NYCLA ADOPTS CRIMINAL COURTS TASK FORCE DISCOVERY REPORT: “OPEN FILE” DISCOVERY ENDORSED CITYWIDE

 

FOR IMMEDIATE RELEASE

CONTACT: Anita Aboulafia (212) 267-6646, ext. 225, aaboulafia@nycla.org

 

NYCLA ADOPTS CRIMINAL COURTS TASK FORCE DISCOVERY REPORT:

“OPEN FILE” DISCOVERY ENDORSED CITYWIDE

 

NEW YORK, NY – March 28, 2006 – The New York County Lawyers’ Association (NYCLA) has adopted the Criminal Courts Task Force Discovery Report, which is based on the results of a 2005 survey that identified actual discovery practices in misdemeanor cases in New York Criminal Courts in four boroughs – Manhattan, Queens, Brooklyn and the Bronx. The Task Force surveyed Criminal Court judges, District Attorneys’ Offices, Legal Aid attorneys, private practitioners, members of the Assigned Counsel Plans and five alternate defender providers in the four boroughs.

 

Three custom-designed, anonymous surveys – for the prosecution, defense and judiciary – were developed. Of the 750 surveys that were distributed courtesy of NYCLA’s Justice Center, there were 131 respondents, representing a 17.5 percent response rate.

 

Conclusions

 

Not surprisingly, survey results indicated that the discovery practices vary greatly among the boroughs, with boroughs that have more liberal disclosure practices reporting the highest level of satisfaction among judges and lawyers. In those boroughs that employ a more liberal discovery process – Brooklyn, the Bronx and Queens – the survey concluded, “Respondents noted the expedition of case resolution, [and] the reduction in unnecessary adversarial posturing and applauded the elimination of unnecessary boilerplate motion practice as the fundamental advantage of the policies.”

 

Each of the four District Attorneys’ Offices that participated in the survey has an office policy on how discovery is processed. These policies vary from requiring strict adherence to Article 240 of the Criminal Procedure Law to open file discovery. Of the four boroughs surveyed, Brooklyn’s “open file” discovery process, which, according to the report, “eliminates the need for formal written demands, employs a limited discovery by stipulation and allows for pre-trial hearings on consent,” generated by far more overall satisfaction from respondents’ in all sectors.

 

With the exception of the response from the Manhattan District Attorney’s Office, overall responses in Manhattan reported the highest level of dissatisfaction with that Office’s current policy of limited pretrial discovery, written discovery demands and motions, and adherence to the Criminal Procedure Law. In Manhattan, the survey concluded, “[D]efense attorneys and judges were almost universally critical of the District Attorney’s discovery policy, endorsing the more liberal procedures utilized in neighboring boroughs.”

Task Force Recommendations

 

After careful review of the survey results, the Task Force developed a series of recommendations unanimously endorsed by the NYCLA Board, among them were:

 

1. Open file discovery or discovery by stipulation should be instituted citywide.

2. The defense should have a reciprocal duty to provide timely discovery, commensurate with the prosecution’s discovery policy in each borough.

3. Internal policies and procedures should be developed to facilitate more timely transmittal of materials to the District Attorneys and to the defense bar, including the possible use of electronic discovery transmittal.

4. Policies and procedures in each borough should be formally published and disseminated at the earliest opportunity.

 

According to Susan J. Walsh, Criminal Courts Task Force Chair, “The conclusions and recommendations are the direct product of the opinions and impressions of those lawyers and judges with daily experience in misdemeanor adjudications. The near universal call for open file discovery citywide among respondents from all sectors practically leapt from the survey pages themselves. It was no surprise that our findings dovetailed with some noted in the Interim Report of Chief Judge Judith S. Kaye’s Commission on the Future of Indigent Services.”

 

The Task Force is composed of lawyers, judges, court personnel and academics; two of its members – Michael J. Yavinsky and Jenny Roberts – were instrumental in drafting and distributing the survey and compiling the report.

 

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To download a copy of the report, log on to www.nycla.org and click on News & Publications and then on Board Reports & Resolutions.