Justice Action Center Student Capstone Journal

Project No. 06/07-05

An Analysis of the Impact of Discovery Rules on Dispositions in Criminal Cases

Connie Solimeo New York Law School

Class of 2007

This paper can be downloaded without charge from: www.nyls.edu/pdfs/capstone060705.pdf

Copyright 2007 by Author

THIS PROJECT IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR LEGAL ADVICE. BECAUSE THE LAW CHANGES QUICKLY,

WE CANNOT GUARANTEE THAT THE INFORMATION PROVIDED IN THIS PROJECT WILL ALWAYS BE UP-TO-DATE OR CORRECT. IF YOU HAVE A

LEGAL PROBLEM, WE URGE YOU TO CONTACT AN ATTORNEY.

JUSTICE ACTION CENTER CAPSTONE PROJECT

AN ANALYSIS OF THE IMPACT OF DISCOVERY RULES ON DISPOSITIONS

IN CRIMINAL CASES

Connie Solimeo May 11, 2007

TABLE OF CONTENTS

Introduction………………………………………………………………………………1 I. Background and Historical Perspective………………………………………………...2 II. Discovery Statutes and Rules…………………………………………………………..7 III. Implications of New York State’s Restrictive Discovery Statute……………………13 IV. The Discovery Process in New York City………………………………………… 14 V. New York County Lawyers Association Recommendations…………………………21 VI. Proposal for Implementing Consistent Discovery Practices in New York City……..23 VII. Conclusion …………...………...……………………………………...……….…...24

APPENDICES

APPENDIX A: Recommendation for Open File Discovery Process for New York City APPENDIX B: US Federal Rules of Criminal Procedure Rule 16 APPENDIX C: New York Criminal Procedure Law Article 240 APPENDIX D: New York Criminal Procedure Law Article 250 APPENDIX E: Rules Governing the Courts of the State of New Jersey APPENDIX F: Florida Rules of Criminal Procedure Rule 3.220 APPENDIX G: Arizona Rules of Criminal Procedure Rule 15 APPENDIX H: Massachusetts Rules of Criminal Procedure Rule 14

TABLE OF AUTHORITIES CASES Berger v. United States

295 U.S. 78 (1935)……………………………………………………………….17 Brady v. Maryland 373 U.S. 83, 87 (1963)……………………………………………………………4 Corbitt v. New Jersey

439 U.S. 212 (U.S. 1978)……………………………………………………...…16 People v. Copicotto

50 N.Y.2d 222, 230 (1980).………………………………………………............1 People v. Jackson

585 N.E.2d 795 (1991)…………………………………………………………..18 People v. Rosario

9 N.Y.2d 286, 289 (1961)………………………………………………………..18 State v. Tune

13 N.J. 203 (1953)………………………………………………………………...5 States v. Smith Grading and Paving, Inc. 760 F.2d 527, 531 (4th Cir.), cert. denied, 474 U.S. 1005 (1985)………………..8 United States v. Bagley 473 U.S. 667 (1985)……………………………………………………………….4 United States v. Salerno 481 U.S. 739………………………………………………………………………4 United States v. Wade

388 U.S. 218 (1967)………………………………………..……………………19 Williams v. Florida

399 U.S 78, 113 (1970)…………………………………………....………….…..1

STATUTES

Recommendation for Open File Discovery Process for New York City…...APPENDIX A US Federal Rules of Criminal Procedure Rule 16…………………...…….. APPENDIX B New York Criminal Procedure Law Article 240……………………............APPENDIX C New York Criminal Procedure Law Article 250……...………...………….APPENDIX D Rules Governing the Courts of the State of New Jersey …………...…….. APPENDIX E Florida Rules of Criminal Procedure Rule 3.220…………………….……...APPENDIX F Arizona Rules of Criminal Procedure Rule 15…………………………….. APPENDIX G Massachusetts Rules of Criminal Procedure Rule 14………………………APPENDIX H

Introduction

A criminal trial is, in part, a search for the truth, and the criminal justice system was designed

to ensure that no one is punished unless the state has convinced a jury that the defendant is guilty

beyond a reasonable doubt.1 If criminal defendants truly are presumed to be innocent, then,

arguably, the most effective criminal discovery rules would provide as much information as

possible to support transparency throughout the process. Full disclosure would enable both the

prosecution and the defense to fully investigate their cases, and would support the system’s

overall objectives of punishing the guilty and acquitting the innocent. As the Supreme Court has

stated, “The adversary system of trial is hardly an end in itself; it is not yet a poker game in

which players enjoy an absolute right always to conceal their cards until played.”2

Do the rules that govern discovery in criminal cases in New York further the state’s search for

the truth and its quest for justice? Criminal discovery in New York is largely governed by

Article 240 of New York’s Criminal Procedure Law. The New York State Court of Appeals

said, “To further the ends of justice and enhance ‘the fairness of the adversary system,’ the States

are free to experiment ‘with systems of broad discovery designed to achieve these goals.’” The

court noted that, “Article 240 represents one such effort.”3 This Capstone project considers

whether New York’s criminal discovery statute operates to further the state’s objectives and

recommends the implementation of a new procedure that would lead to a fairer, consistently

applied discovery process for all defendants in New York City’s criminal justice system.

Section I reviews the history of criminal discovery in the United States and considers the

arguments that have been advanced in support of and against expanding these rules. Section II

1 Williams v. Florida, 399 U.S 78, 113 (1970)... 2 See id. at 82, paraphrasing Justice Brennan. 3 People v. Copicotto, 50 N.Y.2d 222, 230 (1980).

analyzes current discovery rules, beginning at a high level with the rules that govern discovery in

federal criminal cases, and then analyzes the rules of several states, including New York. Section

III considers the affect of New York’s restrictive rules on the state’s criminal justice process. It

analyzes data on dispositions in New York, and compares that information with statistics on

dispositions in other states. Section IV narrows the focus to the local level, analyzing the

inconsistent application of New York’s Article 240 across the boroughs of New York City. It

considers the impact of the different approaches on dispositions in each borough, in terms of the

affect on the efficient administration of justice, as well as on perceptions of overall fairness in

the system. Section V reviews the results of a recent survey of New York City’s criminal

discovery practices and discusses the sponsor’s recommendations for improving the process.

Section VI proposes an approach for implementing a consistent discovery practice in New York

City, to improve the efficiency of the process and to institute a fairer procedure across the city’s

five boroughs.

I. Background and Historical Perspective

a) What is discovery?

Discovery is defined as the rights of parties in criminal litigation to notice of the evidence or

theories that their opponents will use at trial.4 Although a criminal trial is a search for the truth,

this search is carried out within the bounds of the rules of discovery. In almost every state,

discovery is based on statutes and court rules, but a defendant’s right to discovery can be based

on five different types of sources: 1) statutes; 2) court rules; 3) judicial power; 4) the common

4 FRANK. W. MILLER, ROBERT O. DAWSON, GEORGE E. DIX, & RAYMOND I. PARNAS, PROSECUTION AND ADJUDICATION 753 (5th edition 2000).

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law; and 5) the Constitution.5 The scope and timing of states’ discovery rule varies widely, from

the restrictive model of New York’s Article 240 and Federal Rule of Criminal Procedure 16, to

the broad rules of the ABA Standard model.6

In civil litigation, discovery rules give each party almost unfettered access to all of the

relevant information that the other party has available. That information can be disclosed through

use of depositions, interrogatories, document production, inspections, and physical and mental

examinations.7 In contrast to the transparency of the discovery process in civil cases, in criminal

prosecutions, where a defendant’s liberty or life is at stake, information shared between both

sides is much more limited.

The rules of the criminal discovery process govern a number of procedural aspects of the

criminal justice system: 1) the rules may involve providing notice, such as the requirement for

the defense to give notice of any alibi or insanity defense it intends to offer at trial, or the

government’s duty to give notice of whether it plans to offer the defendant’s confession; 2)

discovery rules govern the parties’ right of access to evidence , such as the right to inspect or

copy certain physical material; 3) the rules specify the type of information that one party must

provide to the other upon request, such as a copy of a defendant’s criminal record; and 4)

importantly, discovery rules govern the timing of when information must be disclosed, such as

what information is available before the trial begins, and what is provided after the formal

proceedings are underway.8

5 Jenny Roberts, Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases, 31 Fordham Urb. L.J. 1097, 1122 (May 2004). 6 MILLER, supra note 4, at 754, stating that, by 1975, the American Bar Association’s Standards Relating to Discovery and Procedure Before Trial had been substantially adopted by 22 states; the standards support broad discovery, with “early recognition and disposition of constitutional, collateral, and procedural issues.” 7 WAYNE R. LAFAVE, JERIOLD ISRAEL, NANCY J. KING, CRIMINAL PROCEDURE, 911 (3rd edition 2000). 8 MILLER, supra note 4, at 754.

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b) Historical Perspective

The Due Process Clause of the Constitution guarantees a defendant’s right to the presumption

of innocence in a criminal trial, a right which has been reinforced over centuries.9 This does not

mean, however, that a criminal defendant has always had a right to discovery. The Supreme

Court has determined that there is no constitutional mandate for broad discovery, but it has

recognized an exception for exculpatory evidence. 10 Even this exception is governed by a

narrow standard of materiality.11

Defendants in federal criminal cases had no right to discovery until Federal Rule of Criminal

Procedure 16 was promulgated in 1946.12 Following the introduction of this rule, there was

considerable debate in the 1950s and early 1960s over whether the rules for criminal discovery

should be expanded to be more like the broader guidelines that govern civil litigation.13 An

understanding of the debate is useful in evaluating the statutes and court rules that govern

criminal discovery today.

c) The Debate on Expanding Criminal Discovery Rules

Justice William Brennan and Justice Roger Traynor, of the Supreme Court of California, led a

strong movement for broader discovery in criminal cases. In a lecture at Washington University

in 1963, Justice Brennan questioned whether civil discovery techniques, which force both sides

9 See Justice Marshall’s dissent in United States v. Salerno, 481 U.S. 739, 763 (1987), quoting the Court in Coffin v. United States 156 U.S. 432, 453 (1895), “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” 10 Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities, 2006 Wis. L. Rev. 541, 561 (2006)., citing Brady v. Maryland, 373 U.S. 83, 87 (1963), where the Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 11 See, United States v. Bagley, 473 U.S. 667 (1985), where the court held that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” and “a ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” 12 MILLER, supra note 4, at 753. 13 LAFAVE, supra note 7, at 911.

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to “put all cards on the table,” should be extended to criminal prosecutions.14 He noted that

while a few states had made strides in allowing the accused discovery of the state’s case, most

states had not expanded their rules. He pointed out, with irony, that Justice Robert Jackson, who

served as the chief U.S. prosecutor at the Nuremburg War Crime trials, said that Soviet

prosecutors protested the adoption of American discovery procedures, because they would “not

be fair to defendants.”15

Justice Brennan reviewed many of the arguments for and against expanding discovery rules.

He cited four arguments that were advanced against expanded criminal discovery in an opinion

of a case decided when he was on the New Jersey Supreme Court.16 First, he noted the argument

that broader discovery could lead to increases in perjury and suppression of evidence, as a

defendant aware of the state’s case could procure false testimony and set up a false defense.17

Second, the defendant could take steps to bribe or threaten the state’s witnesses, and many

witnesses would be reluctant to come forward with information.18 Third, in light of the

defendant’s constitutional protection against self incrimination, discovery would become a one-

way street; allowing the defendant to discover the state’s case against him would make the

prosecutor’s task “almost insurmountable.”19 Finally, there was a comparison of American

procedures with England’s rules; arguably, English rules that allowed the accused broad

discovery were not appropriate as a guide for America, given the constantly expanding crime

14 William J. Brennan, Jr., The Criminal Prosecution: Sporting Event or Quest For Truth?, 1963 Wash. U. L. Q. 279 (June 1963). 15 Id. at 283. 16 See id., for Justice Brennan’s comments on the opinion written by Chief Justice Arthur T. Vanderbilt of the New Jersey Supreme Court in State v. Tune, 13 N.J. 203 (1953). Justice Brennan also commented in a footnote that, more recently, the New Jersey Supreme Court had substantially altered its view. 17 Id. at 289. 18 Id. 19 See also id. at page 292, where Justice Brennan referred to Learned Hand’s objection to expanding criminal discovery; he said the “accused has every advantage,” and stated, “Our procedure has been 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.”

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rate in the United States and the idea that the law-abiding instincts of the English are in “marked

contrast” to the disrespect shown for the law by certain segments of the American population.20

Justice Brennan cited several arguments in support of expanded discovery rules. He began

by asking whether the scales of justice were truly balanced.21 He pointed out that the majority of

defendants are indigent and said expanded criminal discovery could give them a better chance to

compete on more equal terms with the state, which gathers information against defendants

without real concern for expense.22 He noted that court-appointed lawyers usually come to a

case late in the process, after the state has had time to gather evidence; defense lawyers must do

what they can to defend their clients, “often long after the trail has grown cold.”23 He believed

that given their heavy responsibility, the defense should at least have the opportunity to

investigate the case while the evidence is fresh.24 He noted society’s interest in ensuring that the

innocent do not suffer and the guilty do not escape, and said that discovery, as a tool for truth, is

the most effective device for reducing the aspect of the adversary element to a minimum.25

Justice Brennan questioned whether denying a defendant access to all discovery turns a blind eye

to the presumption of innocence and the important public interest of acquitting the innocent.26

Finally, he pointed out that expanded discovery would benefit the prosecution as well as the

defense, by sharpening the issues, exposing untenable arguments, and efficiently marshalling the

evidence.27 He wondered whether expanded criminal discovery would result in more

20 Id. at 288-289. 21 Id. at 285. 22 Id. at 285-286. See also, U.S. Department of Justice - Office of Justice Programs, Bureau of Justice Statistics, Indigent Defense Statistics, http://www.ojp.gov/bjs/id.htm (1999) (last visited April 9, 2006), stating that in the nation’s 100 largest counties, public defenders handled 82% of all criminal cases. 23 Id. at 286. 24 Id. at 287. 25 Id. at 291. 26. Id. at 287. 27 Id.

6

dispositions without trial, if voluntary disclosure to the defense often results in guilty pleas.28 He

questioned the idea that expanded discovery would benefit the accused at the expense of the

state, citing the benefits experienced by states with expanded discovery; these benefits includ

preventing surprise during the proceedings and increasing the ability to prepare more effectively

ed

n

ative theories of the case that might enable the

defense to counter the prosecution’s assertions.33

II. Discovery Statutes and Rules

) Criminal Discovery in Federal Cases

for trial.29

In addition to the points that Justice Brennan raised, today, there is a debate over whether

limited discovery leads to wrongful convictions.30 The work of various innocence projects and

the use of DNA evidence have demonstrated that, despite all of the procedural protections in the

criminal justice system, judges and juries are sometimes convinced beyond a reasonable doubt of

a fact that is false.31 Arguably, truthful evidence is the best defense against false evidence, but i

order rebut false evidence, a defendant must have access to the “bad” evidence and must know

what evidence he will need to adequately defend himself at trial.32 As Justice Brennan noted,

defense counsel has limited resources, and may not be able to develop the evidence needed to

rebut the prosecutor’s case. Undiscovered evidence or lack of background data on government

witnesses could result in a failure to develop altern

a

28 Id. 29 Id. at 287-288. 30 Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities, 2006 Wis. L. Rev. 541, 549 (2006). 31 Andrew D. Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 Am. Crim. L. Rev. 1123, (Fall 2005). 32 Id. at 1126. 33 Id. at 1127-1128.

