Gone Fishin’: the Case For Full and Fair Disclosure:

Posted on October 30, 2023 in Uncategorized


By Delton Caraway

2020: a year unlike any other. The world watched as everything we knew, thought we knew, or felt comfort with got turned on its side. Those of us in the legal profession had to learn a new way of doing things amid court shutdowns, virtual appearances, and every other impediment imaginable to a functioning justice system. The landscape of the entire system was upended, seemingly overnight.

In New York, it was also the year the “discovery blindfold” came off! 2020 saw long overdue and sweeping changes in our Discovery laws (the mechanism by which criminal defendants are entitled to receive and refute the State’s evidence against them). Prior to this landmark legislation, a New York criminal defendant was not entitled to, and often went without, most of the evidence against them until the day of trial. And that was only IF the case even went to trial (a big “if,” considering most cases in the justice system result in a plea bargain prior to trial). Together with sweeping bail reforms (a topic for a whole different blog…), no longer were those accused of crimes forced to make the terrible choice between sacrificing their rights and freedom and challenging the proof against them in a meaningful way. Nowhere was this change more acutely felt than with indigent defendants, who previously could neither afford nor chance the prospect of harsher penalties should they decide to fight their charges.

Perhaps the most significant, and hotly contested, change to these new discovery laws was that CPL 245 (the new discovery statute) tied disclosure of evidence to the prosecutor’s “Speedy Trial” readiness requirements. Under the new laws, a prosecutor can no longer declare that they are “Ready for Trial” until they have provided the defense with all discoverable material, or have at least made all diligent efforts to obtain it. In the context of DWI’s, this meant that prosecutors now had a formal obligation to critically examine their cases and provide the evidence (or lack thereof) to support an officer’s opinion of impaired driving BEFORE an individual could be compelled to plead guilty to a crime that would drastically affect both their reputation and livelihood.

To be sure, this new landscape created an added burden on prosecutors and law enforcement – one that was not exactly welcomed by an already overburdened system. The “pushback” ranged from calls to “claw back” some of the more comprehensive requirements of CPL 245, to outright fear campaigns claiming that serious charges would be dismissed over “minor” or “inadvertent” disclosure failures. After all, why should dangerous drivers get a “pass” for impaired driving just because a few documents weren’t turned over? This question, while seemingly rational, misses the mark entirely – and completely discounts why comprehensive discovery reform has been so crucial to leveling the playing field for Public Defender clients defending alleged impaired driving cases.

Perhaps the most glaring misunderstanding about New York’s new discovery statute is that the laws themselves don’t actually significantly change what qualifies as “discoverable” material. Rather, these new laws primarily codify discovery obligations that already existed, and makes these disclosures automatic (prior to the new laws, if a defendant did not specifically ask for discovery, they were not entitled to it). More importantly, it requires disclosure in a set timeframe so that defendants can actually utilize it to defend themselves. By providing actual sanctions and remedies for a prosecutor’s failure to turn it over discovery, the laws discourage prosecutorial inaction and delayed disclosure of crucial information.

Prior to discovery reform, defendants would often be forced to decide whether to take a plea or go to trial having never seen the full extent of evidence against them. While many DA Offices had “open file policies,” it was entirely within the individual prosecutor’s discretion as to how much (or how little) to share with the defense. Not to mention, this nebulous form of “voluntary disclosure” was limited to whatever information was in the individual prosecutor’s physical file – and not what evidence may have been in the possession of law enforcement that the prosecutor was unaware of or simply never inquired about. Far from providing a “get out of jail free card” for honest disclosure mistakes, the law sought to right the pervasive absence of transparency and accountability when important information was not disclosed – whether intentionally or simply by a lack of due diligence. Indeed - in the nearly four years since New York’s discovery reform was enacted, countless previously undisclosed (and often unknown) pieces of evidence have emerged that proved absolutely crucial to a full and fair disposition of alleged impaired driving cases.

