Several convictions have recently been overturned in New York. This has lead to a movement aimed at liberalizing New York’s strict discovery laws. The movement hopes to create what is commonly referred to as “open-file discovery.” As it stands today, the discovery law in New York is codified by section 240.20 of the Criminal Procedure Law. Section 240.20 states that there is certain evidence that must be disclosed with enough time prior to trial so that the evidence can be evaluated by the defense before beginning trial. Examples of evidence that is “discoverable” includes photographs, medical records, 911 calls or other related recordings, etc. In addition, there is a requirement that prosecutors in New York turn over all “Brady” information. Brady is basically information that tends to exculpate the defendant. What is noticeably absent from the list of things that are discoverable pursuant to CPL 240.20 are written or otherwise recorded statements made by a witness whom the prosecutor intends to call at trial. Those documents, which are referred to as “Rosario materials” must be turned over pursuant to CPL 240.45. Handwritten notes made by a police detective or prosecutor or the prior testimony of a witness are common forms of Rosario material. It is significant that Rosario material appears in CPL 240.45 rather than 240.20 because the deadline for turning over these materials is not far in advance of trial. Rather, the prosecutor must only turn over these material sjust prior to delivering the opening statement in a jury trial or prior to calling the prosecutor’s first witness in a bench trial. It is the common practice in most District Attorney’s Offices to turn over the material just prior to beginning the trial. District Attorney’s Offices that turn over these Rosario materials in advance practice what is called “open-file” discovery. Basically, the prosecutor gives the defense an opportunity to inspect the entire file at any point. So the movement that wants to make “open-file” discovery mandatory essentially wants the legislature to turn the Rosario rule which is codified in 240.45 and move it to 240.20. The argument is that if the defense had access to all the information the prosecution has, then the likelihood of there being a wrongful conviction would be greatly minimized if not eliminated entirely.
While I support open-file discovery, this argument is way too simplistic and is made by people within the media who have absolutely no idea what they are talking about. Before I get into why that is though, it helps to first try to summarize the arguments for and against “open-file” discovery.
As stated above, open-file discovery would give the defense access to information at an earlier stage in the litigation. Which would give the defense a meaningful opportunity to understand the evidence. And it would give the defendant an opportunity to make an informed decision regarding whether to plead guilty or go to trial.
Prosecutors, on the other hand, are reticent to turn over this material for two reasons. One reason is legitimate. The other is not. The legitimate reason to not want to turn over information regarding whom the witnesses will be at trial as well as the statements they’ve previously made to law-enforcement comes from a legitimate fear that witnesses may be intimidated, injured, or even killed if their identities are revealed to the defendant. Prosecutors argue that anyone who does not understand that this not only can happen, but it does happen in situations where the defendant is violent and has means to carry out his violence (i.e. because of gang or mafia membership) is simply not living in the real world. The illegitimate reason to not want to turn over these materials stems from an antiquated desire to practice trial-by-ambush. Simply put, some prosecutors don’t want the defense to have access to this evidence because they fear that if given enough time, a defense attorney can find ways to exploit the evidence. The illegitimacy of this reason stems from the fact that prosecutors shouldn’t be relying on trickery or an expectation that the defense will “miss” something. They should be relying on evidence. If the evidence can be “exploited” by the defense, then the prosecutor should reconsider whether they should bring the charges in the first place.