7

What statutes and rules govern the discovery process in today’s criminal justice sys

federal cases, Federal Rule of Criminal Procedure 16, the Jencks Act, and the rule developed in

Brady v. Maryland largely govern the process.

tem? In

and

al

at

t

hich such evidence must be disclosed, but it has said that "no due

process violation occurs as long as Brady material is disclosed to a defendant in time for its

effective use at trial."38

idely, in

terms of both the information that the prosecution must provide to the defense and in when that

34 Rule 16 lists the information that the

government must disclose to the defense, upon request, including the defendant’s statements

criminal records, documents and tangible objects, reports of physical or mental examinations,

and summaries of expert testimony that the government intends to introduce at trial. 35 The

Jencks Act codified the requirement that the government must disclose pre-trial statements by its

witnesses, but the government is not required to disclose these statements until after witnesses

have testified on direct examination.36 Beyond these duties, the prosecution has a constitution

obligation to disclose certain information to the defense. In Brady, the Supreme Court held th

due process requires that the prosecution must disclose all evidence favorable to a defendan

which is material to the defendant’s guilt or to punishment.37 The Court has not specifically

determined the time at w

b) Criminal Discovery in New York

At the local level, states are free to experiment and implement broader discovery rules. Most

state criminal proceedings are governed by statutes or court rules.39 States’ rules vary w

34 Brady, 373 U.S. at 87. 35 See Appendix B for the complete text of Rule 16. 36 STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE 996 (7th Edition 2000) 37 Brady, 373 U.S at 87. See also, United States v. Bagley, 473 U.S. 667, where the court said that favorable evidence includes both exculpatory and impeachment evidence, and United States v. Ruiz, 536 U.S. 622 (2202), where the Court determined that the Constitution did not require that the Brady right is a right related to the fairness of a trial, and there is no constitutional requirement that the information is provided prior to plea bargaining, ,supporting the principle that discovery is not required early in the process. 38 United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 531 (4th Cir.), cert. denied, 474 U.S. 1005 (1985). 39 LAFAVE Supra, note 7, at 915.

8

information must be disclosed. Some states have instituted transparent processes, with

considerable information shared between the parties early in the proceedings. Other states,

Proced statute:

of

of guilt or innocence… In short, pretrial discovery y the defense and prosecution contributes substantially to the fair and effective

the

l

ble

ly are not held in New York, since

prosecutors are more likely to rely on the grand jury.44

including New York, maintain more restrictive rules.40

In New York, discovery in criminal cases is mainly governed by Article 240 of the Criminal

ure Law, which is based on Rule 16.41 The New York Court of Appeals said the

…evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determinationbadministration of justice.”42

Despite this statement, in comparison with the rules of states with more expansive discovery,

Article 240 limits the information that a prosecutor must provide to a defendant, especially at

early stages of a criminal proceeding. Under the New York statute, discovery occurs at three

stages in the criminal justice process: 1) after an indictment or information is filed; 2) at pre-tria

hearings; and 3) at two different points during a trial: first, after the jury has been sworn in and

then, after the presentation of the people’s case.43 Preliminary hearings also can be a valua

source of pre-trial discovery, but these hearings general

40 See Prosser, supra note 9, at 578, stating that one state, California, which previously had liberalized discovery, moved back to limit the defense’s access to information when it implemented Proposition 115 in June of 1990. See, Laura Berend, Less Reliable Preliminary Hearings and Plea Bargains in Criminal Cases in California: Discovery Before and After Proposition 115, 48 Am. U. L. Rev. 465, describing the mover to limit rights of the defendant and increase the rights of the prosecution. 41 See Roberts, supra note 5, at 139, stating that that there are two major differences between Rule 16 and New York’s Article 240. First, under the federal rule, a witness statement is available to the defense only after the witness testifies, while under the New York statute, witness statements are furnished to the defense after the jury is sworn and before the prosecution makes its opening statement. Second, the federal rule limits the statements that are discoverable to those in writing, and signed or approved by the witness, while such adoption is not required under the New York statute. 42 Copicotto, 50 N.Y.2d at 226. 43 See New York Criminal Procedure Law Article 240 (2007). For the complete text of the statute, see Appendix A. 44 Prosecutors are likely to have a preliminary hearing in rare cases, when they want to test a witness or need corroboration before proceeding for a grand jury. Preliminary hearings may also be used when there is an issue related to a witness’s immunity, since immunity is only available to witnesses testifying before a grand jury.

9

After a defendant is indicted, the prosecution must make the following information available

to the defense: the defendant’s written or oral statements; the defendant or co-defendant’s grand

jury testimony, reports of physical or mental exams or scientific tests, photographs that will be

introduced at trial, the defendant’s property, tapes or electronic recordings that will be

introduced, the date, time, and place of the offense charged, and any material that is

constitutionally required.45 This stage of discovery does not include any information about

witnesses the prosecution is likely to call at trial; the prosecution is only required to provide that

information after the jury has been sworn in, before the prosecutor’s opening statement.

New York statutes also govern the information that the defendant must disclose to the

prosecution. After the indictment, the defense has a duty to disclose much of the same type of

information that the prosecution must disclose, such as reports of any physical or mental exams

or scientific tests, as well as photographs which it plans to use at trial.46 Under Article 250, the

defense must also provide notice of defenses or an alibi that it plans to offer at trial.47

c) Comparison of New York’s Rule with Those of Other States

The fairly narrow scope of New York’s statute is apparent when viewed in relation to those of

other states. Under many other states’ rules, discovery is provided earlier in the proceedings, and

considerably more information is disclosed. In New Jersey, for example, in addition to the items

that must be disclosed during the first stage of discovery in New York, a prosecutor must

disclose the following items within 14 days of an indictment: 1) the name and address of any

persons whom the prosecutor knows to have relevant evidence or information and whether they

may be called as witnesses; 2) the names and addresses of any witnesses the prosecution intends

45 See Appendix C for the full text of Article 240. 46 Id. 47 See Appendix D for the full text of New York Criminal Procedure Law Article 250.

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to call at trial, with a list of the witnesses’ prior convictions; 3) police reports; and 4) reports or

records of the defendant’s prior convictions.48 Once a defendant has requested discovery from

the prosecution, in addition to providing the same information which is required under the New

York statute, in New Jersey, the defense also must provide a list of the names and addresses of

persons who it plans to call at trial, as well as a list of any expert witnesses, with the experts’

qualifications, the subject matter of the testimony, and a copy of any report it plans to offer.

Florida’s law also grants broader discovery earlier in the proceedings, including the following

information which is not available under the New York statute: whether the state has any

material or information provided by a confidential informant; whether there has been any

electronic surveillance of the defendant or of conversations to which the defendant was a party

and any related documents; and whether there has been any search and seizure, along with the

related documents.49 Another important difference is that under Florida’s statute, after the filing

of the charging document, either party may conduct depositions of some witnesses.50 These

depositions are an opportunity for each side to discover new evidence, including information that

was unknown to the police or prosecutor.51 Florida defense attorneys value this right, but law

enforcement officials and state legislators have tried to abolish the requirement, saying the

system has grown “too convenient for criminals and too costly for taxpayers.”52 To date, these

efforts have been unsuccessful. In fact, a statute that went into effect in July 2005, which ensured

48 See Appendix E for the full text of New Jersey Court Rules 3:13-3 and 3:13-4, also available at http://www.judiciary.state.nj.us/rules/r3-13.htm (last visited April 28, 2007). 49 See Appendix F for the full text of Florida Rules of Court Service, Rule 3.220 50 See John F. Yetter, Discovery Depositions in Florida Criminal Proceedings: Should They Survive? , 16 Fla. St. U.L. Rev. 675, 695 (Fall 1988), stating that Florida, New Hampshire, North Dakota and Vermont the defense may take discovery depositions as of right, and, in Texas, the defense may take in depositions after seeking court approval, and stating that the Florida Supreme Court's Commission on Criminal Discovery report stated that, although depositions are not required by the federal or state constitutions, they “make a unique and significant contribution to a fair and economically efficient determination of factual issues in the criminal process." 51 Prosser, supra note 9, at 612. 52 Press Release, Office of the Attorney General of Florida, Top Officials Urge Sweeping Criminal Justice Reforms, http://myfloridalegal.com/newsrel.nsf/newsreleases/CDB6A1B622B14499852561E7006CB36E, March 15, 1995 (last visited May 6, 2007).

11

both sides in a criminal case have the right to a speedy trial, authorized a judge to postpone a trial

date if the defense can show that a witness failed to attend a disposition.53

In Arizona, at the arraignment in felony cases, the prosecution must provide any original or

supplemental report prepared by a law enforcement agency in connection with the crime, if the

information was in the prosecutor’s possession at the time of the filing.54 Then, within 30 days

of an arraignment in superior court, the prosecution must disclose the same type of information

covered by New York’s statute, as well as additional evidence such as: a list of the names and

addresses of any witnesses it intends to call, along with their statements, a list of any prior act by

the defendant that it intends to use to prove motive, intent, or knowledge, whether there has been

any electronic surveillance, whether the case involved an informant, and whether a search

warrant was executed.55 This duty extends to material in the possession or control of any

member of the prosecution’s staff, any law enforcement agency, or any other person un

prosecutor’s direction or control.

der the

56

Prosecutors in Massachusetts also must provide defendants with more expansive discovery

than prosecutors in New York. At or prior to a pre-trial conference, a few examples of the types

of information that the prosecutor must provide include: grand jury minutes and the written or

recorded statements of those who testified; the names and addresses of prospective witnesses; a

summary of identification procedures; and disclosure of all promises or inducements made to

witnesses the prosecution intends to call at trial.57 The defendant must provide reciprocal

discovery for most of the items that the prosecutor provides.

53 See Dan Christensen, In Florida, Speedy Trials for All, Not Only the Accused, Daily Business Review, June 21, 2005, available at http://www.law.com/jsp/article.jsp?id=1119270949494 (last visited April 15, 2007), also stating that defense attorneys argued against this bill, saying that defendants need sufficient time to prepare, and the bill infringed on their right to due process. 54 See Appendix G for the full text of Arizona Criminal Procedure Rule 15. 55 Id. 56 Id. 57 See Appendix H for the full text of Massachusetts Court Rules, Criminal Procedure Rule 14.

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III. Implications of New York State’s Restrictive Discovery Statute

It is clear that New York’s criminal discovery rules are narrower than those of the rules of the

states described above. What is the impact of New York’s restrictive rules on the criminal

process and on dispositions within the state? Since each of the states collects information in

different ways at different times, a scientific comparison of the results is not possible, but some

broad inferences can be drawn by comparing published statistics on dispositions in New York

criminal cases with statistics from other states.

Consider, for example, Justice Brennan’s contention that expanded discovery could benefit

both the prosecution and the defense by sharpening the issues, exposing untenable arguments,

and efficiently marshalling the evidence, which would lead to even more dispositions without

trial. Do states with more expansive discovery rules have fewer cases that go to trial?

In 2005, in felony cases in New York state, 65.4% of all cases were disposed of by pleas,

compared to 71.4% in felonies in New Jersey Superior Courts, 78.5% for all cases in

Massachusetts Superior Court, and 77.8% for all cases in Florida (pleas in all cases, before

trial).58 A difference of approximately 20% is significant, given that there were 156,713 felony

dispositions in New York in 2005. That translates into more than 30,000 additional felony cases

that either went to trial or were eventually dismissed.

Does broader discovery in criminal cases sharpen the lawyers’ understanding of the issues

and expose untenable arguments? A comparison of statistics supports the idea that more

expansive discovery may lead to a better understanding and better dispositions. In 2005,

58 See New York State Division of Criminal Justice Services, Dispositions of Felony Arrests, available at: http://criminaljustice.state.ny.us/crimnet/ojsa/dispos/nys.htm (last visited May 12, 2007). For New Jersey statistics, see data on Criminal Resolutions, provided by Mark Davies, Chief of the New Jersey Judiciary’s Quantitative Research Unit, available on file with author. For Arizona’s statistics, see , Superior Court Criminal Case Activity, available at: http://www.supreme.state.az.us/stats/2005DataBookV1TOC.htm (last visited May 12, 2007). For Florida’s statistics, see Trial Court Statistics, available at: http://trialstats.flcourts.org/TrialCourtStats.aspx (last visited May 12, 2007). For Massachusetts Statistics, see Criminal Statistics Breakdown of Dispositions, available at: http://170.63.97.68/courts/courtsandjudges/courts/superiorcourt/2005statscrimbreakdispo.html (last visited May 12, 2007)..

13

dismissals accounted for 23.2% of all felony dispositions in New York, as compared to 14% in

New Jersey, 14.1% in Arizona, and 11.3% in Florida (dismissals in all cases, before trial). The

statistics related to acquittals are mixed. In New York .5% of cases ended in acquittals in 2005,

compared with 1% in New Jersey, .4% in Arizona.

IV. The Discovery Process in New York City

New York’s Article 240 is not followed consistently across the state, much less throughout

the boroughs of New York City. In 2004, the New York County Lawyers’ Association’s

(“NYCLA”) Criminal Courts Task Force conducted a survey on discovery practices in

misdemeanors in four New York City boroughs.59 The results showed a significant variance in

the practices across each of the offices; in Brooklyn, Queens, and the Bronx, prosecutors employ

a more liberal policy, disclosing information to defense attorneys earlier in the process, and often

eliminating the need for formal discovery demands.60 In contrast, the Manhattan District

Attorney’s office employs a more formulaic disclosure approach that closely follows statute. The

survey confirmed that the offices that follow a more expansive discovery policy almost

universally endorsed the practice, and said it enabled them to resolve cases more expeditiously,

reduce adversarial posturing, and eliminate unnecessary, boilerplate motion practice.61

a) Arguments In Support of and Against Open File Discovery in New York City

The Brooklyn District Attorney’s office’s relatively expansive discovery policy was

implemented in the 1ate 1980s, largely as a result of budget considerations. The District

Attorney felt the time and effort spent in motion practice was counterproductive to the efficient

59 New York County Lawyers’ Association, Discovery in New York Criminal Courts Survey Report & Recommendations,1, 2006, which reviewed criminal discovery practices for misdemeanors in Manhattan, Queens, Brooklyn, and the Bronx. 60 Id. 61Id. at 2.