For instance: In what may be perhaps one of the first example of discovery reform at work – the DWI arrest of a local public figure on January 1, 2020 resulted in the uncovering of years of inadvertently destroyed video evidence in Ontario County (Upstate New York). The special prosecutor, in fulfilling his discovery obligations, requested to view a camera housed in the county jail where DWI breath tests were performed. It was previously thought that this area of the jail was not recorded or preserved, and that the camera existed for the purposes of real-time surveillance only. After investigating, it was determined that the camera had in fact been recording DWI arrests and breath testing for a number of years – and was routinely overwritten (destroyed) after a period of 45-60 days without ever being disclosed. More importantly, what was discovered when viewing this newly uncovered evidence is that in a number of cases, officers were not following proper breath testing procedure – calling into question the validity of the breath test results. Specifically, in the case mentioned above the special prosecutor assigned was forced to acknowledge the improper breath procedure followed by the arresting officer and reduce the charges to a non-criminal allegation. While it may never be known how many similar issues existed prior to 2020, had the prosecutor been required under the discovery laws in effect at the time to simply ascertain this information before announcing “trial readiness” – years of disclosure failures could have been avoided.

More recently in our County, it was discovered that police officers routinely communicate with each other using a “chat” feature on their patrol car’s mobile data terminals (MDT’s). Through this medium, officers would often discuss significant case details such as whether a suspect appears impaired or logistics, such as when to call (or not call) a DRE (“Drug recognition expert”) to help make a determination. This information, while apparently unknown to county prosecutors, was unquestionably evidence that should have been disclosed even prior to discovery reforms. Had there not been a newly affirmative duty placed on prosecutors to discover and disclose such information prior to trial, however – it is likely this data may never have come to light.

Other countless pieces of seemingly “irrelevant” data, once discovered and disclosed, have been crucial to disproving allegations of impairment over the past four years. This includes (but it certainly not limited to) body-worn-camera GPS data showing that an officer was not in the location his report alleged, “rolling logs” showing an officer’s “success/failure rate” in determining when someone was actually impaired, extensive blood toxicological data, and past disciplinary reports of police officers’ conduct when handling similar cases. While this evidence may have seemed unimportant at first glance - each of these items represents information that actually turned the tides of justice for someone falsely accused of impaired driving. And in each occasion, had this information not been disclosed, it would have drastically changed the outcome of their case.

None of this is to imply that prosecutors or law enforcement opposed to discovery reform are seeking to “hide” evidence. In fact, in nearly every instance above – the prosecutor was entirely unaware that this information even existed. But therein lies the problem: If prosecutors are not held accountable for failing to investigate their own cases in a timely manner – then how can anyone have faith that the evidence they are receiving is full, fair, and accurate? None of this information required a Herculean effort to discover. Each piece of missing evidence could have easily been obtained by simply asking whether or not it existed – something that prior to 2020 was rarely required and often not done.

Without question, the task of keeping dangerously impaired drivers off the road is an important and arduous one. And prosecuting these cases can certainly be difficult and time-intensive. But the “flip-side” of this equation is that clearly not every person accused of impaired driving is actually impaired. It is the reason our system requires a presumption of innocence, and the reason every person has the right to confront ALL of the evidence against them. For most of the marginalized populations represented by the Public Defender, the mere allegation of impaired driving can result in not only the loss of transportation – but the loss of ability to work, live, and put food on the table. As a practical matter, early access and review of important information can help both sides to determine whether a prosecution is actually warranted – resulting in far fewer prolonged legal battles. What is sometimes overlooked, however, is that for someone accused of a crime they did not commit - every single piece of evidence is “important.” So before deriding “overly broad” discovery laws – remember that guilt and innocence can (and often does) turn on the smallest piece of unnoticed or unappreciated information. Full and fair discovery laws may be “burdensome”, but it is the only way to ensure that our justice system works for all.

To learn more, please visit Discovery Reform In New York Revised 2022 6.2

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