This example Criminal Law memorandum was written by Alyssa Congdon while attending Albany Law School.
To: Professor Alpern
From: Alyssa Congdon, J.D. Candidate, Class of 2012Re:
I. Discovery, In General
Discovery is an important element of any case that falls onto an attorney’s desk, regardless of what type of case it may be. Within a criminal trial, Criminal Procedure Law § 240 governs discovery. Discovery for material not previously disclosed to a defendant by the prosecutor is conducted through motions given before and during trial.
Under § 240.80, a demand to produce will be made within thirty days after arraignment and before commencement of trial. The time begins to accrue on the day that the defendant has counsel, if the defendant did not have counsel at the arraignment. Any refusal to comply motion from the prosecutor must be made within fifteen days of service of the demand, and if there is no refusal then compliance with the demand should start within fifteen days after service or as soon as possible if the information requested is not immediately accessible. The prosecutor must make a due diligence good faith effort to make property available to the defendant if requested and if it is not within the prosecutor’s possession. (§240.20(2)). Now, a prosecutor may refuse to disclose information if they think it is not able to be produced, or they may apply for a protective order if they believe it is needed during the refusal. This refusal for any reason must be in writing and set forth all the grounds of the beliefs. (§ 240.35).
Following § 240.50, protective orders may be issued denying, limiting, conditioning, delaying or regulating discovery for good cause, which could mean embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, such as the protection of the confidentiality of informants. Any other fact which outweighs the usefulness of the discovery could be used to justify the good cause. If the court deems proper, they could also order that a protective order is granted, but that the information may be discoverable so long as it is required that any material that is given be maintained in the exclusive possession of the attorney and only be used for preparing a defense.
The court must order discovery if they find that the prosecutor’s refusal is unjustified, if the prosecutor did not file his or her refusal in a timely fashion, or the court may order discovery of other items that the people intent to introduce at trial if the defendant can show that it is material to his preparation of his defense. (§ 240.40(1)) Further, if a party finds out more material that is subject to discovery then the attorney must promptly comply with the demand, the court order, refuse to comply if authorized, or apply for a protective order immediately.
(§ 240.60). If during discovery or at any time the court finds that a party has not complied with the discovery that was required under § 240, then the court may take any appropriate action, including ordering discovery, issuing protective orders, or prohibiting the evidence. (§240.70(1)).
II. Confidential Information Can Be Disclosed Under Certain Circumstances, But Their Worth Must Outweigh Their Prejudice.
Following People v. Castillo, 80 NY2d 578, a defendant’s opportunity to have access to confidential information (in Castillo it was to confront the confidential informant in a hearing) must yield to the need for confidentiality if could compromise a particular confidential informant or future investigations by the police in the interest of justice. (See also CPL § 240.50). If the defendant wants this information to be disclosed, they must show that a compelling reason exists that would outweigh the benefits of the confidentiality. (Wunsch v. Rochester 108 Misc. 2d 854).
a. Information Regarding A Confidential Informant
In the case of a drug sale to a confidential informant (CI), information regarding the CI could prove helpful to a defendant. However, there are two issues regarding CI requests: one is the identity of the CI, and the second is their background, including their criminal record and how they became a CI. In order to release CI information, the court must follow the four step process found in People v. Seychel, 136 Misc. 2d 310. First, the court reviews the warrant for probable cause or to determine whether it was perjurious on its face. To do so the court can conduct in camera hearing. Next, the court should conduct an in camera inquiry of the CI to see if his or her life, or future investigations, could be jeopardized by the reveal. If the court can without hurting the affidavit, then it should attempt to redact the CI information from it. If it cannot be redacted, then a Darden inquiry (from People v. Darden, 34 NY2d 177) must be done to determine credibility of the CI.