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administration of justice and looked for ways to make the process more efficient. The office

implemented a new policy in an attempt to reduce costs and shorten the period from arraignment

to disposition; its objective was to reduce the number of pre-trial adjournments to three instances

in each case: the arraignment, the pre-trial conference, and the suppression hearing. Within six

months, the office realized benefits in terms of reduced costs and quicker dispositions.62

Under Brooklyn’s open file discovery policy, the prosecution gives the defendant access to all

of the information available in its files.63 After the Brooklyn District Attorney implemented the

new policy, the Executive Director of Brooklyn Defender Services spoke about Brooklyn’s open

file discovery policy at a hearing on public defense services in New York; she said that

prosecutors provided her office with police reports, grand jury minutes, and everything related to

the case, early in the proceedings, although the practice was not required by law.64 Her office

was able to reduce the number of hours spent on boiler plate motions that rarely provided clients

with useful information, and the defense attorneys were able to investigate cases more

thoroughly and negotiate better plea bargains.65 The Executive Director said that, as a result of

the new policy, her office was able to take on additional cases without additional funding, and

she believed that this practice could benefit the entire state.66

Some district attorneys do not see the benefits of open file discovery. A former Manhattan

prosecutor pointed out that while the practice might bring about faster results, the dispositions

would not necessarily be “better.” But what does better mean? Consider the situation that the

former prosecutor described, where a defendant who might be willing to plead guilty after 62 The source of this information is a judge who worked in Kings County at the time the changes were made; further details are on file with the author. 63 But see Bagley, 473 U.S at 675, where the Supreme Court said,"the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." 64 In the Matter of Fact Finding Hearings held by the New York State Defenders Association and the League of Women Voters of the State of New York, The Association of the Bar of the City of New York (October 14, 1998), available at: http://www.nysda.org/Hot_Topics/Fact_Finding_Hearings/NYC_Transcript.pdf (last visited May 6, 2007). 65 Id. 66 Id.

15

reviewing the prosecutor’s file would receive a sentence of 25 years to life in prison. The former

prosecutor questioned whether justice would have been served, if the prosecutor believed that the

people would have prevailed at trial, and that the judge would have imposed a longer sentence.67

Prosecutors also argue that, in some cases, providing broader discovery does not lead to quicker

dispositions. For example, if a defendant was ready to plead guilty but learned that the

prosecutor was having trouble locating a witness, he might change his mind about accepting a

plea and insist on going to trial. If the witness was located, the defendant might then change his

mind again and accept the plea. Disclosing the additional information would have drawn out the

case, and more time would have been required to reach the same disposition.

New York City defense attorneys respond that allowing for more expansive disclosure earlier

in the process would not lead to delays. They argue, instead, that cases could be resolved more

quickly if more information was disclosed sooner. For example, a defense attorney recalled the

case of a client who was leaning toward pleading not guilty. The client was shown a photograph

of the crime scene. He then understood that the police had been able to observe the drug sale for

which he had been charged, and he decided to plead guilty. The defense attorney noted that

specific evidence does not grow stronger or weaker over time, and so disclosing evidence earlier

in the process should not change the end result. It just brings about the disposition more quickly.

67 This information came from an interview conducted with a former district attorney. Further details are on file with the author. For an opinion that discusses the difference in the sentence received after a plea bargain as compared to one received after a defendant goes to trial, see Corbitt v. New Jersey, 439 U.S. 212, 222 (U.S. 1978), where the court recognized that a state may encourage plea bargaining and offer substantial benefits to a client that pleads guilty, rather than going to trial, as the process is “mutually beneficial to both the defendant and the State.” The Court described the mutually of benefit as follows: “The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.” Arguably, in the situation described above, given the benefits on both sides, justice would have been serviced by imposition of a 25 year to life sentence.

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b) Impacts on New York City Discovery Practices on Dispositions

A review of the statistics for dispositions in 2006 in New York City Criminal Courts cases

supports an inference that open file discovery leads to quicker dispositions. The average time

from arraignment to disposition is about 114 days in New York, compared to 105 days in the

Bronx, 96 days in Brooklyn, and 100 days in Queens.68 Cases are also dismissed more quickly

in the other boroughs than in Manhattan. The average time from arraignment to dismissal in

Manhattan is 160 days, compared to 121 days in the Bronx, 112 days in Brooklyn, and 115 days

in Queens.69 However, in general, pleas bargains were reached more quickly in Manhattan than

in the other boroughs, with an average of 93 day in Manhattan and Queens, as compared to 103

days in the Bronx, and 101 days in Brooklyn.70 This challenges the contention that disclosing

more information earlier in the process leads to quicker plea bargains.

c) Impacts of New York City Discovery Practices on the Search for Truth

In addition to issues related to the efficient administration of justice, there is the issue of

whether narrow discovery rules act as tools for uncovering the truth in a criminal case. If there is

a question of whether or not more expansive discovery leads to “better” results, how is “better”

defined? In a criminal trial, “better” cannot be defined in terms of “wins” and “losses.” The

Supreme Court has said that while defense attorneys act as zealous advocates for their clients,

prosecutors are advocates for the people; the government's fundamental interest in criminal

litigation “is not that it shall win a case, but that justice shall be done."71 The points that Justice

Brennan made 50 years ago are still relevant: a criminal trial should be a quest for the truth, a

68 Figures from the State of New York Unified Court System – NYC Criminal Court – Arrest Cases. Statistics are on file with the author. 69 Id. 70 Id. 71 Berger v. United States, 295 U.S. 78, 88 (1935).

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serious inquiry in distinguishing guilt from innocence, and discovery, a tool for truth, is still the

most effective device in reducing the adversarial elements of the process to a minimum.72

Consider the following example when evaluating whether New York’s statute is really a tool

for truth. Under Article 240.45, the prosecution is required to disclose any written or recorded

statement of a witness that the prosecution intends to call at trial, and any records of a witness’s

prior convictions or the existence of any pending criminal action; however, the prosecutor is not

required to disclose this information until after the jury is sworn in, before making his opening

statement. A Manhattan defense attorney described an experience in a case where he received

250 pages of Rosario material, which covers prior statements of witnesses who testify at trial,

two hours before a hearing, and received 300 pages of material the following day.73 By the end

of the trial, the attorney had received 700 pages. This calls to mind Justice Brennan’s point that

a defense attorney is at a disadvantage because he comes to the case late in the process, after the

state has had time to investigate and compile evidence. Is it reasonable for the defense to receive

so much material at this point in a trial? Although this practice is acceptable under the statute,

consider how it affects a defendant’s right to effective counsel under the Sixth Amendment.74

How effectively can a defense attorney represent a client under these conditions?

Some defense attorneys believe that prosecutors blur the line between Brady material, which

must be disclosed in time for it to be used effectively at trial, and Rosario material, which is

72 Brennan, supra note 13, at 381. 73 See People v. Rosario, 9 N.Y.2d 286, 289 (1961), where the New York Court of Appeals determined that the defense has a right “to examine a witness' prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination.” Prior to this, New York had only allowed the defense to see and use a prosecution witness statement if the statement contained information inconsistent to the witness’s testimony at trial. In Rosario, the Court of Appeals still upheld the defendant’s conviction, saying that although the court was generally slow to disregard error as harmless, in this case, “we are as convinced as judges may ever be, in view of the overwhelming proof of guilt and the absence of any real inconsistency between prior statement and trial testimony, that the jury would not have decided the case differently even if defense counsel had had the use of the statements in question. In other words, it may not be said that any substantial right of the appellant was prejudiced by the trial court's erroneous ruling.” See also, People v. Jackson, 585 N.E.2d 795, 802 (1991), where the New York Court of Appeals said that, under a motion to vacate a conviction, rather than a direct appeal of a conviction, the defense “must demonstrate a reasonable possibility that the failure to disclose the Rosario material contributed to the verdict." 74 U.S. CONST. amend. VI.

18

disclosed to the defense after the jury is sworn. If the prosecution can classify a statement as

Rosario material, rather than evidence that it must disclose under Brady, it can delay providing

the information to the defense until later in the proceedings. A defense attorney described the

case of a defendant charged with armed robbery. At the grand jury, a witness who testified and

identified the defendant as a participant in the crime failed to mention that the robbers wore

masks. This information was not disclosed to the defense as it was not considered to fall within

the requirements of the Brady rule. When the evidence came to light, the defense lost its

argument at the Wade hearing to suppress the out-of-court identification.75 Eventually, however,

the case was dismissed. Considerable time, money, and effort could have been saved on both

sides if the information had been disclosed earlier in the process. This case clearly provides an

example of how a disposition likely would have been reached earlier in the process if the

prosecution had disclosed the evidence. In this case, broader discovery would have helped in the

search for the truth.

d) Impacts on Perceptions of Overall Fairness

The scope of criminal discovery also impacts perceptions of the overall fairness of the system.

A criminal defense attorney pointed out that there is a level of cynicism associated with

Manhattan’s criminal justice system. If a defendant believes he was treated unfairly, it is likely

that he will be more cynical about the process in the future, and this might affect his interactions

with society and his respect for the law going forward. This idea is supported in the literature on

procedural justice. Studies indicate that, regardless of the legal outcome people receive in the

criminal justice process, they are more accepting of the result, and of the legal system in general, 75 Black’s Law Dictionary defines a Wade hearing as a “pre-trial hearing in which the defendant contests the validity of his or her out-of-court identification. If the court finds that the identification was tainted by unconstitutional methods, the prosecution cannot use the identification and must link the defendant to the crime by other means," based on United States v. Wade, 388 U.S. 218 (1967). Black's Law Dictionary, Abridged Seventh Edition (2000).

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when they believe that the decision resulted from a fair process. Procedural unfairness may erode

the likelihood that defendants will obey the law in the future76

Many defendants in Manhattan make pleas based only on the complaint, since the level of

information provided under Article 240 after the arraignment is relatively limited. A criminal

defense attorney points out that clients often feel “railroaded” by the system, by both the

prosecutor and their own lawyers, who they often feel have not worked hard enough on their

behalf. The lawyer said that his clients display more of an acceptance of the result when they

have seen the body of evidence the people have compiled against them, as the studies on

procedural justice indicate.77

This perception of the overall fairness of the system also can affect a confined offender’s

reentry into the community, which proponents of the theory of therapeutic jurisprudence believe

is a major concern across the country.78 Programs to ease an offender’s reentry into society

include education, substance abuse counseling, job training, and mentoring.79 The theory of

therapeutic jurisprudence uses psychological and other social science knowledge to determine

76 See David A. Hoffman and Michael P. O'Shea, Can Law and Economics Be Both Practical and Principled?, 53 Ala. L. Rev. 335, 382-383, (Winter 2002), for a review of the theories of E. Allan Lind and Tom R. Tyler’s book, The Social Psychology of Procedural Justice. Lind and Tyler point out that in the context of plea bargaining, the characteristic of the system that individuals consistently prefer is litigant control over the proceedings. See also, Hon. Juan Ramirez, Jr. and Amy D. Ronner, Voiceless Billy Budd: Melville's Tribute to the Sixth Amendment, 41 Cal. W. L. Rev. 103, 120, quoting Tom Tyler as saying that studies show “primary influence is the person's evaluation of the fairness of the judicial procedure itself, not their evaluations of the outcome,” and that when people see legal authorities as less legitimate, they are less likely to obey the law. 77 The attorney agreed that some defendants in Manhattan do see more evidence than is mandated by the statute, since a prosecutor may voluntarily disclose information earlier in the process, depending on the case and the prosecutor’s relationship with the defense attorney. 78 See Bruce J. Winick** & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic, 13 Clinical L. Rev. 605, 623 (Fall 2006). See also, Astrid Birgden and Tony Ward, Jurisprudential Considerations: Pragmatic Psychology Through a Therapeutic Jurisprudence Lens: Psycholegal Soft Spots in the Criminal Justice System, 9 Psych. Pub. Pol. and L. 334 (September / December, 2003), stating that the theory builds upon the idea that the law can function as a therapeutic agent, and the action of those involved in the legal system, such as prosecutors and judges, can produce therapeutic or antitherapeutic consequences. See also, James L. Nolan, Jr. Redefining Criminal Courts: Problem-Solving and the Meaning of Justice, 40 Am. Crim. L. Rev. 1541, 1542 (Fall 2003), , for a discussion of problem-solving courts, which often use methods grounded in Therapeutic Jurisprudence, such as “integration of treatment services with judicial case processing, ongoing judicial intervention, close monitoring of and immediate response to behavior, multi-disciplinary involvement, and collaboration with community based, and government organizations. Problem-solving courts, therefore, involve both a theoretical reorientation and a concomitant structural and processual transformation.” 79 See U.S. Department of Justice Office of Justice Programs, Learn About Reentry, available at: http://www.reentry.gov/learn.html, (last visited May 12, 2007), describing re-entry programs that aim to effectively re-integrate offenders into the community after incarceration, by offering programs such as education, substance abuse programs, job training, and mentoring.

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ways in which the law can enhance the well being of people affected by the legal process.80

Proponents of this theory believe that the law can serve a therapeutic function, and the actions of

those involved in the legal system can either have therapeutic or “antitherapeutic”

consequences.81 This idea that the law can have therapeutic effects is consistent with the

criminal justice system’s objective of rehabilitating offenders. Therapeutic jurisprudence calls

for a study of the consequences of the actions of those in the legal system, to determine whether

“antitherapeutic” effects can be reduced without affecting due process or impacting the ability to

meet the objectives of the system.82 Could negative or “antitherapeutic” effects be reduced by

providing more expansive discovery, while still achieving a just result?

V. New York County Lawyers Association Recommendations

NYCLA made three recommendations in March 2006, based on the results of its Criminal

Courts Task Force’s survey on discovery in misdemeanors in New York City criminal courts:83

1. Open file discovery, or discovery by stipulation, should be instituted citywide,

and there should be an ongoing, continuing duty to disclose throughout the

process as materials are received by the prosecution; also, there should be

reciprocal discovery by the defense, commensurate with the prosecution’s

disclosure.

2. There should be a more coordinated mechanism to disclose information from

agencies such as law enforcement to the prosecutor’s office. The information

should be delivered electronically, to facilitate the process.

80 Brigden, supra note 50. 81 Winick, supra note at 185. 82 Id. 83 Discovery in New York Criminal Courts Survey Report and Recommendations, supra note 39, at 23-24.

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3. Policies and procedures for each borough should be formally published as soon as

possible.

