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Dedication

This article is dedicated to my friends at the Steuben County Public Defender’s Office, who this summer were awarded the Jonathan E. Gradess Service of Justice Award for their work in upholding New York State’s discovery reform.

 

Introduction

How much information should a criminal defense attorney have when walking into court? According to the New York State legislature, quite a lot. Three years ago, the legislature passed a sweeping reform of discovery, including the addition of automatic discovery in criminal cases. However, prosecutors and defense attorneys are at odds over what the precise extent of the new law is.

The upshot of the discovery reforms is that they define 21 types of material that must be turned over in every case, whether the defense attorney requests it or not. These materials include body camera footage and sworn statements from witnesses and police. However, the exact scope of what material needs to be turned over has yet to be fully litigated, despite a presumption of openness written into the law itself.

The reform has been broadly popular with defense attorneys, although some complain about the sheer amount of material they receive and are required to review. Prosecutors and some think tanks on the other hand complain that the discovery requirements are burdensome and unfair. Just this year the discovery reforms were nearly rolled back during state budget talks.

One place where the law has yet to be settled is regarding the disciplinary records of police involved in a case. Such records could be used to impeach the credibility of testifying officers, but does that mean they are owed to the defense?

Before we get to that though, let’s consider the stakes regarding making errors in discovery.

 

The Importance of Discovery Compliance

Compliance with the discovery laws is not just a matter of playing nice with the defense. Failure to comply has real consequences for prosecutors. To explain why, we need to sidebar into how NY ensures a defendant’s right to a speedy trial.

 Every day that passes between the commencement of an action and the date of the trial is on a clock called the 30.30 clock; referencing the statute that creates the clock. Depending on the severity of the offense, the trial must commence within a certain number of days. This can be from 30 days to 6 months. Adjournments by the defense can stop the clock from running. Prosecutors can also stop the clock for good and declare that they are ready for the trial via a Statement of Trial Readiness.

However, there are requirements to state trial readiness. The prosecutor cannot state trial readiness until they have filed a Certificate of Compliance (CoC) with discovery. In it, they state that to their knowledge they have complied with their obligations. If they fail to file the CoC or submit one when they knowingly have not complied with their discovery obligations, the speedy trial clock continues to run. When the clock runs out, there is only one remedy available. The court must dismiss the case entirely.

The risk is great. And lest you think that this is a mere procedural quirk that never happens, here are some links to cases from this year where a failure to meet discovery requirements has resulted in a dismissal.

 

The Controversy over police disciplinary records.

A particular flashpoint of this still-fresh reform is police disciplinary records. Defense attorneys see the records as part of section 245.20(k)(iv), evidence which “impeach the credibility of a testifying prosecution witness”. Prosecutors often disagree, with their arguments falling along consistent lines. I have personally heard the following:

• That the law does not require them to hand them over.
• That the DA’s office is not in possession of the records, as they are held by the police department.
• Finally, the defense can easily obtain the materials via a FOIL request, negating the need for the prosecution to provide it.

Defense attorneys traditionally counter with the following arguments, which some courts have picked up on.

First, they argue plain reading of the statute requires police disciplinary records to be part of automatic discovery. Section 245 does not distinguish police from any other potential witness in a criminal prosecution. The fact that a police officer has been disciplined impacts their credibility in the eyes of a jury. Furthermore, even before this discovery reform, the New York Court of Appeals held that prior bad acts of police were proper fodder for cross-examinations.

Prosecutors counter by saying that the records are not material to the case itself and therefore do not fall under Brady/Giglio, which the discovery law in many ways tracks. However, defense attorneys and some courts note that the requirement of materiality to the case is not present in the statutory language.

On the matter of the DA not possessing the records, proponents of broad discovery argue that they are in constructive possession of the records. Law enforcement must make those records available to the DA’s office, so they are effectively in possession of all discoverable information.

Finally, proponents of the discovery scheme argue that information available from an alternative source does not rid prosecutors of the duty to provide information to the defense. Federally it has been long held that prosecutors must comply with discovery obligations irrespective of the information being available elsewhere. Proponents also note that DA’s offices were provided with substantial new resources to ensure that they would be able to comply with discovery requirements both when it was passed and in the current budget.

 

The Court’s Response

Trail courts have, where opinions have been written, generally interpreted the discovery statute as including police disciplinary records. However, a recent 4^th Department, People v. Johnson, decision has thrown this conclusion into jeopardy. There, the court held that the defendant was only entitled to those records that “related to the subject matter of the case. This conclusion rejects the argument that the records fall under the designation of impeachment materials under CPL section 245.20(k)(iv).  Since this is the only appellate-level case on the subject so far, it is binding authority across the state. Although it remains an open question how far the ruling applies, and if it can be effectively distinguished.

 

Conclusion

For some time, the case law appears to favor the broad discovery provisions the legislature intended to produce. However, recent trends may yet undo some of the statutory gains. The sheer amount of litigation police records and other discovery issues makes it clear despite the legislature’s apparent intentions, it may require the Court of Appeals to settle this once and for all.

 

Suggested Citation: Andrew Brockmeyer, Discovering Discovery: Analyzing the Arguments for Automatic Discovery of Police Disciplinary Records, Cornell J.L. & Pub. Pol’y, The Issue Spotter (November 13, 2023), http://jlpp.org/blogzine/discovering-discovery-analyzing-the-arguments-for-automatic-dicovery-of-police-disciplinary-records/.