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Reciprocal Discovery

February 14, 2008

This week's issue is written for both sides. As we will see, reciprocal discovery, while it exists conceptually is nonetheless still in an embryonic state which reduces it to the state of a toothless gadfly; simultaneously irritating and yet without significant force.

Depending upon where you practice, this can be an issue. In alcohol influenced operating offenses, this is sure to emerge as an issue in the event that the defense seeks to call an expert witness. Unfortunately, the decision of whether to call or not to call is generally one which is not usually made until late in the case. In the normal situation, a determination to call an expert witness will not be made until after pre-trial hearings have been held, and the matter is calendared for trial. Should this be the route which the defendant seeks to go, he or she may be confronted with both an angry prosecutor and an objection.

The right of the prosecution to obtain discovery from the defendant in a criminal case is a phenomenon of fairly recent origin. Inasmuch as there was no right to discovery in a criminal case at common law, modern sanctions have been provided by statute or rule (See Wharton, 12 Criminal Procedure '390). Moreover, since there is no common‑law right to discovery, it must be limited to the perimeters of the statute (People v Beauchamp, 126 Misc2d 754, 483 NYS2d 946). As such, CPL '240.30 is a criminal statute and must be strictly construed in favor of the defendant (see, People v Schmitt, 118 Misc2d 374, 376, 460 NYS2d 477).


Many defense attorneys are erroneously of the belief that the constitutional right of the defendant to present a defense is so sacrosanct that it will intervene to remedy a variety of sins, even to the point where the defense has failed to disclose the existence of a witness. Whatever merit such may have had, the Supreme Court has made it abundantly clear that such will not intervene to salvage the defendant from non-compliance with a statutory discovery requirement. Reciprocal discovery statues are constitutional, even to the point of precluding defense evidence or witnesses in the event of non-compliance.

In Taylor v Illinois (1988, US ) 98 L Ed 2d 798 , 108 S Ct 646, a state trial for attempted murder, the United States Supreme Court held it was not error under the compulsory process clause of the Federal Constitution's Sixth Amendment for the court to order the preclusion of a defense witness's testimony as a sanction for defense counsel's violation of a discovery rule. In Taylor, it appeared that defense counsel had (1) interviewed the defense witness during the week before the trial began, (2) failed to identify the defense witness in the answer to the prosecution's discovery motion requesting a list of defense witnesses, (3) amended his answer to discovery on the first day of trial by adding the names of two other eyewitnesses who were never placed on the stand, (4) added the name of the defense witness only on the next day, after the prosecution's principal witnesses had completed their testimony, and (5) falsely represented to the court that the defense witness had seen the incident in question and that the accused had not been able to locate the defense witness thereafter. The Court observed that under such circumstances, the sanction of preclusion is not unnecessarily harsh because, regardless of whether the defense witness's voir dire examination adequately protected the prosecution from any possible prejudice resulting from surprise, there was a sufficiently strong inference of willful misconduct on the part of defense counsel to justify the severe sanction of preclusion. Secondly, the Court found that it was not unfair to hold the accused responsible for defense counsel's misconduct, because a lawyer has full authority to make tactical decisions in a trial, and thus the accused had no right to disavow defense counsel's decision to conceal the defense witness's identity until after the trial had commenced.


In Michigan v Lucas (1991, US ) 114 L Ed 2d 205, 111 S Ct 1743, a rape prosecution, the court found that preclusion of evidence of prior sexual relationship between alleged victim and accused did not necessarily violate rights of the accused under the Federal Constitution's Sixth Amendment, where such evidence is precluded as sanction for the accused's failure to comply with state statutory provision which requires the accused, if he proposes to offer evidence of his own past sexual conduct with alleged rape victim, to file written motion and offer proof within 10 days after his arraignment.

Despite the damning ramifications of both Taylor and Lucas, it must be born firmly in mind that each of these matters dealt with blatant non-compliance with a discovery statute. Keeping the cards a little too close to the vest if you will, neither found that as a principle of reverse due process or fundamental fairness that the defendant had an obligation to disclose in the absence of a statutory right.

In New York, reciprocal discovery is firmly controlled by statute. CPL '240.30 provides:

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.

Since confusion often exists as to what this statute also says, let's take a close look at each of the subdivisions.

First of all, bear in mind that as a component of CPL Article 240, the procedure incorporated by CPL '240.30 is a demand procedure. As such, it falls within the grasp of CPL '240.10, particularly the definitions set forth therein. Essential to the operation of the statute is an understanding that this is a demand procedure. It merely requires that a written demand be served upon the defendant (regular mail will suffice) and such demand, if made within 30 days (CPL '240.80), does not require permission or, for that matter, knowledge of the court. Further, as a pleading interposed in an action, the original demand should be forwarded to the court.