The first recommendation is consistent with the survey’s finding that the boroughs which had

embraced more liberal discovery practices “almost universally embraced and endorsed the

practice.” 84 The recommendation was also supported by the findings that the burden on all

parties in the criminal justice process, in terms of drafting, filing, responding to, and deciding

formal requests, appears to prolong the process and delay informed decision making.85 The task

force noted that greater efficiency in discovery is “synonymous with fairness and justice.”86 The

second recommendation was based on the task force’s findings that there was a lack of any

consistent, institutional publication of each district attorney’s office’s policy on discovery in

misdemeanor cases.87 Most survey respondents learned about each borough’s policy through “on

the job” experience or word of mouth.88 The third recommendation was based on the finding

that delays in disclosure in all boroughs was, in part, attributable to delays in the prosecution’s

receipt of information from the police department and other agencies.89 The NYCLA adopted

the report on March 28, 2006.90

84 Id. at 2. 85 Id. See also pages 13-14, stating that in its survey response, the Kings County District Attorney’s office noted that the practice “expedites cases” and that there was no need for defense attorneys to file motions or for its assistants to response to them. Queens responded that preparing additional paperwork for every misdemeanor case, including those disposed of at an early stage, “would not only significantly increase costs but would also delay our ability to provide defendants with a speedy arraignment.” The Bronx said the prosecution benefited from “minimal discovery litigation.” In contrast, the Manhattan office responded that its policy “strikes a fair balance between the defendant’s needs and the People’s case management in Criminal Court, where caseloads are very heavy.” 86 Discovery in New York Criminal Courts Survey Report and Recommendations, supra note 39, at 2-3. 87 Id. at 2. 88 Id . 89 Id. at 23-24. In New York City, the New York Police Department (“NYDP”( has automated delivery of some information to the District Attorney’s Offices. For information on this, see also, the NYPD’s Computer Training Unit site, available at: http://home2.nyc.gov/html/nypd/html/dc_training/html/training/cotb_copa_sts_ctu.html . Currently, there are online versions of The Complaint Follow-Up form (the DD5), The Stop and Frisk Form (the UF-250), the Online Booking System Arrest Worksheet. However, additional process improvements could result from automating forms such as the Property Clerk’s Invoice and the Letter of Transmittal – Evidence. Attorneys also indicated that it would be useful to have information online about proceedings in other boroughs, but there would be considerable requirements for information security related to the provision of this information. 90 Press Release, New York County Lawyers Association, NYCLA Adopts Criminal Courts Task Force Discovery Report: "Open File" Discovery Endorsed Citywide, (March 28, 2006), available at: http://www.nycla.org/siteFiles/Publications/Publications228_0.pdf, (last visited April 22, 2007).

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VI. Proposal for Implementing Consistent Discovery Practices in New York City

This Capstone project proposes that a policy be published, in the form of court rules, for use

in all New York City boroughs, based on the open file discovery practices currently followed by

the majority of the city’s District Attorney’s offices.91 This would have the effect of

implementing consistent practices city-wide, would allow all defendants to receive the same

level of discovery, and would likely increase overall perceptions of fairness of the system.

Today, a defendant charged with a crime in Brooklyn is provided with more information about

the people’s case than defendants in other boroughs. This defendant can make a better-informed

decision about whether or not to go to trial or accept a plea than a defendant across the river in

Manhattan. The right to disclosure should not be dependent on geography. As Justice Brennan’s

said, “I think we must all agree that the opportunity for discovery on equal terms should either be

the right of all accused, or the right of none.”92

The recommendation that the consistent policy should be formally published, as a court rule,

is important for several reasons: 1) it would help attorneys to learn about the changes; 2) the

information would be available to defendants as well as to the lawyers, giving defendants a better

idea of what to expect in the process; and 3) published procedures would help to educate new

practitioners in each borough, so that they would no longer need to relay on word of mouth or

courtroom experience to gain understand the process.

This proposal is consistent with the open file discovery approach followed by the majority of

the boroughs of New York City. It does not exceed the boundaries of Article 240, in terms of the

information that either the prosecution or the defense must provide, but it recommends that all

91 As Justice Brennan noted in his lecture, at 293-294, fashioning court rules to support criminal discovery is appropriate since some of the rules that govern discovery, such as those of Brady and Rosario, have come from court decisions. Also, court rules are appropriate given the complex problems that arise, as there is a need to strike a balance in individual cases. Finally, any rules affecting information the defendant must disclose to the prosecution may involve constitutional questions related to the privilege against self-incrimination. 92 Brennan, supra note 13, at 282.

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discoverable material be provided earlier in the process. A copy of the proposal is available in

Appendix A.

VII. Conclusion

The criminal discovery process in New York, governed by Article 240 of the Criminal

Procedure Law, is considerably more restrictive than the procedures of many other states. These

rules are not applied consistently across the state, or across the boroughs of New York City.

This Capstone project recommends the publication and implementation of a consistent policy for

open file discovery in New York’s Criminal Courts, based on procedures already in place in

several of the city’s boroughs. The proposal recommends discovery of the same material covered

by Article 240, but it recommends that the information be provided earlier in the proceedings.

Open file discovery has resulted in benefits to both the state and defendants in the boroughs that

have already implemented the procedure, and implementing this policy consistently across the

city would lead to a fairer process for all defendants. The benefits of this might then spur the

state legislature to revise and broaden Article 240, in terms of both the timing and the scope of

discovery in criminal cases.

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APPENDIX A

Recommendation for Open File Discovery Process for New York City

Discovery upon request by defendant: Except to the extent protected by court order, upon request by a defendant against whom an indictment or information has been filed, the prosecution shall permit defense counsel to inspect and copy all material pursuant to NY CLS CPL § 240.20 .1, § 240.43, § 240.44, and § 240.45.1, within 28 days of the filing of the indictment or information. Discovery upon request by prosecutor: Within 28 days of an indictment or information, a defendant who has requested discovery from the prosecution pursuant to NY CLS CPL § 240.20 .1, § 240.44, and § 240.45.1 shall permit prosecution to inspect and copy all material pursuant to NY CLS CPL § 240.30 and § 240.45.2. Pursuant to § 240.80, a request for discovery by defendant shall be made within 30 days of the arraignment or before commencement of the trial. If defendant is not represented by counsel and has requested an adjournment to obtain counsel or to have counsel appointed, this 30 day period will begin on the date counsel appears on the defendant’s behalf. Continuing Duty to Disclose: Subsequent to compliance with an initial request by the defendant or prosecution, if either the party discovers additional material or witnesses which would have been subject to discovery under the rules stated above, that party shall promptly notify the other party and the other party shall be permitted to inspect or copy all additional material. If at any time during the proceedings the court is notified that either party has failed to comply, at the discretion of the court, it may grant discovery of the material, grant a continuance, or prohibit the party from introducing into evidence the material not disclosed. Refusal of Request The prosecutor or defense may refuse to disclose any information which he reasonably believes is not discoverable under the sections specified above. The refusal must be in writing, stating reasons for such belief, and shall be delivered to the other party and file with the court Protective Orders Upon motion by either party or upon its own initiative, and for good cause shown, the court in which an action is pending may issue a protective order denying, limiting, delaying, conditioning, or regulating discovery, pursuant to § 240.50.

APPENDIX B

UNITED STATES CODE SERVICE Copyright © 2007 Matthew Bender & Company, Inc.,

one of the LEXIS Publishing (TM) companies All rights reserved

*** CURRENT THROUGH CHANGES RECEIVED MARCH, 2007 ***

FEDERAL RULES OF CRIMINAL PROCEDURE

TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

USCS Fed Rules Crim Proc R 16 Rule 16. Discovery and Inspection (a) Government's Disclosure. (1) Information Subject to Disclosure. (A) Defendant's Oral Statement. Upon a defendant's request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial. (B) Defendant's Written or Recorded Statement. Upon a defendant's request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following: (i) any relevant written or recorded statement by the defendant if: . the statement is within the government's possession, custody, or control; and . the attorney for the government knows--or through due diligence could know--that the statement exists; (ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent; and (iii) the defendant's recorded testimony before a grand jury relating to the charged offense. (C) Organizational Defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement: (i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or (ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent. (D) Defendant's Prior Record. Upon a defendant's request, the government must furnish the defendant with a copy of the defendant's prior criminal record that is within the government's possession, custody, or control if the attorney for the government knows--or through due diligence could know--that the record exists. (E) Documents and Objects. Upon a defendant's request, the government must permit the

defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant. (F) Reports of Examinations and Tests. Upon a defendant's request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the government's possession, custody, or control; (ii) the attorney for the government knows--or through due diligence could know--that the item exists; and (iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial. (G) Expert witnesses. At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications. (2) Information Not Subject to Disclosure. Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500. (3) Grand Jury Transcripts. This rule does not apply to the discovery or inspection of a grand jury's recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1), and 26.2. (b) Defendant's Disclosure. (1) Information Subject to Disclosure. (A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if: (i) the item is within the defendant's possession, custody, or control; and (ii) the defendant intends to use the item in the defendant's case-in-chief at trial. (B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the defendant's possession, custody, or control; and (ii) the defendant intends to use the item in the defendant's case-in-chief at trial, or intends

to call the witness who prepared the report and the report relates to the witness's testimony. (C) Expert witnesses. The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if-- (i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or (ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition. This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications (2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of: (A) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or (B) a statement made to the defendant, or the defendant's attorney or agent, by: (i) the defendant; (ii) a government or defense witness; or (iii) a prospective government or defense witness. (c) Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if: (1) the evidence or material is subject to discovery or inspection under this rule; and (2) the other party previously requested, or the court ordered, its production. (d) Regulating Discovery. (1) Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal. (2) Failure to Comply. If a party fails to comply with this rule, the court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances.

APPENDIX C

NEW YORK CONSOLIDATED LAW SERVICE

Copyright (c) 2007 Matthew Bender & Company, Inc., one of the LEXIS Publishing (TM) companies

All rights reserved

*** THIS SECTION IS CURRENT THROUGH CH. 16, 03/31/2007 *** *** WITH THE EXCEPTION OF CH. 14 ***

CRIMINAL PROCEDURE LAW

PART TWO. THE PRINCIPAL PROCEEDINGS TITLE J. PROSECUTION OF INDICTMENTS IN SUPERIOR COURTS--PLEA TO

SENTENCE ARTICLE 240. DISCOVERY

NY CLS CPL § 240.10 (2007)

§ 240.10. Discovery; definition of terms The following definitions are applicable to this article:

1. "Demand to produce" means a written notice served by and on a party to a criminal action, without leave of the court, demanding to inspect property pursuant to this article and giving reasonable notice of the time at which the demanding party wishes to inspect the property designated.

2. "Attorneys' work product" means property to the extent that it contains the opinions, theories or conclusions of the prosecutor, defense counsel or members of their legal staffs.

3. "Property" means any existing tangible personal or real property, including, but not limited to, books, records, reports, memoranda, papers, photographs, tapes or other electronic recordings, articles of clothing, fingerprints, blood samples, fingernail scrapings or handwriting specimens, but excluding attorneys' work product.

4. "At the trial" means as part of the people's or the defendant's direct case.

NY CLS CPL § 240.20 (2007) § 240.20. Discovery; upon demand of defendant 1. Except to the extent protected by court order, upon a demand to produce by a defendant against whom an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending, the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing, the following property:

(a) Any written, recorded or oral statement of the defendant, and of a co-defendant to be tried jointly, made, other than in the course of the criminal transaction, to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him;

(b) Any transcript of testimony relating to the criminal action or proceeding pending against the defendant, given by the defendant, or by a co-defendant to be tried jointly, before any grand jury;

(c) Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial;

(d) Any photograph or drawing relating to the criminal action or proceeding which was made or completed by a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial;

(e) Any photograph, photocopy or other reproduction made by or at the direction of a police officer, peace officer or prosecutor of any property prior to its release pursuant to the provisions of section 450.10 of the penal law, irrespective of whether the people intend to introduce at trial the property or the photograph, photocopy or other reproduction.

(f) Any other property obtained from the defendant, or a co-defendant to be tried jointly;

(g) Any tapes or other electronic recordings which the prosecutor intends to introduce at trial, irrespective of whether such recording was made during the course of the criminal transaction;

(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.

(i) The approximate date, time and place of the offense charged and of defendant's arrest.

(j) In any prosecution under penal law section 156.05 or 156.10, the time, place and manner of notice given pursuant to subdivision six of section 156.00 of such law.

(k) in any prosecution commenced in a manner set forth in this subdivision alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to this article, any other provision of law, or the constitution of this state or of the United States, any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial. 2. The prosecutor shall make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided, that the prosecutor shall not be

required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain.

NY CLS CPL § 240.30 (2007) § 240.30. Discovery; upon demand of prosecutor 1. Except to the extent protected by court order, upon a demand to produce by the prosecutor, a defendant against whom an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending shall disclose and make available for inspection, photographing, copying or testing, subject to constitutional limitations:

(a) any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test, experiment, or comparisons, made by or at the request or direction of, the defendant, if the defendant intends to introduce such report or document at trial, or if the defendant has filed a notice of intent to proffer psychiatric evidence and such report or document relates thereto, or if such report or document was made by a person, other than defendant, whom defendant intends to call as a witness at trial; and

(b) any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial. 2. The defense shall make a diligent good faith effort to make such property available for discovery where it exists but the property is not within its possession, custody or control, provided, that the defendant shall not be required to obtain by subpoena duces tecum demanded material that the prosecutor may thereby obtain.

NY CLS CPL § 240.40 (2007) § 240.40. Discovery; upon court order 1. Upon motion of a defendant against whom an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending, the court in which such accusatory instrument is pending:

(a) must order discovery as to any material not disclosed upon a demand pursuant to section 240.20, if it finds that the prosecutor's refusal to disclose such material is not justified;

(b) must, unless it is satisfied that the people have shown good cause why such an order should not be issued, order discovery or any other order authorized by subdivision one of section 240.70 as to any material not disclosed upon demand pursuant to section 240.20 where the prosecutor has failed to serve a timely written refusal pursuant to section 240.35; and

(c) may order discovery with respect to any other property, which the people intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable. Upon granting the motion pursuant to paragraph (c) hereof, the court shall, upon motion of the people showing such to be material to the preparation of their case and that the request is reasonable,

condition its order of discovery by further directing discovery by the people of property, of the same kind or character as that authorized to be inspected by the defendant, which he intends to introduce at the trial. 2. Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending:

(a) must order discovery as to any property not disclosed upon a demand pursuant to section 240.30, if it finds that the defendant's refusal to disclose such material is not justified; and

(b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to: (i) Appear in a line-up; (ii) Speak for identification by witness or potential witness; (iii) Be fingerprinted; (iv) Pose for photographs not involving reenactment of an event; (v) Permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto; (vi) Provide specimens of his handwriting; (vii) Submit to a reasonable physical or medical inspection of his body. This subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States. This section shall not be construed to limit or otherwise affect the administration of a chemical test where otherwise authorized pursuant to section one thousand one hundred ninety-four-a of the vehicle and traffic law. [n1] 3. An order pursuant to this section may be denied, limited or conditioned as provided in section 240.50. § 240.43. Discovery; disclosure of prior uncharged criminal, vicious or immoral acts Upon a request by a defendant, the prosecutor shall notify the defendant of all specific instances of a defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant. Such notification by the prosecutor shall be made immediately prior to the commencement of jury selection, except that the court may, in its discretion, order such notification and make its determination as to the admissibility for impeachment purposes of such conduct within a period of three days, excluding Saturdays, Sundays and holidays, prior to the commencement of jury selection.

