School Essay: Discovery Process in the State of New York

Discovery Process in the State of New York

Leslie K. Penny

Module 5-Research Assignment 4

Chancellor University

Abstract Discovery Process in the State of New York

            The discovery process is an important part of a case because it provides the opportunity for both parties to discover what each sides view points of the case are (The Discovery Process, 2010).  This essay will concentrate on those particular steps involved in New York's discovery process which include depositions, interrogatories, requests for production, subpoenas, admissions and motions to compel disclosure and sanctions (A Jailhouse Lawyer's Manual, 2009) .  Items that are required to be turned over to the prosecutor will be discussed as well as where the discovery system or procedure is codified and what type of evidence that does not need to be turned over to the defense.  Open discovery will be explained as well as what penalties can occur if discovery is not done properly and timely. 

            In the discovery of documents, all documents must be disclosed to the other parties in the proceeding "that could be used by any party at trial to prove or disprove a material fact" (The Discovery Process, 2010).  Meaning that all documents must be described and be made available to the other party to observe.  The examination for discovery is when one party asks the opposing party a sequence of questions during a meeting where interrogatories are "a series or written questions provided to the other party to be answered in writing" which may only be used with the court's permission (The Discovery Process, 2010).  The pre-trial examination of witnesses is a process that can be used if a person has material evidence that relates to the case and not a party to the action in question and that, too, can only used with permission of the court (The Discovery Process, 2010).  Lastly, are notices to admit which allow one to ask the other party to disclose the truth of particular facts in question (The Discovery Process, 2010). 

            In the state of New York, the criminal discovery process is actually referred to as "disclosure" instead of "discovery" (A Jailhouse Lawyer's Manual, 2009) and is mainly "governed by Article 240 of New York's Criminal Procedure law" (Solimeo, 2007).  However, in many states, discovery is derived from statutes and court rules "but a defendant's right to discovery can be based on five different types of sources:1) statuses; 2) court rules; 3) judicial power; 4) the common law; and 5) the Constitution (Solimeo, 2007).  The New York Law School site goes on to say that the rules vary widely in the scope and timing of the states, "from the restrictive model of New York's Article 240 and Federal Rule of Criminal Procedure 16, to the broad rules of the ABA Standard model" (Solimeo, 2007). 

            Of course like with any state, civil litigation works differently than criminal cases.  When it comes to civil litigation, the rules of discovery allow each side almost free access to all relevant information that exist from each party (Solimeo, 2007).  Depositions, interrogatories, document production, inspections and physical and mental examinations are conducted in civil litigation's for disclosing information (The Discovery Process, 2010).  However, there is a huge difference when it comes to criminal discovery, mainly due to a defendants life being at stake, therefore the information being shared between both sides is greatly limited (The Discovery Process, 2010).

            Rules that apply to criminal discovery that govern many aspects of the criminal just system include: "1) the rules may involve providing notice, such as the requirement for the defense to give notice of any alibi or insanity defense it intends to offer at trial, or the government's duty to give notice of whether it plans to offer the defendant's confession; 2) discovery rules govern the parties' right of access to evidence, such as the right to inspect or copy certain physical material; 3) the rules specify the type of information that one party must provide to the other upon request, such as a copy of a defendant's criminal record; and 4) importantly, discovery rules govern the timing of when information must of disclosed, such as what information is available before the trial begins, and what is provided after the formal proceedings are underway" (Solimeo, 2007).

            As mentioned above, "parties are not required to meet or give out information voluntarily", they must request that information, which is completely different than federal discovery (A Jailhouse Lawyer's Manual, 2009).  One thing to point out is that both parties do not need to wait until after they meet before they can start making requests for information which is generally requested after a complaint has been filed, "but only after the defendant has responded or the time period for the defendant's response has expired, whichever comes sooner" (A Jailhouse Lawyer's Manual, 2009).

            Items that may be requested in the discovery process between the accused and the prosecutor are limited material such as "photographs, copy, or test certain types of 'property', like police reports or statements" (A Jailhouse Lawyer's Manual, 2009). Other discoverable material than may be requested includes any written, recorded, or oral statements the defendant made to the police or to individuals acting following police direction "other than in the course of the criminal transaction" (A Jailhouse Lawyer's Manual, 2009).  Other material includes similar statements that were made by co-defendants if they are being tried jointly with the defendant; conversations that are recorded; any statements made before the criminal transaction began; transcripts of any testimony the defendant or co-defendant made before a grand jury; scientific evidence such as written documents relating to physical or mental examinations; scientific tests or experiments which relate to the crime in question; psychological reports; ballistic reports; drug tests; semen tests; blood-typing tests (A Jailhouse Lawyer's Manual, 2009).

            Materials that are generally non-discoverable "under Article 240 are (1) attorney's work product, and (2) records of any statement made in the course of the criminal transaction, with the exception of any electronic recordings that the prosecutor intends to introduce at trial" (A Jailhouse Lawyer's Manual, 2009).  When speaking of an attorney's work product, it is explained in the statute as "property to the extent that it contains the opinions, theories, or conclusions of the prosecutor, defense counsel or members of their legal staffs" (A Jailhouse Lawyer's Manual, 2009).  Therefore, the prosecutor is not obligated to hand over memoranda or other documents that contain the prosecutors legal opinions or theories and vice versa for the defense if the prosecutor demands it (A Jailhouse Lawyer's Manual, 2009).

            It is the duty of the prosecution and the defendant to disclose information properly.  Both the defendant and the prosecutor must relinquish any important information or documents that have been requested one must not ignore the demands for discoverable material by the prosecution (A Jailhouse Lawyer's Manual, 2009).  If one does then they risk facing court sanctions handed down by the court (A Jailhouse Lawyer's Manual, 2009).  The prosecutor or defendant can refuse to requested information when one "has a reasonable belief that the requested material is not discoverable (irrelevant, privileged, or subject to a protective order) (A Jailhouse Lawyer's Manual, 2009). 

            To conclude, there is much information to learn and steps to perform in the discovery process.  As explained, discovery in New York has some differences than federal discovery process, as with many states.  We have learned all the forms of discovery and how one must go about disclosing that information.  Material that must be turned over if requested as well as the information that does not have to be turned over to each party is explained in detail.  As one is going about the discovery process, they must be sure to do it properly or will face the consequences from the court in the form of sanctions. 

Works Cited

A Jailhouse Lawyer's Manual. (2009). Retrieved June 08, 2013, from Columbia Human Rights Law Review: http://www3.law.columbia.edu/hrlr/jlm/Chapter_8.pdf

Solimeo, C. (2007, May 11). An Analysis of the Impact of Discovery Rules on Dispositions in Criminal Cases. Retrieved June 08, 2013, from New York Law School Justice Action Center: http://www.nyls.edu/user_files/1/3/4/30/59/65/68/capstone060705.pdf

The Discovery Process. (2010, July). Retrieved 06 08, 2013, from Justice Educatioin: http://www.supremecourtbc.ca/sites/default/files/web/The-Discovery-Process.pdf