{"id":4480,"date":"2023-11-13T13:43:41","date_gmt":"2023-11-13T13:43:41","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=4480"},"modified":"2023-11-13T13:43:41","modified_gmt":"2023-11-13T13:43:41","slug":"discovering-discovery-analyzing-the-arguments-for-automatic-discovery-of-police-disciplinary-records","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2023\/11\/13\/discovering-discovery-analyzing-the-arguments-for-automatic-discovery-of-police-disciplinary-records\/","title":{"rendered":"Discovering Discovery: Analyzing the arguments for automatic discovery of Police Disciplinary Records"},"content":{"rendered":"\n

“Slides Box Paperwork” by cdsessums is licensed under CC BY-SA 2.0. To view a copy of this license, visit https:\/\/creativecommons.org\/licenses\/by-sa\/2.0\/?ref=openverse.<\/em><\/p>\n

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Dedication<\/strong><\/p>\n

This article is dedicated to my friends at the Steuben County Public Defender\u2019s Office, who this summer were awarded the Jonathan E. Gradess Service of Justice Award<\/a> for their work in upholding New York State\u2019s discovery reform.<\/p>\n

<\/p>\n

Introduction<\/strong><\/p>\n

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

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

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

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

Before we get to that though, let\u2019s consider the stakes regarding making errors in discovery.<\/p>\n

<\/p>\n

The Importance of Discovery Compliance<\/strong><\/p>\n

Compliance with the discovery laws is not just a matter of playing nice with the defense. Failure to comply has real consequences for prosecutors. To explain why, we need to sidebar into how NY ensures a defendant\u2019s right to a speedy trial.<\/p>\n

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

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

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

<\/p>\n

The Controversy over police disciplinary records.<\/strong><\/p>\n

A particular flashpoint of this still-fresh reform is police disciplinary records. Defense attorneys see the records as part of section 245.20(k)(iv),<\/a> evidence which \u201cimpeach the credibility of a testifying prosecution witness\u201d. Prosecutors often disagree, with their arguments falling along consistent lines. I have personally heard the following:<\/p>\n