NY CLS CPL § 240.44 (2007) § 240.44. Discovery; upon pre-trial hearing

Subject to a protective order, at a pre-trial hearing held in a criminal court at which a witness is called to testify, each party, at the conclusion of the direct examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed:

1. Any written or recorded statement, including any testimony before a grand jury, made by such witness other than the defendant which relates to the subject matter of the witness's testimony.

2. A record of a judgment of conviction of such witness other than the defendant if the record of conviction is known by the prosecutor or defendant, as the case may be, to exist.

3. The existence of any pending criminal action against such witness other than the defendant if the pending criminal action is known by the prosecutor or defendant, as the case may be, to exist.

NY CLS CPL § 240.45 (2007) § 240.45. Discovery; upon trial, of prior statements and criminal history of witnesses 1. After the jury has been sworn and before the prosecutor's opening address, or in the case of a single judge trial after commencement and before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defendant:

(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony;

(b) A record of judgment of conviction of a witness the people intend to call at trial if the record of conviction is known by the prosecutor to exist;

(c) The existence of any pending criminal action against a witness the people intend to call at trial, if the pending criminal action is known by the prosecutor to exist. The provisions of paragraphs (b) and (c) of this subdivision shall not be construed to require the prosecutor to fingerprint a witness or otherwise cause the division of criminal justice services or other law enforcement agency or court to issue a report concerning a witness. 2. After presentation of the people's direct case and before the presentation of the defendant's direct case, the defendant shall, subject to a protective order, make available to the prosecutor:

(a) any written or recorded statement made by a person other than the defendant whom the defendant intends to call as a witness at the trial, and which relates to the subject matter of the witness's testimony;

(b) a record of judgment of conviction of a witness, other than the defendant, the defendant intends to call at trial if the record of conviction is known by the defendant to exist;

(c) the existence of any pending criminal action against a witness, other than the defendant, the defendant intends to call at trial, if the pending criminal action is known by the defendant to exist.

NY CLS CPL § 240.50 (2007) § 240.50. Discovery; protective orders 1. The court in which the criminal action is pending may, upon motion of either party, or of any affected person, or upon determination of a motion of either party for an order of discovery, or upon its own initiative, issue a protective order denying, limiting, conditioning, delaying or regulating discovery pursuant to this article for good cause, including constitutional limitations, danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors which outweighs the usefulness of the discovery. 2. An order limiting, conditioning, delaying or regulating discovery may, among other things, require that any material copied or derived therefrom be maintained in the exclusive possession of the attorney for the discovering party and be used for the exclusive purpose of preparing for the defense or prosecution of the criminal action. 3. A motion for a protective order shall suspend discovery of the particular matter in dispute. 4. Notwithstanding any other provision of this article, the personal residence address of a police officer or correction officer shall not be required to be disclosed except pursuant to an order issued by a court following a finding of good cause.

NY CLS CPL § 240.60 (2007) § 240.60. Discovery; continuing duty to disclose If, after complying with the provisions of this article or an order pursuant thereto, a party finds, either before or during trial, additional material subject to discovery or covered by such order, he shall promptly comply with the demand or order, refuse to comply with the demand where refusal is authorized, or apply for a protective order.

NY CLS CPL § 240.70 (2007) § 240.70. Discovery; sanctions; fees 1. If, during the course of discovery proceedings, the court finds that a party has failed to comply with any of the provisions of this article, the court may order such party to permit discovery of the property not previously disclosed, grant a continuance, issue a protective order,

prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action. 2. The failure of the prosecution to call as a witness a person specified in subdivision one of section 240.20 of this article or of any party to introduce disclosed material at the trial shall not, by itself, constitute grounds for any sanction or for adverse comment thereupon by any party in summation to the jury or at any other point. 3. A fee for copies of records required to be disclosed may be charged. Such fee shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by law.

NY CLS CPL § 240.75 (2007) § 240.75. [.] [n1]Discovery; certain violations The failure of the prosecutor or any agent of the prosecutor to disclose statements that are required to be disclosed under subdivision one of section 240.44 or paragraph (a) of subdivision one of section 240.45 of this article shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding; provided, however, that nothing in this section shall affect or limit any right the defendant may have to a re-opened pre-trial hearing when such statements were disclosed before the close of evidence at trial.

NY CLS CPL § 240.80 (2007) § 240.80. Discovery; when demand, refusal and compliance made 1. A demand to produce shall be made within thirty days after arraignment and before the commencement of trial. If the defendant is not represented by counsel, and has requested an adjournment to obtain counsel or to have counsel assigned, the thirty-day period shall commence, for purposes of a demand by the defendant, on the date counsel initially appears on his behalf. However, the court may direct compliance with a demand to produce that, for good cause shown, could not have been made within the time specified. 2. A refusal to comply with a demand to produce shall be made within fifteen days of the service of the demand to produce, but for good cause may be made thereafter. 3. Absent a refusal to comply with a demand to produce, compliance with such demand shall be made within fifteen days of the service of the demand or as soon thereafter as practicable.

NY CLS CPL § 240.90 (2007) § 240.90. Discovery; motion procedure 1. A motion by a prosecutor for discovery shall be made within forty-five days after arraignment, but for good cause shown may be made at any time before commencement of trial. 2. A motion by a defendant for discovery shall be made as prescribed in section 255.20 of this chapter. 3. Where the interests of justice so require, the court may permit a party to a motion for an order of discovery or a protective order, or other affected person, to submit papers or to testify ex parte or in camera. Any such papers and transcript of such testimony shall be sealed, but shall constitute a part of the record on appeal.

APPENDIX D

NEW YORK CONSOLIDATED LAW SERVICE

Copyright (c) 2007 Matthew Bender & Company, Inc., one of the LEXIS Publishing (TM) companies

All rights reserved

*** THIS SECTION IS CURRENT THROUGH CH. 16, 03/31/2007 *** *** WITH THE EXCEPTION OF CH. 14 ***

CRIMINAL PROCEDURE LAW

PART TWO. THE PRINCIPAL PROCEEDINGS TITLE J. PROSECUTION OF INDICTMENTS IN SUPERIOR COURTS--PLEA TO

SENTENCE ARTICLE 250. PRE-TRIAL NOTICES OF DEFENSES

NY CLS CPL § 250.10 (2007) § 250.10. Notice of intent to proffer psychiatric evidence; examination of defendant upon application of prosecutor 1. As used in this section, the term "psychiatric evidence" means: (a) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect. (b) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance as defined in paragraph (a) of subdivision one of section 125.25 of the penal law and paragraph (a) of subdivision two of section 125.27 of the penal law. (c) Evidence of mental disease or defect to be offered by the defendant in connection with any other defense not specified in the preceding paragraphs. 2. Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment. In the interest of justice and for good cause shown, however, the court may permit such service and filing to be made at any later time prior to the close of the evidence. 3. When a defendant, pursuant to subdivision two of this section, serves notice of intent to present psychiatric evidence, the district attorney may apply to the court, upon notice to the

defendant, for an order directing that the defendant submit to an examination by a psychiatrist or licensed psychologist as defined in article one hundred fifty-three of the education law designated by the district attorney. If the application is granted, the psychiatrist or psychologist designated to conduct the examination must notify the district attorney and counsel for the defendant of the time and place of the examination. Defendant has a right to have his counsel present at such examination. The district attorney may also be present. The role of each counsel at such examination is that of an observer, and neither counsel shall be permitted to take an active role at the examination. 4. After the conclusion of the examination, the psychiatrist or psychologist must promptly prepare a written report of his findings and evaluation. A copy of such report must be made available to the district attorney and to the counsel for the defendant. No transcript or recording of the examination is required, but if one is made, it shall be made available to both parties prior to the trial. 5. If the court finds that the defendant has willfully refused to cooperate fully in the examination ordered pursuant to subdivision three of this section it may preclude introduction of testimony by a psychiatrist or psychologist concerning mental disease or defect of the defendant at trial. Where, however, the defendant has other proof of his affirmative defense, and the court has found that the defendant did not submit to or cooperate fully in the examination ordered by the court, this other evidence, if otherwise competent, shall be admissible. In such case, the court must instruct the jury that the defendant did not submit to or cooperate fully in the pre-trial psychiatric examination ordered by the court pursuant to subdivison three of this section and that such failure may be considered in determining the merits of the affirmative defense.

NY CLS CPL § 250.20 (2007) § 250.20. Notice of alibi 1. At any time, not more than twenty days after arraignment, the people may serve upon the defendant or his counsel, and file a copy thereof with the court, a demand that if the defendant intends to offer a trial defense that at the time of the commission of the crime charged he was at some place or places other than the scene of the crime, and to call witnesses in support of such defense, he must, within eight days of service of such demand, serve upon the people, and file a copy thereof with the court, a "notice of alibi," reciting (a) the place or places where the defendant claims to have been at the time in question, and (b) the names, the residential addresses, the places of employment and the addresses thereof of every such alibi witness upon whom he intends to rely. For good cause shown, the court may extend the period for service of the notice. 2. Within a reasonable time after receipt of the defendant's witness list but not later than ten days before trial, the people must serve upon the defendant or his counsel, and file a copy thereof with the court, a list of the witnesses the people propose to offer in rebuttal to discredit the defendant's alibi at the trial together with the residential addresses, the places of employment and the addresses thereof of any such rebuttal witnesses. A witness who will testify that the defendant

was at the scene of the crime is not such an alibi rebuttal witness. For good cause shown, the court may extend the period for service of the list of witnesses by the people. 3. If at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, or if having served such a notice he calls a witness not specified therein, the court may exclude any testimony of such witness relating to the alibi defense. The court may in its discretion receive such testimony, but before doing so, it must, upon application of the people, grant an adjournment not in excess of three days. 4. Similarly, if the people fail to serve and file a list of any rebuttal witnesses, the provisions of subdivision three, above, shall reciprocally apply. 5. Both the defendant and the people shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their witness lists as provided in this section.

NY CLS CPL § 250.30 (2007) § 250.30. Notice of defenses in offenses involving computers 1. In any prosecution in which the defendant seeks to invoke any of the defenses specified in section 156.50 of the penal law, the defendant must within forty-five days after arraignment and not less than twenty days before the commencement of the trial serve upon the people and file with the court a written notice of his intention to present such defense. For good cause shown, the court may extend the period for service of the notice. 2. The notice served must specify the subdivision or subdivisions upon which the defendant relies and must also state the reasonable grounds that led the defendant to believe that he had the authorization required by the statute or the right required by the statute to engage in such conduct. 3. If at the trial the defendant seeks to invoke any of the defenses specified in section 156.50 of the penal law without having served the notice as required, or seeks to invoke a subdivision or a ground not specified in the notice, the court may exclude any testimony or evidence in regard to the defense, or any subdivision or ground, not noticed. The court may in its discretion, for good cause shown, receive such testimony or evidence, but before doing so, it may, upon application of the people, grant an adjournment.

NY CLS CPL § 250.40 (2007) § 250.40. Notice of intent to seek death penalty 1. A sentence of death may not be imposed upon a defendant convicted of murder in the first degree unless, pursuant to subdivision two of this section, the people file with the court and serve upon the defendant a notice of intent to seek the death penalty.

2. In any prosecution in which the people seek a sentence of death, the people shall, within one hundred twenty days of the defendant's arraignment upon an indictment charging the defendant with murder in the first degree, serve upon the defendant and file with the court in which the indictment is pending a written notice of intention to seek the death penalty. For good cause shown the court may extend the period for service and filing of the notice. 3. Notwithstanding any other provisions of law, where the people file a notice of intent to seek the death penalty pursuant to this section the defendant shall be entitled to an additional sixty days for the purpose of filing new motions or supplementing pending motions. 4. A notice of intent to seek the death penalty may be withdrawn at any time by a written notice of withdrawal filed with the court and served upon the defendant. Once withdrawn the notice of intent to seek the death penalty may not be refiled.

APPENDIX E

RULES GOVERNING THE COURTS OF THE STATE OF NEW JERSEY

NOTE: Rules include amendments through those effective February 13, 2007. 3:13-3. Discovery and Inspection

(a) Pre-indictment Discovery. Where the prosecutor has made a pre-indictment plea offer, the prosecutor shall upon request permit defense counsel to inspect and copy or photograph any relevant material which would be discoverable following an indictment pursuant to section (b) or (c).

(b) Post Indictment Discovery. A copy of the prosecutor's discovery shall be delivered to the criminal division manager's office, or shall be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. Defense counsel shall obtain a copy of the discovery from the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. A defendant who does not seek discovery from the State shall so notify the criminal division manager's office and the prosecutor, and the defendant need not provide discovery to the State pursuant to sections (d) or (g), except as required by Rule 3:12-1 or otherwise required by law. Defense counsel will forward a copy of discovery materials to the prosecuting attorney no later than 7 days before the arraignment/status conference.

(c) Discovery by the Defendant. The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):

(1) books, tangible objects, papers or documents obtained from or belonging to the defendant;

(2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded;

(3) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecutor;

(4) reports or records of prior convictions of the defendant; (5) books, papers, documents, or copies thereof, or tangible objects, buildings or

places which are within the possession, custody or control of the prosecutor; (6) names and addresses of any persons whom the prosecutor knows to have relevant

evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses;

(7) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons;

(8) police reports which are within the possession, custody, or control of the prosecutor;

(9) names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the groundsfor each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial.

(d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):

(1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of defense counsel;

(2) any relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are within the possession, custody or control of defense counsel;

(3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements;

(4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the State may call as a witness at trial;

(5) names and address of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial the expert may, upon application by the prosecutor, be barred from testifying at trial.

(e) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney or agents, in connection with the investigation, prosecution or defense of the matter nor does it require discovery by the State of records or statements, signed or unsigned, of defendant made to defendant's attorney or agents.

(f) (f) Protective Orders. (1) Grounds. Upon motion and for good cause shown the court may at any time order

that the discovery or inspection sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective

investigation of criminal activity; protection of confidential relationships and privileges recognized by law; any other relevant considerations.

(2) Procedure. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal.