Irrespective of the nature of the material which is sought, timing can be key. Since it is the defendant who normally leads off in the paper chase that we commonly call discovery, the People should pay particular attention to this provision. If, as is common in most jurisdictions, the People interpose their demand with responses to the defendant's motion papers, such may be untimely. Perhaps as a function of the manner in which this section was engrafted upon CPL Article 240, there is no legislative indication whatsoever that the demand period is anything other than the 30 day period established in CPL Article 240. If the demand is served beyond the 30 day period, the demand is rendered untimely and an adversary is not required to respond. While better practice would seem to dictate that the safest course of action would be for the defendant's refusing party to serve a written refusal pursuant to '240.80(2), the structure of the statute is such that a party may simply choose to ignore the demand if he or she desires.

A motion procedure is also permitted. Discussed in some detail below, the trigger for the prosecutor's motion is that the property is not disclosed upon a demand pursuant to CPL '240.30 and that the court finds that the defendant's refusal to disclose such material is not justified.


The foregoing having been said, let's look at exactly what may be disclosed. CPL '240.30(1)(a) is severely limited as to what falls within the grasp of the prosecutor's right to discovery. Specifically specified, the statute is confined solely to 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. Limited to reports or documents, photographs, drawings tapes or other electronic recording, the statute is somewhat unusual in that not all documents, photographs, drawings tapes, other electronic recordings or reports, fall within its grasp. To qualify as material under CPL '240.30, it is not only necessary that such a report, photograph, drawing, tape, or other electronic recording or document exist, but that the defendant intends to introduce such at the time of trial. Thus, if the defendant is in receipt of such a report or document, but does not intend to introduce the same at the time of trial, there is absolutely no requirement that it be disclosed. This fact if further borne out by CPL '240.40 which sets forth that:

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.

Although, as alluded to above, the People will frequently argue that fundamental fairness or the need for a level playing field mandates that all reports be disclosed, there is simply no authority for this proposition inasmuch as discovery statutes exist in derogation of the common law (People v Beauchamp, 126 Misc2d 754, 483 NYS2d 946).

While the statute does speak in terms of non-testimonial evidence even on this front the scope is limited. CPL '240.40(I) - (vii) make provisions only for requiring 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.


Paramount, in considering reciprocal discovery is that CPL '240.30 contains absolutely no provision for requiring the defendant to disclose the retention or identity of an expert witness (cf, CPLR 4518). The statute provides solely for the production of reports 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. If no report has been prepared, the court has no power to order the preparation and discovery of such a report. Further, if no report has been prepared or if the defendant does not intend to introduce such report at trial, there is no statutory authorization for a court to direct the production of a report to the identity of an expert witness (see, Mulvaney v Dublin (1981, 2d Dept) 80 AD2d 566, 435 NYS2d 761, revd on other grounds 55 NY2d 668, 446 NYS2d 931, 431 NE2d 292).

Recall that up to this point we have been speaking of the demand procedure contemplated by CPL Article 240 as the discovery tool of choice. There is, of course, a motion procedure. In the usual course, it is predominately utilized when the defense believes that the People have failed to comply with a timely and lawfully interposed demand. Ironically, use of this procedure by the defense can have the effect of abandoning much of the statutory protection the defendant may otherwise have.

The defendant's motion to compel is created by CPL '240.40(1). Despite sweeping changes enacted in 1980 when the legislature rewrote Article 240, this provision, which had generated some impressive case law provides that the court must:

(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 * * *.

Little noticed is that this section contains a catch-all provision, subdivision (c). This subdivision, it seems, was written to cover the situation where the defendant seeks discovery material and has not initially served a demand which was ultimately refused. Specifically, it provides that the court:


. . . 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.

We have frequently noted that the must/may dichotomy as well as the need to demonstrate materiality mandate that the demand procedure be employed in the first instance. It seems that when speaking of reciprocal discovery, yet a third reason exists. Should the defense choose to proceed by motion, the court may grant a cross-motion for property of the same kind or character as that ordered to be disclosed to the defense. In essence this means that if the defendant has sought by motion, which motion is not predicated upon the People's initial refusal or failure to comply with a timely served demand, all documents within the custody or control of the People, it has just paved the way for the People to demand the same, provided the defendant intends to use the same at trial. In practice, this provision has demonstrated the propensity to cut a fairly broad swath. Although CPL Article 240 has since been rewritten, the rationale of the court in People v Copicotto, 1980, 50 NY2d 222, 428 NYS2d 649, is nonetheless persuasive. In Copicotto, the court found that the predecessor to CPL '240.40 which contained nearly identical language, authorized the production of a sales receipt by the defendant in a prosecution for petit larceny. Clearly, production of such a document could not be compelled under the more restrictive language of CPL '240.30. Although somewhat dated, People v Lacey (1975) 83 Misc2d 69, 368 NYS2d 655, is equally capable of making the point. In Lacey, the defendant sought discovery in the then existing predecessor to CPL '240.40. One of the items sought was production of the names and addresses of the People's witnesses. Finding such to be eminently fair, the court nonetheless granted the People's reciprocal request for like discovery.


In short, all this shows that discovery is nothing to be taken lightly. We have chastised use of the discoverable contents letter and this week we do so again. Discovery should be carefully thought out, not only with an eye toward what is sought, but what should not be sought as well.



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