That statute "provided specific criteria for judges to follow in granting discovery and expanded an accused's right to pretrial discovery well beyond the most liberal pre-CPL case law." (51) Based upon Rule 16 of the Federal Rules of Criminal Procedure, (52) the 1971 Article 240 granted defendants discovery upon motion by the defendant made with due diligence. (53) Some material was discoverable as of right; some was discoverable at the discretion of the judge, upon a showing of materiality. (54)

      As liberal as it was...

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