If the CI survives this process, then his/her name should be released and the CI should be treated as any other witness. Following § 240.44(2), at the conclusion of the direct of the witness at a pre-trial hearing the prosecutor should make available record of a judgment of conviction of witnesses other than the defendant, which, if the information has passed through the four step process of Seychel, would include the criminal record of the CI.
b. Information Regarding Police Officers’ Personnel Files
When there is a question of a police officer’s possible history of misconduct, personnel files may be requested in a discovery demand or request. Information contained within a police officer’s personnel file is very highly confidential. In People v. Oglesby, 177 Misc. 2d 580, the court decided that important information which affects credibility may be discoverable. For example, impeachment material for inconsistent statements or motive to testify or lie would be discoverable, but evidence that only impeaches “general credibility” is not material and therefore not discoverable. People v. Vilardi, 76 NY2d 67, further explained what is material: evidence specifically requested by defendant is material if can affect trial outcome, but a general request only requires disclosure if evidence is material and “create[s] reasonable doubt that did not otherwise exist”. Any statement of witnesses regarding the subject matter of the witness’s testimony for that particular case is typically deemed material and relevant. (People v. Rosario, 9 NY2d 286).
During a request, a defense attorney should be very specific for any of these purposes for which they intend to use the information. If the personnel file is requested to show police misconduct, the defendant must allege specific allegations of police officers misconduct and court must do in camera review of personnel file to see if the allegations exist and if they are relevant. In the defendant’s motion they must show how they believe it to be relevant and also how they have such knowledge. (People v. Rosario, supra). This also balances with Civil Rights Law § 50-a, as well as the discretion given to the court in People v. Gissendanner (48 NY2d 543).
Civil Rights Law § 50-a states that personnel files used to evaluate performance are not open to inspection or review without consent or a court order, and that there can be no court order without review and an opportunity to be heard from parties. The review to determine whether or not there is sufficient basis should be conducted in camera. Only after meeting these burdens could the file be disclosed.
III. In the Case of KT, the Prosecutor Has Not Fulfilled Their Pre-Trial Discovery Obligations.
In People v. KT, the prosecutor gave KT’s attorney the following as the discoverable materials in full:
· Indictments for two counts of murder in the second degree;
· Indictment for one count of attempted robbery in the first degree;
· The statement made to police by KT;
· The supplemental report prepared by the Albany Police Department;
· A fax cover letter and certification by the New York State Police Crime Lab;
· DNA results and conclusions from the same; and
· A CPL § 710.30 notice of observation and identification of the defendant, KT.
These documents alone do not fulfill the prosecutor’s obligation.
§ 240.20 states that all statements, transcripts, written documents concerning the physical or mental wellbeing, any photos or drawings made, photocopies of property taken, property from any defendant, tapes or electronic recordings made, information regarding the date, time and place of the incident must be disclosed to the defendant by the prosecutor, and that the prosecutor must exercise due diligence to retrieve and deliver if they do not possess the property in question. Additionally, if the prosecutor discovers more information that may be discoverable, they are imposed a duty to disclose this information under § 240.60. If the prosecutor fails to comply, a court order may be issued mandating such disclosure. § 240.70(1). Here, the prosecutor has failed to fully comply, specifically with regards to the DNA testing and the identification procedures.
a. DNA Testing
§ 240.20(1)(c) requires full disclosure of any document concerning a scientific test when sought by a defendant. The court in People v. DaGata, 86 NY2d 40, saw this as mandated regardless of whether or not the evidence was exculpatory, and in DaGata the court granted a right to discovery to labratory notes concerning DNA testing. Following the Criminal Procedure Law, the court ordered the prosecutor to request documents not in possession and turn over to the defendant. (See also People v. Alvaraz, 2007 NY Slip Op 1632, concerning DNA testing protocols or procedure manuals). Here, the only information given was a certification and the actual result records. No information in regards to how they were tested (DNA testing protocols or procedure manuals) nor any notations made were given. In this area, the prosecutor has failed to meet his or her burden.
b. Identification Procedures
Following § 240.44(1), any written or recorded statements related to the case by a witness must be disclosed at the pre-trial hearing after the direct examination closes of that witness. This includes any recordings or writings relating to the identification procedures used for KT, including any video in the police department made of the identification or any print off s of pictures that were used. Following case law such as People v. McFarlan, 191 Misc. 2d 531, if the prosecutor interns used a photo array as an identification procedure, then they must submit the print out along with all related information. A print out such as this is also mandated by the Electronic Signatures and Records Act (ESRA – state and technology law §§ 101-109). This is necessary since the prosecution must show no undue suggestiveness with respect to line up and that composition was satisfactory and constituted a fair grouping. (People v. Chipp 75 NY2d 327). Here, the prosecution cannot show that as they have not disclosed all necessary information, and therefore fail to meet their burden on this respect also.