(g) Continuing Duty to Disclose; Failure to Comply. If subsequent to the compliance with a request by the prosecuting attorney or defense counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, that party shall promptlynotify the other party or that party's attorney of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

Note: Source-R.R. 3:5-11(a)(b)(c)(d)(e)(f)(g)(h). Paragraphs (b)(c)(f) and (h) deleted; paragraph (a) amended and paragraphs (d)(e)(g) and (i) amended and redesignated June 29, 1973 to be effective September 10, 1973. Paragraph (b) amended July 17, 1975 to be effective September 8, 1975; paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraphs (a) and (b) amended July 22, 1983 to be effective September 12, 1983; new paragraphs (a) and (b) added, former paragraphs (a), (b), (c), (d) and (f) amended and redesignated paragraphs (c), (d), (e), (f) and (g) respectively and former paragraph (e) deleted July 13, 1994, to be effective January 1, 1995; Rule redesignation of July 13, 1994 eliminated December 9, 1994, to be effective January 1, 1995. 3:13-4. Additional Discovery in Capital Cases

(a) In addition to any discovery provided pursuant to R. 3:13-3, the prosecuting attorney shall provide the defendant with the indictment containing the aggravating factors that the State intends to prove at the penalty phase together with all discovery bearing on these factors. The prosecuting attorney shall provide the defendant with any discovery in the possession of the prosecution that is relevant to the existence of any mitigating factors. Such discovery shall be transmitted at the arraignment/status conference unless the time to do so is enlarged for good cause. If the aggravating factors are not contained in the original indictment, but are contained in a supplemental indictment, the prosecuting attorney shall provide the defendant with any discovery bearing on these factors immediately upon return of the supplemental indictment, unless the time to do so is enlarged for good cause shown.

(b) The defendant shall provide the prosecuting attorney with an itemization setting forth the mitigating factors the defendant intends to rely on at the sentencing hearing together with any discovery in the possession of the defendant in support of those factors. Such

discovery shall be transmitted to the prosecuting attorney forthwith upon a verdict of guilty, or plea of guilty, to a crime punishable by death.

(c) The duty to disclose the discovery relevant to the existence of aggravating and mitigating factors shall be a continuing one.

Note: Adopted September 28, 1982 to be effective immediately; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995; paragraph (a) amended March 14, 2005 to be effective immediately. From the Civil Court Rules: (g) Limitation on Frequency of Discovery. The frequency or extent of use of the discovery methods otherwise permitted under these rules shall be limited by the court if it determines that: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act pursuant to a motion or on its own initiative after reasonable notice to the parties. 4:10-3 Protective Orders On motion by a party or by the person from whom discovery is sought, the court, for good cause shown or by stipulation of the parties, may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following: (a) That the discovery not be had; (b) That the discovery may be had only on specified terms and conditions, including a designation of the time or place; (c) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (d) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (e) That discovery be conducted with no one present except persons designated by the court; (f) That a deposition after being sealed be opened only by order of the court;

(g) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (h) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion. When a protective order has been entered pursuant to this rule, either by stipulation of the parties or after a finding of good cause, a non-party may, on a proper showing pursuant to R. 4:33-1 or R. 4:33-2, intervene for the purpose of challenging the protective order on the ground that there is no good cause for the continuation of the order or portions thereof. Neither vacation nor modification of the protective order, however, establishes a public right of access to unfiled discovery materials.

APPENDIX F

FLORIDA RULES OF COURT SERVICE Copyright 2006 by Matthew Bender & Company, Inc.

a member of the LexisNexis Group. All rights reserved.

*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH NOVEMBER 1,

2006 *** *** ANNOTATIONS CURRENT THROUGH OCTOBER 19, 2006 ***

Florida Rules of Criminal Procedure

VI. Discovery

Fla. R. Crim. P. 3.220 (2006) Review Court Orders which may amend this Rule. Rule 3.220. Discovery (a) Notice of Discovery. --After the filing of the charging document, a defendant may elect to participate in the discovery process provided by these rules, including the taking of discovery depositions, by filing with the court and serving on the prosecuting attorney a "Notice of Discovery" which shall bind both the prosecution and defendant to all discovery procedures contained in these rules. Participation by a defendant in the discovery process, including the taking of any deposition of a defendant or the filing of a public records request under chapter 119, Florida Statutes, for law enforcement records relating to the defendant's pending prosecution, which are nonexempt as a result of a codefendant's participation in discovery, shall be an election to participate in discovery and triggers a reciprocal discovery obligation for the defendant. If any defendant knowingly or purposely shares in discovery obtained by a codefendant, the defendant shall be deemed to have elected to participate in discovery.

(b) Prosecutor's Discovery Obligation.

(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state's possession or control:

(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto or to any similar fact evidence to be presented at trial under section 90.404(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:

(i) Category A. --These witnesses shall include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi witnesses, (3) witnesses who were present when a recorded or unrecorded

statement was taken from or made by a defendant or codefendant, which shall be separately identified within this category, (4) investigating officers, (5) witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged, (6) child hearsay witnesses, and (7) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

(ii) Category B. --All witnesses not listed in either Category A or Category C.

(iii) Category C. --All witnesses who performed only ministerial functions or whom the prosecutor does not intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense;

(B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The term "statement" as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term "statement" is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled;

(C) any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements;

(D) any written or recorded statements and the substance of any oral statements made by a co-defendant if the trial is to be a joint one;

(E) those portions of recorded grand jury minutes that contain testimony of the defendant;

(F) any tangible papers or objects that were obtained from or belonged to the defendant;

(G) whether the state has any material or information that has been provided by a confidential informant;

(H) whether there has been any electronic surveillance, including wiretapping, of the premises of the defendant or of conversations to which the defendant was a party and any documents relating thereto;

(I) whether there has been any search or seizure and any documents relating thereto;

(J) reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons; and

(K) any tangible papers or objects that the prosecuting attorney intends to use in the hearing or trial and that were not obtained from or that did not belong to the defendant.

(2) If the court determines, in camera, that any police or investigative report contains irrelevant, sensitive information or information interrelated with other crimes or criminal activities and the disclosure of the contents of the police report may seriously impair law enforcement or jeopardize the investigation of the other crimes or activities, the court may prohibit or partially restrict the disclosure.

(3) The court may prohibit the state from introducing into evidence any of the foregoing material not disclosed, so as to secure and maintain fairness in the just determination of the cause.

(4) As soon as practicable after the filing of the charging document the prosecutor shall disclose to the defendant any material information within the state's possession or control that tends to negate the guilt of the defendant as to any offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations.

(c) Disclosure to Prosecution.

(1) After the filing of the charging document and subject to constitutional limitations, the court may require a defendant to:

(A) appear in a lineup;

(B) speak for identification by witnesses to an offense;

(C) be fingerprinted;

(D) pose for photographs not involving re-enactment of a scene;

(E) try on articles of clothing;

(F) permit the taking of specimens of material under the defendant's fingernails;

(G) permit the taking of samples of the defendant's blood, hair, and other materials of the defendant's body that involves no unreasonable intrusion thereof;

(H) provide specimens of the defendant's handwriting; and

(I) submit to a reasonable physical or medical inspection of the defendant's body.

(2) If the personal appearance of a defendant is required for the foregoing purposes, reasonable notice of the time and location of the appearance shall be given by the prosecuting attorney to the defendant and his or her counsel. Provisions may be made for appearances for such purposes in an order admitting a defendant to bail or providing for pretrial release.

(d) Defendant's Obligation.

(1) If a defendant elects to participate in discovery, either through filing the appropriate notice or by participating in any discovery process, including the taking of a discovery deposition, the following disclosures shall be made:

(A) Within 15 days after receipt by the defendant of the Discovery Exhibit furnished by the prosecutor pursuant to subdivision (b)(1)(A) of this rule, the defendant shall furnish to the prosecutor a written list of the names and addresses of all witnesses whom the defendant expects to call as witnesses at the trial or hearing. When the prosecutor subpoenas a witness whose name has been furnished by the defendant, except for trial subpoenas, the rules applicable to the taking of depositions shall apply.

(B) Within 15 days after receipt of the prosecutor's Discovery Exhibit the defendant shall serve a written Discovery Exhibit that shall disclose to and permit the prosecutor to inspect, copy, test, and photograph the following information and material that is in the defendant's possession or control:

(i) the statement of any person listed in subdivision (d)(1)(A), other than that of the defendant;

(ii) reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons; and

(iii) any tangible papers or objects that the defendant intends to use in the hearing or trial.

(2) The prosecutor and defendant shall perform their obligations under this rule in a manner mutually agreeable or as ordered by the court.

(3) The filing of a motion for protective order by the prosecutor will automatically stay the times provided for in this subdivision. If a protective order is granted, the defendant may, within 2 days thereafter, or at any time before the prosecutor furnishes the information or material that is the subject of the motion for protective order, withdraw the defendant's notice of discovery and not be required to furnish reciprocal discovery.

(e) Restricting Disclosure. --The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.

(f) Additional Discovery. --On a showing of materiality, the court may require such other discovery to the parties as justice may require.

(g) Matters Not Subject to Disclosure.

(1) Work Product. --Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.

(2) Informants. --Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant's identity will infringe the constitutional rights of the defendant.

(h) Discovery Depositions.

(1) Generally. --At any time after the filing of the charging document any party may take the deposition upon oral examination of any person authorized by this rule. A party taking a deposition shall give reasonable written notice to each other party and shall make a good faith effort to coordinate the date, time, and location of the deposition to accommodate the schedules of other parties and the witness to be deposed. The notice shall state the time and the location where the deposition is to be taken, the name of each person to be examined, and a certificate of counsel that a good faith effort was made to coordinate the deposition schedule. After notice to the parties the court may, for good cause shown, extend or shorten the time and may change the location of the deposition. Except as provided herein, the procedure for taking the deposition, including the scope of the examination, and the issuance of a subpoena (except a subpoena duces tecum) for deposition by an attorney of record in the action, shall be the same as that provided in the Florida Rules of Civil Procedure. Any deposition taken pursuant to this rule may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a

witness. The trial court or the clerk of the court may, upon application, issue subpoenas for the persons whose depositions are to be taken. In any case, including multiple defendants or consolidated cases, no person shall be deposed more than once except by consent of the parties or by order of the court issued on good cause shown. A witness who is a resident of the state may be required to attend a deposition only in the county where the witness resides, where the witness is employed, or where the witness regularly transacts his or her business in person. A witness who refuses to obey a duly served subpoena may be adjudged in contempt of the court from which the subpoena issued.

(A) The defendant may, without leave of court, take the deposition of any witness listed by the prosecutor as a Category A witness or listed by a co-defendant as a witness to be called at a joint trial or hearing. After receipt by the defendant of the Discovery Exhibit, the defendant may, without leave of court, take the deposition of any unlisted witness who may have information relevant to the offense charged. The prosecutor may, without leave of court, take the deposition of any witness listed by the defendant to be called at a trial or hearing.

(B) No party may take the deposition of a witness listed by the prosecutor as a Category B witness except upon leave of court with good cause shown. In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexities of the issues involved, the complexity of the testimony of the witness (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition.

(C) A witness listed by the prosecutor as a Category C witness shall not be subject to deposition unless the court determines that the witness should be listed in another category.

(D) No deposition shall be taken in a case in which the defendant is charged only with a misdemeanor or a criminal traffic offense when all other discovery provided by this rule has been complied with unless good cause can be shown to the trial court. In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness' testimony (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition. However, this prohibition against the taking of depositions shall not be applicable if following the furnishing of discovery by the defendant the state then takes the statement of a listed defense witness pursuant to section 27.04, Florida Statutes.

(2) Transcripts. --No transcript of a deposition for which a county may be obligated to expend funds shall be ordered by a party unless it is:

(A) agreed between the state and any defendant that the deposition should be transcribed and a written agreement certifying that the deposed witness is material or specifying other good cause is filed with the court or

(B) ordered by the court on a showing that the deposed witness is material or on showing of good cause.

This rule shall not apply to applications for reimbursement of costs pursuant to section 939.06, Florida Statutes, and article I, section 9, of the Florida Constitution.

(3) Location of Deposition. --Depositions of witnesses residing in the county in which the trial is to take place shall be taken in the building in which the trial shall be held, such other location as is agreed on by the parties, or a location designated by the court. Depositions of witnesses residing outside the county in which the trial is to take place shall be taken in a court

reporter's office in the county or state in which the witness resides, such other location as is agreed on by the parties, or a location designated by the court.

(4) Depositions of Sensitive Witnesses. --Depositions of children under the age of 16 shall be videotaped unless otherwise ordered by the court. The court may order the videotaping of a deposition or the taking of a deposition of a witness with fragile emotional strength to be in the presence of the trial judge or a special magistrate.

(5) Depositions of Law Enforcement Officers. --Subject to the general provisions of subdivision (h)(1), law enforcement officers shall appear for deposition, without subpoena, upon written notice of taking deposition delivered at the address of the law enforcement agency or department, or an address designated by the law enforcement agency or department, five days prior to the date of the deposition. Law enforcement officers who fail to appear for deposition after being served notice are subject to contempt proceedings.

(6) Witness Coordinating Office/Notice of Taking Deposition. --If a witness coordinating office has been established in the jurisdiction pursuant to applicable Florida Statutes, the deposition of any witness should be coordinated through that office. The witness coordinating office should attempt to schedule the depositions of a witness at a time and location convenient for the witness and acceptable to the parties.

(7) Defendant's Physical Presence. --A defendant shall not be physically present at a deposition except on stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant on a showing of good cause. The court may consider (A) the need for the physical presence of the defendant to obtain effective discovery, (B) the intimidating effect of the defendant's presence on the witness, if any, (C) any cost or inconvenience which may result, and (D) any alternative electronic or audio/visual means available.

(8) Telephonic Statements. --On stipulation of the parties and the consent of the witness, the statement of a law enforcement officer may be taken by telephone in lieu of the deposition of the officer. In such case, the officer need not be under oath. The statement, however, shall be recorded and may be used for impeachment at trial as a prior inconsistent statement pursuant to the Florida Evidence Code.

(i) Investigations Not to Be Impeded. --Except as is otherwise provided as to matters not subject to disclosure or restricted by protective orders, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information (except the defendant) to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel's investigation of the case.

(j) Continuing Duty to Disclose. --If, subsequent to compliance with the rules, a party discovers additional witnesses or material that the party would have been under a duty to disclose or produce at the time of the previous compliance, the party shall promptly disclose or produce the witnesses or material in the same manner as required under these rules for initial discovery.

(k) Court May Alter Times. --The court may alter the times for compliance with any discovery under these rules on good cause shown.

(l) Protective Orders.

(1) Motion to Restrict Disclosure of Matters. --On a showing of good cause, the court shall at any time order that specified disclosures be restricted, deferred, or exempted from discovery, that certain matters not be inquired into, that the scope of the deposition be limited to certain matters, that a deposition be sealed and after being sealed be opened only by order of the court, or make such other order as is appropriate to protect a witness from harassment, unnecessary inconvenience, or invasion of privacy, including prohibiting the taking of a deposition. All material and information to which a party is entitled, however, must be disclosed in time to permit the party to make beneficial use of it.

(2) Motion to Terminate or Limit Examination. --At any time during the taking of a deposition, on motion of a party or of the deponent, and upon a showing that the examination is being conducted in bad faith or in such manner as to unreasonably annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the circuit court where the deposition is being taken may (1) terminate the deposition, (2) limit the scope and manner of the taking of the deposition, (3) limit the time of the deposition, (4) continue the deposition to a later time, (5) order the deposition to be taken in open court, and, in addition, may (6) impose any sanction authorized by this rule. If the order terminates the deposition, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of any party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

(m) In Camera and Ex Parte Proceedings.

(1) Any person may move for an order denying or regulating disclosure of sensitive matters. The court may consider the matters contained in the motion in camera.

(2) Upon request, the court shall allow the defendant to make an ex parte showing of good cause for taking the deposition of a Category B witness.

(3) A record shall be made of proceedings authorized under this subdivision. If the court enters an order granting relief after an in camera inspection or ex parte showing, the entire record of the proceeding shall be sealed and preserved and be made available to the appellate court in the event of an appeal.

(n) Sanctions.

(1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order the party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.

(2) Willful violation by counsel or a party not represented by counsel of an applicable discovery rule, or an order issued pursuant thereto, shall subject counsel or the unrepresented party to appropriate sanctions by the court. The sanctions may include, but are not limited to, contempt proceedings against the attorney or unrepresented party, as well as the assessment of costs incurred by the opposing party, when appropriate.

(3) Every request for discovery or response or objection, including a notice of deposition made by a party represented by an attorney, shall be signed by at least 1 attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an

attorney shall sign the request, response, or objection and list his or her address. The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection and that to the best of the signer's knowledge, information, or belief formed after a reasonable inquiry it is:

(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;

(B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and

(C) not unreasonable or unduly burdensome or expensive, given the needs of the case and the importance of the issues at stake in the litigation.

If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.

If a certification is made in violation of this rule, the court, on motion or on its own initiative, shall impose on the person who made the certification, the firm or agency with which the person is affiliated, the party on whose behalf the request, response, or objection is made, or any or all of the above an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.

(o) Costs of Indigents. --After a defendant is adjudged insolvent, the reasonable costs incurred in the operation of these rules shall be taxed as costs against the state.

(p) Pretrial Conference.

(1) The trial court may hold 1 or more pretrial conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. The defendant shall be present unless the defendant waives this in writing.

(2) The court may set, and upon the request of any party shall set, a discovery schedule, including a discovery cut-off date, at the pretrial conference.

APPENDIX G

ARIZONA RULES OF COURT ANNOTATED Copyright (c) 2006 by the Michie Company - A Division of Reed Elsevier Inc.

and Reed Properties Inc. All rights reserved

* THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH OCTOBER 31, 2006 * * ANNOTATIONS CURRENT THROUGH OCTOBER 13, 2006 *

RULES OF CRIMINAL PROCEDURE

IV. PRETRIAL PROCEDURES RULE 15. DISCLOSURE

Ariz. R. Crim. P. 15.1 (2006) Review Court Orders which may amend this Rule. Rule 15.1. Disclosure by state. a. Initial disclosure in felony cases. Unless otherwise ordered by the court or provided by local rule, at the arraignment, or at the preliminary hearing, whichever occurs first, the prosecutor shall make available to the defendant all re-ports containing items listed in Rule 15.1(b)(3) and (4) that were in the possession of the attorney filing the charge at the time of the filing. b. Supplemental disclosure; scope. Except as provided by Rule 39(b), the prosecutor shall make available to the defendant the following material and information within the prosecutor's possession or control: (1) The names and addresses of all persons whom the prosecutor intends to call as witnesses in the case-in-chief together with their relevant written or recorded statements, (2) All statements of the defendant and of any person who will be tried with the defendant, (3) All then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged, (4) The names and addresses of experts who have personally examined a defendant or any evidence in the particular case, together with the results of physical examinations of scientific tests, experiments or comparisons that have been completed, (5) A list of all papers, documents, photographs or tangible objects that the prosecutor intends to use at trial or which were obtained from or purportedly belong to the defendant, (6) A list of all prior felony convictions of the defendant which the prosecutor intends to use at trial, (7) A list of all prior acts of the defendant which the prosecutor intends to use to prove motive, intent, or knowledge or otherwise use at trial, (8) All then existing material or information which tends to mitigate or negate the defendant's guilt as to the offense charged, or which would tend to reduce the defendant's punishment therefore,

(9) Whether there has been any electronic surveillance of any conversations to which the defendant was a party, or of the defendant's business or residence, (10) Whether a search warrant has been executed in connection with the case, (11) Whether the case has involved an informant, and, if so, the informant's identity, if the defendant is entitled to know either or both of these facts under Rule 15.4(b)(2). c. Time for disclosure. Unless otherwise ordered by the court, the prosecutor shall disclose the materials and information listed in Rule 15.1(b) not later than: (1) For cases in superior court, 30 days after arraignment. (2) For limited jurisdiction courts, at the first pre-trial conference. d. Prior felony convictions. (1) In a felony case, at least thirty days prior to trial, or thirty days after a request from the defendant, whichever occurs first, the state shall make available to the defendant a list of the prior felony convictions of witnesses whom the prosecutor intends to call at trial. (2) In a misdemeanor case, at least ten days prior to trial, the state shall make available to the defendant a list of the prior felony convictions of witnesses whom the prosecutor intends to call at trial. (3) In a felony case, at least thirty days prior to trial, or thirty days after a request from the defendant, whichever occurs first, the state shall make available to the defendant a list of the prior felony convictions that the prosecutor in-tends to use to impeach a disclosed defense witness at trial. (4) In a misdemeanor case, at least ten days prior to trial the state shall make available to the defendant a list of the prior felony convictions that the prosecutor intends to use to impeach a disclosed defense witness at trial. e. Additional disclosure upon request and specification. Unless otherwise ordered by the court, the prosecutor shall, within thirty days of a written request, make available to the defendant for examination, testing and reproduction the following: (1) Any specified items contained in the list submitted under Rule 15.1(b)(5). (2) Any 911 calls existing at the time of the request that can reasonably be ascertained by the custodian of the re-cord to be related to the case. (3) Any completed written reports, statements and examination notes made by experts listed in subsections (b)(1) and (b)(4) of this rule in connection with the particular case. The prosecutor may impose reasonable conditions, including an appropriate stipulation concerning chain of custody, to protect physical evidence produced under this section or to allow time to complete any examination of such items. f. Disclosure by prosecutor. The prosecutor's obligation under this rule extends to material and information in the possession or control of any of the following: (1) The prosecutor, or members of the prosecutor's staff, or (2) Any law enforcement agency which has participated in the investigation of the case and that is under the prosecutor's direction or control, or (3) Any other person who has participated in the investigation or evaluation of the case and who is under the prosecutor's direction or control. g. Disclosure by order of the court. Upon motion of the defendant showing that the defendant has substantial need in the preparation of the defendant's case for material or information not otherwise covered by Rule 15.1, and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, the court in its discretion may order any person

to make it available to the defendant. The court may, upon the request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive. h. Disclosure of rebuttal evidence. Upon receipt of the notice of defenses required from the defendant under Rule 15.2(b) the state shall disclose the names and addresses of all persons whom the prosecutor intends to call as rebuttal witnesses together with their relevant written or recorded statements. i. Additional disclosure in a capital case. (1) The prosecutor, no later than 60 days after the arraignment in superior court, shall provide to the defendant notice of whether the prosecutor intends to seek the death penalty. This period may be extended for thirty days upon stipulation of counsel. Additional extensions may be granted upon motion of the state and approval of the court. (2) If the prosecutor files notice of intent to seek the death penalty, the prosecutor shall at the same time provide the defendant with a list of aggravating circumstances the state will rely on at the aggravation hearing in seeking the death penalty. (3) The prosecutor, no later than 30 days after filing a notice to seek the death penalty, shall provide to the defendant the following: (a) The names and addresses of all persons whom the prosecutor intends to call as witnesses to support each identified aggravating circumstance at the aggravation hearing together with any written or recorded statements of the wit-ness. (b) The names and addresses of experts whom the prosecutor intends to call to support each identified aggravating circumstance at the aggravation hearing together with any written or recorded statements of the expert. (c) A list of any and all papers, documents, photographs or tangible objects that the prosecutor intends to use to support each identified aggravating circumstance at the aggravation hearing. (d) All material or information that might mitigate or negate the finding of an aggravating circumstance or mitigate the defendant's culpability. (4) The trial court may enlarge the time or allow the notice required in Rule 15.1(i)(3) to be amended only upon a showing of good cause by the prosecution, or upon stipulation of counsel and approval of the court. (5) Within 60 days of receipt of the disclosure required under Rule 15.2(h)(1), the prosecutor shall disclose to the defendant the following: (a) The names and addresses of all persons whom the prosecutor intends to call as rebuttal witnesses on each identified aggravating circumstance together with any written or recorded statements of the witness. (b) The names and addresses of all persons the state intends to call as witnesses at the penalty hearing together with any written or recorded statements of the witness. (c) The names and addresses of experts who may be called at the penalty hearing together with any reports prepared by the expert. (d) A list of any and all papers, documents, photographs or tangible objects that the prosecutor intends to use during the aggravation and penalty hearings. j. Reproduction or release for inspection of items prohibited by Title 13, Chapter 35.1. Except as provided below, nothing in this rule shall be construed to require the prosecutor to reproduce or release for testing or examination any items listed in Rule 15.1(b) (5) if the production or possession of the items is otherwise prohibited by Title 13, Chapter 35.1. The prosecutor shall make such items reasonably available for inspection with such conditions as are necessary to protect the rights of victims. Upon a substantial showing by a defendant that reproduction or

release for examination or testing of any particular item is required for the effective investigation or presentation of a defense, such as for expert analysis, the court may require reproduction or release for examination or testing of that item, subject to such terms and conditions as are necessary to protect the rights of victims, to document the chain of custody, and to protect physical evidence. Reproduction of or release for examination and testing of such items shall be subject, in addition to such other terms and conditions as are ordered by the court in any particular case, to the following restrictions: (1) the item shall not be further reproduced or distributed except as allowed in the court's order; (2) the item shall only be viewed or pos-sessed by the persons listed in the court's order; (3) the item shall not be possessed by or viewed by the defendant out-side the direct supervision of defense counsel, advisory counsel, or defense expert; (4) the item must first be delivered to defense counsel or advisory counsel, or if expressly permitted by order of the court, to a specified defense expert; (5) defense counsel or advisory counsel shall be accountable to the court for any violation of the court order or this Rule; and (6) the item shall be returned to the prosecutor by a deadline ordered by the court.

Ariz. R. Crim. P. 15.2 (2006) Review Court Orders which may amend this Rule. Rule 15.2. Disclosure by defendant. a. Physical evidence. At any time after the filing of an indictment, information or complaint, upon written request of the prosecutor, the defendant shall, in connection with the particular crime with which the defendant is charged:

(1) Appear in a line-up,

(2) Speak for identification by witnesses,

(3) Be fingerprinted, palm-printed, footprinted or voiceprinted,

(4) Pose for photographs not involving reenactment of an event,

(5) Try on clothing,

(6) Permit the taking of samples of his or her hair, blood, saliva, urine or other specified materials that involves no unreasonable intrusions of his or her body,

(7) Provide specimens of his or her handwriting,

(8) Submit to a reasonable physical or medical inspection of his or her body, provided such inspection does not include psychiatric or psychological examination.

The defendant shall be entitled to the presence of counsel at the taking of such evidence. This rule shall supplement and not limit any other procedures established by law.

b. Notice of defenses. Within the time specified in Rule 15.2(d), the defendant shall provide a written notice to the prosecutor specifying all defenses as to which the defendant intends to introduce evidence at trial, including, but not limited to, alibi, insanity, self-defense, defense of others, entrapment, impotency, marriage, insufficiency of a prior conviction, mistaken identity, and good character. The notice shall specify for each listed defense the persons, including the

defendant, whom the defendant intends to call as witnesses at trial in support of each listed defense. It may be signed by either the defendant or defendant's counsel, and shall be filed with the court.

c. Disclosure by defendant. Simultaneously with the notice of defenses submitted under Rule 15.2(b), the defendant shall make available to the prosecutor for examination and reproduction the following material and information known to the defendant to be in the possession or control of the defendant:

(1) The names and addresses of all persons, other than that of the defendant, whom the defendant intends to call as witnesses at trial, together with their relevant written or recorded statements;

(2) The names and addresses of experts whom the defendant intends to call at trial, together with the results of the defendant's physical examinations and of scientific tests, experiments or comparisons that have been completed; and

(3) A list of all papers, documents, photographs and other tangible objects that the defendant intends to use at trial.

d. Time for disclosure. Unless otherwise ordered by the court, the defendant shall disclose the materials and information listed in Rules 15.2(b) and 15.2(c) not later than:

(1) For cases in Superior Court, 40 days after arraignment or within 10 days after the prosecutor's disclosure pursuant to Rule 15.1(b), whichever occurs first.

(2) For cases in limited jurisdiction courts, 20 days after the prosecutor's disclosure pursuant to Rule 15.1(b).

e. Additional disclosure upon request and specification. Unless otherwise ordered by the court, the defendant, within thirty days of a written request, shall make available to the prosecutor for examination, testing, and reproduction the following:

(1) Any specified items contained in the list submitted under Rule 15.2(c)(3).

(2) Any completed written reports, statements and examination notes made by experts listed in Rule 15.2(c)(1) and (2) of this rule in connection with the particular case.

The defendant may impose reasonable conditions, including an appropriate stipulation concerning chain of custody, to protect the physical evidence produced under this section or to allow time to complete any examination or testing of such items.

f. Scope of disclosure. The defendant's obligation under this rule extends to material and information within the possession or control of the defendant, the defendant's attorneys, staff, agents, investigators or any other persons who have participated in the investigation or evaluation of the case and who are under the defendant's direction or control.

g. Disclosure by order of the court. Upon motion of the prosecutor showing that the prosecutor has substantial need in the preparation of his or her case for material or information not otherwise covered by Rule 15.2, that the prosecutor is unable without undue hardship to obtain the substantial equivalent by other means, and that disclosure there of will not violate the defendant's constitutional rights, the court in its discretion may order any person to make such material or information available to the prosecutor. The court may, upon any request of any

person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive.

h. Additional disclosure in a capital case.

(1) Within 180 days after receiving the state's disclosure pursuant to Rule 15.1(i)(2), the defendant shall provide to the prosecutor:

(a) A list of all mitigating circumstances intended to be proved.

(b) The names and addresses of all persons, other than the defendant, whom the defendant intends to call as witnesses during the aggravation or penalty hearings, together with all written or recorded statements of the witnesses.

(c) The names and addresses of any experts whom the defendant intends to call during the aggravation and penalty hearings together with any reports prepared, excluding the defendant's statements.

(d) A list of any and all papers, documents, photographs or tangible objects that the defendant intends to use during the aggravation and penalty hearings.

(2) The trial court may enlarge the time or allow the notice required in Rule 15.2(h)(1) to be amended only upon a showing of good cause by the defendant or upon stipulation of counsel and approval of the court.

(3) Within 60 days of receiving the state's supplemental disclosure pursuant to Rule 15.1(i)(3), the defense shall disclose the names and addresses of any rebuttal witnesses, together with their written or recorded statements, and the names and addresses of any experts who may be called at the penalty hearing, together with any reports prepared by the experts.

Ariz. R. Crim. P. 15.3 (2006) Review Court Orders which may amend this Rule. Rule 15.3. Depositions. a. Availability. Upon motion of any party or a witness, the court may in its discretion order the examination of any person except the defendant and those excluded by Rule 39(b) upon oral deposition under the following circumstances:

(1) A party shows that the person's testimony is material to the case and that there is a substantial likelihood that the person will not be available at the time of trial, or

(2) A party shows that the person's testimony is material to the case or necessary adequately to prepare a defense or investigate the offense, that the person was not a witness at the preliminary hearing or at the probable cause phase of the juvenile transfer hearing, and that the person will not cooperate in granting a personal interview, or

(3) A witness is incarcerated for failure to give satisfactory security that the witness will appear to testify at a trial or hearing.

b. Subsequent examination. In the event that testimony at a preliminary hearing or probable cause phase of a juvenile transfer hearing is limited by the magistrate pursuant to Rule 5.3, the court may order a follow up examination of any witness who testified at the hearing if the witness will not cooperate in granting a personal interview.

c. Motion for taking deposition; notice; service. A motion for deposition shall specify the time and place for taking the deposition and the name and address of each person to be examined, together with designated papers, documents, photographs or other tangible objects, not privileged, to be produced at the same time and place. The court may change such terms and specify any additional conditions governing the conduct of the proceeding. The moving party shall notice the deposition in the manner provided for in civil actions and serve a subpoena upon the deponent, specifying the terms and conditions set forth in the court's order granting the deposition, and give notice of the deposition in writing to every other party to the action.

d. Manner of taking. Except as otherwise provided herein or by order of the court, depositions shall be taken in the manner provided in civil actions. With the consent of the parties, the court may order that a deposition be taken on written interrogatories in the manner provided in civil actions. Any statement of the witness being deposed which is in the possession of any party shall be made available for examination and use at the taking of the deposition to any party who would be entitled thereto at trial. A deposition may be recorded by other than a certified court reporter. If a deposition is recorded by other than a certified court reporter, the party taking the deposition shall provide the opposing party with a copy of the recording within 14 days after the taking of the deposition or not less than 10 days before trial, whichever is earlier. The parties may stipulate, or the court may order, that a deposition be taken by telephone, consistent with the provision of Rule 15.3(d).

e. Presence of defendant. A defendant shall have the right to be present at any examination under Rule 15.3(a)(1) and (a)(3). If a defendant is in custody, the officer having custody shall be notified by the moving party of the time and place set for the examination and shall, unless the defendant waives, in writing, the right to be present, produce the defendant at the examination and remain with him or her during it.

f. Use. Depositions may be used in the manner provided for prior recorded testimony in Rule 19.3(c).

APPENDIX H

MASSACHUSETTS COURT RULES

*** THIS DOCUMENT REFLECTS ALL CHANGES RECEIVED AS OF OCTOBER 15, 2006 ***

MASSACHUSETTS RULES OF CRIMINAL PROCEDURE

ALM R. Crim. P. Rule 14 (2006)

Review Court Orders which may amend this rule. Rule 14. Pretrial Discovery (a) Procedures for Discovery.

(1) Automatic Discovery.

(A) Mandatory Discovery for the Defendant. The prosecution shall disclose to the defense, and permit the defense to discover, inspect and copy, each of the following items and information at or prior to the pretrial conference, provided it is relevant to the case and is in the possession, custody or control of the prosecutor, persons under the prosecutor's direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor's office or have done so in the case:

(i) Any written or recorded statements, and the substance of any oral statements, made by the defendant or a co-defendant.

(ii) The grand jury minutes, and the written or recorded statements of a person who has testified before a grand jury.

(iii) Any facts of an exculpatory nature.

(iv) The names, addresses, and dates of birth of the Commonwealth's prospective witnesses other than law enforcement witnesses. The Commonwealth shall also provide this information to the Probation Department.

(v) The names and business addresses of prospective law enforcement witnesses.

(vi) Intended expert opinion evidence, other than evidence that pertains to the defendant's criminal responsibility and is subject to subdivision (b)(2). Such discovery shall include the identity, current curriculum vitae, and list of publications of each intended expert witness, and all reports prepared by the expert that pertain to the case.

(vii) Material and relevant police reports, photographs, tangible objects, all intended exhibits, reports of physical examinations of any person or of scientific tests or experiments, and statements of persons the party intends to call as witnesses.

(viii) A summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.

(ix) Disclosure of all promises, rewards or inducements made to witnesses the party intends to present at trial.

(B) Reciprocal Discovery for the Prosecution. Following the Commonwealth's delivery of all discovery required pursuant to subdivision (a)(1)(A) or court order, and on or before a date agreed to between the parties, or in the absence of such agreement a date ordered by the court, the defendant shall disclose to the prosecution and permit the Commonwealth to discover, inspect, and copy any material and relevant evidence discoverable under subdivision (a)(1)(A)(vi), (vii) and (ix) which the defendant intends to offer at trial, including the names, addresses, dates of birth, and statements of those persons whom the defendant intends to call as witnesses at trial.

(C) Stay of Automatic Discovery; Sanctions. Subdivisions (a)(1)(A) and (a)(1)(B) shall have the force and effect of a court order, and failure to provide discovery pursuant to them may result in application of any sanctions permitted for non-compliance with a court order under subdivision 14(c). However, if in the judgment of either party good cause exists for declining to make any of the disclosures set forth above, it may move for a protective order pursuant to subdivision (a)(6) and production of the item shall be stayed pending a ruling by the court.

(D) Record of Convictions of the Defendant, Codefendants, and Prosecution Witnesses. At arraignment the court shall order the Probation Department to deliver to the parties the record of prior complaints, indictments and dispositions of all defendants and of all witnesses identified pursuant to subdivisions (a)(1)(A)(iv) within 5 days of the Commonwealth's notification to the Department of the names and addresses of its witnesses.

(E) Notice and Preservation of Evidence. (i) Upon receipt of information that any item described in subparagraph (a)(1)(A)(i)-(viii) exists, except that it is not within the possession, custody or control of the prosecution, persons under its direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor's office or have done so in the case, the prosecution shall notify the defendant of the existence of the item and all information known to the prosecutor concerning the item's location and the identity of any persons possessing it. (ii) At any time, a party may move for an order to any individual, agency or other entity in possession, custody or control of items pertaining to the case, requiring that such items be preserved for a specified period of time. The court shall hear and rule upon the motion expeditiously. The court may modify or vacate such an order upon a showing that preservation of particular evidence will create significant hardship, on condition that the probative value of said evidence is preserved by a specified alternative means.

(2) Motions for Discovery. The defendant may move, and following its filing of the Certificate of Compliance the Commonwealth may move, for discovery of other material and relevant evidence not required by subdivision (a)(1) within the time allowed by Rule 13(d)(1).

(3) Certificate of Compliance. When a party has provided all discovery required by this rule or by court order, it shall file with the court a Certificate of Compliance. The certificate shall state that, to the best of its knowledge and after reasonable inquiry, the party has disclosed and made available all items subject to discovery other than reports of experts, and shall identify each item provided. If further discovery is subsequently provided, a supplemental certificate shall be filed with the court identifying the additional items provided.

(4) Continuing Duty. If either the defense or the prosecution subsequently learns of additional material which it would have been under a duty to disclose or produce pursuant to any provisions of this rule at the time of a previous discovery order, it shall promptly notify the other party of its acquisition of such additional material and shall disclose the material in the same manner as required for initial discovery under this rule.

(5) Work Product. This rule does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions of the adverse party or its attorney and legal staff, or of statements of a defendant, signed or unsigned, made to the attorney for the defendant or the attorney's legal staff.

(6) Protective Orders. Upon a sufficient showing, the judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. The judge may alter the time requirements of this rule. The judge may, for cause shown, grant discovery to a defendant on the condition that the material to be discovered be available only to counsel for the defendant. This provision does not alter the allocation of the burden of proof with regard to the matter at issue, including privilege.

(7) Amendment of Discovery Orders. Upon motion of either party made subsequent to an order of the judge pursuant to this rule, the judge may alter or amend the previous order or orders as the interests of justice may require. The judge may, for cause shown, affirm a prior order granting discovery to a defendant upon the additional condition that the material to be discovered is to be available only to counsel for the defendant.

(8) A party may waive the right to discovery of an item, or to discovery of the item within the time provided in this Rule. The parties may agree to reduce or enlarge the items subject to discovery pursuant to subsections (a)(1)(A) and (a)(1)(B). Any such waiver or agreement shall be in writing and signed by the waiving party or the parties to the agreement, shall identify the specific items included, and shall be served upon all the parties.

(b) Special Procedures.

(1) Notice of Alibi.

(A) Notice by Defendant. The judge may, upon written motion of the Commonwealth filed pursuant to subdivision (a)(2) of this rule, stating the time, date, and place at which the alleged offense was committed, order that the defendant serve upon the prosecutor a written notice, signed by the defendant, of his or her intention to offer a defense of alibi. The notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defense intends to rely to establish the alibi.

(B) Disclosure of Information and Witness. Within seven days of service of the defendant's notice of alibi, the Commonwealth shall serve upon the defendant a written notice stating the names and addresses of witnesses upon whom the prosecutor intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.

(C) Continuing Duty to Disclose. If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information furnished under

subdivision (b)(1)(A) or (B), that party shall promptly notify the adverse party or its attorney of the existence and identity of the additional witness.

(D) Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the judge may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at the scene of the alleged offense. This rule shall not limit the right of the defendant to testify.

(E) Exceptions. For cause shown, the judge may grant an exception to any of the requirements of subdivisions (b)(1)(A) through (D) of this rule.

(F) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with that intention, is not admissible in any civil or criminal proceeding against the person who gave notice of that intention.

(2) Defense of Lack of Criminal Responsibility Because of Mental Disease or Defect.

(A) Notice. If a defendant intends to rely upon the defense of lack of criminal responsibility because of mental disease or defect at the time of the alleged crime, the defendant shall, within the time provided for the filing of pretrial motions by Rule 13(d)(2) or at such later time as the judge may allow, notify the prosecutor in writing of such intention. The notice shall state:

(i) whether the defendant intends to offer testimony of expert witnesses on the issue of lack of criminal responsibility because of mental disease or defect;

(ii) the names and addresses of expert witnesses whom the defendant expects to call; and

(iii) whether those expert witnesses intend to rely in whole or in part on statements of the defendant as to his or her mental condition at the time of the alleged crime or criminal responsibility for the alleged crime.

The defendant shall file a copy of the notice with the clerk. The judge may for cause shown allow late filing of the notice, grant additional time to the parties to prepare for trial, or make such other order as may be appropriate.

(B) Examination. If the notice of the defendant or subsequent inquiry by the judge or developments in the case indicate that statements of the defendant as to his or her mental condition at the time of, or criminal responsibility for, the alleged crime will be relied upon by expert witnesses of the defendant, the court, upon its own motion or upon motion of the prosecutor, may order the defendant to submit to a psychiatric examination consistent with the provisions of the General Laws and subject to the following terms and conditions:

(i) The examination shall include such physical and psychological examinations and physiological and psychiatric tests as the examiner deems necessary to form an opinion as to the mental condition of the defendant at the time the alleged offense was committed. No examination based on statements of the defendant may be conducted unless the judge has found that (a) the defendant then intends to offer at trial psychiatric evidence based on his or her own statements or (b) there is a reasonable likelihood that the defendant will offer that evidence.

(ii) No statement, confession, or admission, or other evidence of or obtained from the defendant during the course of the examination, except evidence derived solely from physical or

physiological observations or tests, may be revealed to the prosecution or anyone acting on its behalf unless so ordered by the judge.

(iii) The examiner shall file with the court a written psychiatric report which shall contain his or her findings, including specific statements of the basis thereof, as to the mental condition of the defendant at the time the alleged offense was committed.

The report shall be sealed and shall not be made available to the parties unless (a) the judge determines that the report contains no matter, information, or evidence which is based upon statements of the defendant as to his or her mental condition at the time of, or criminal responsibility for, the alleged crime, or which is otherwise within the scope of the privilege against self-incrimination; or (b) the defendant files a motion requesting that the report be made available to the parties; or (c) during trial the defendant raises the defense of lack of criminal responsibility and the judge is satisfied that (1) the defendant intends to testify or (2) the defendant intends to offer expert testimony based in whole or in part upon statements of the defendant as to his or her mental condition at the time of, or criminal responsibility for, the alleged crime.

If a psychiatric report contains both privileged and nonprivileged matter, the court may, if feasible, at such time as it deems appropriate, make available to the parties the nonprivileged portions.

(iv) If a defendant refuses to submit to an examination ordered pursuant to and subject to the terms and conditions of this rule, the court may prescribe such remedies as it deems warranted by the circumstances, which may include exclusion of the testimony of any expert witness offered by the defense on the issue of the defendant's mental condition or the admission of evidence of the refusal of the defendant to submit to examination.

(3) Notice of Other Defenses. If a defendant intends to rely upon a defense based upon a license, claim of authority or ownership, or exemption, the defendant shall, within the time provided for the filing of pretrial motions by Rule 13(d)(2) or at such later time as the judge may direct, notify the prosecutor in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, a license, claim of authority or ownership, or exemption may not be relied upon as a defense. The judge may for cause shown allow a late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(c) Sanctions for Noncompliance.

(1) Relief for Nondisclosure. For failure to comply with any discovery order issued or imposed pursuant to this rule, the court may make a further order for discovery, grant a continuance, or enter such other order as it deems just under the circumstances.

(2) Exclusion of Evidence. The court may in its discretion exclude evidence for noncompliance with a discovery order issued or imposed pursuant to this rule. Testimony of the defendant and evidence concerning the defense of lack of criminal responsibility which is otherwise admissible cannot be excluded except as provided by subdivision (b)(2) of this rule.

(d) Definition. The term "statement", as used in this rule, means:

(1) a writing made by a person having percipient knowledge of relevant facts and which contains such facts, other than drafts or notes that have been incorporated into a subsequent draft or final report; or

(2) a written, stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral declaration and which is recorded contemporaneously with the making of the oral declaration.