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Defense Refuses Reciprocal Discovery in Criminal Trial

A New York Criminal Lawyer said the defendant has been charged with attempted assault in the third degree, obstructing governmental administration, and harassment. He entered a plea of not guilty and, subsequently, made a motion for a bill of particulars and discovery, on which the court has already rendered a decision. The People now move, pursuant to section 240.20(4) of the Criminal Procedure Law, for reciprocal discovery of the names, addresses, birthdates, and pretrial statements of witnesses whom the defense intends to call at trial. The defendant urges that this court reject the prosecutor’s request, offering a number of arguments in support of his contention.

A Suffollk County Criminal Lawyer said there is no question that the future trend is toward more liberal discovery by both the defendant and the People. Currently, a nationwide reevaluation, on both the federal and state levels, is taking place in the whole area of pretrial disclosure. The American Bar Association’s Project on Standards for Criminal Justices, Standards Relating to Discovery and Procedure Before Trial (hereinafter referred to as the ABA Standards), and the Law Enforcement Assistance Administration’s National Advisory Commission on Criminal Justice Standards and Goals (hereinafter referred to as the NAC Standards) have both proposed model discovery provisions upon which much local and federal interest is focused and which many jurisdictions have begun to implement, either through legislative enactment or judicial rule-making authority.

A New York Criminal Lawyer said this court, believing that adoption of the ABA Standards is highly desirable and intends to follow those guidelines so far as consistent with New York law. The Standards require the prosecution to take the initiative in supplying defense counsel with such material and information as the names and addresses of witnesses whom the government plans on calling at a hearing or trial, together with their relevant written or recorded statements; statements of the accused or his codefendant; those portions of grand jury minutes containing the testimony of the defendant and of witnesses to be called at a hearing or trial; prior criminal convictions of government witnesses; and real evidence.

In the matter herein before this court, the defense, in response to the People’s motion for discovery, contends that the district attorney has not met the requirements of CPL section 240.20(4), since he has failed to demonstrate that the information being sought is material to a preparation of the People’s case, that the request is reasonable, and that the items demanded are within the defendant’s control. However, the defendant, in previously submitting his own motion made no greater showing of materiality or reasonableness than does the prosecution, and, yet, his requests have been largely granted. The fact is that the courts have seldom construed strictly such requirements in deciding motions for bills of particulars and discovery, in that doing so would place a great, often impossible burden on the parties involved and would, in many instances, work an injustice on the defense.

The defendant also claims that the names and addressed of witnesses are not discoverable under Article 240 of the CPL. He cites section 240.10(2), which defines property as any tangible personal or real property, including books, records and papers in support of his argument that names and addresses do not constitute such tangible personal or real property. However, subdivisions 1, 2, and 3 of section 240.20 all contain the term property, and the defendant, in his own motion, also requested the names and addresses of witnesses, which the court has granted him. He does not now assert that the court’s previous order was in error, but explains away the apparent discrepancy between his earlier request and his current position by contending that, while the names and addresses of witnesses are not discoverable, such information may be obtained through a bill of particulars. The sole function of a bill of particulars, however, is to define more specifically the crime or crimes charged in the accusatory instrument.

The names and addresses of witnesses are strictly evidentiary material not unauthorized under a bill of particulars. The ABA and NAC Standards both include this item among discoverable information; and courts have never considered a demand for names and addresses of witnesses to belong in a motion for a bill of particulars. As to the defendant’s statement that the definition of property excludes names and addresses, it should be clear to defense counsel that, here too, an insistence upon an overly technical interpretation of the words tangible personal or real property will, in most cases, operate to the detriment of the defendant. In practice, courts have never held to such a strict construction and have commonly regarded property to include lists of various items, whether an inventory of things seized from a defendant by law enforcement officials or names and addresses of witnesses.

A Westchester County Criminal Lawyer said that according to the defendant, whatever the general rule, granting reciprocal discovery would be an abuse of discretion in this particular case and would result in a deprivation of the defendant’s constitutional rights. The court disagrees. If the defendant is concerned over the possibility of his witnesses being intimidated from testifying by police or prosecutorial interrogation, then his proper remedy is to apply to the court for a protective order which provides that at any time after issuance of an order of discovery and before complete compliance therewith, the court may, upon a sufficient showing by the party ordered to permit inspection, vacate, restrict, qualify or defer the order of discovery or make any other order which is appropriate. The district attorney has not waived his right to discovery of names and addresses merely because the prosecution might, with more diligence, have been in possession of that information at an earlier date.

The defendant also argues that disclosure of the names and addresses of his witnesses would violate the constitutional and statutory rights of his codefendant. Although the court can envision certain instances in which granting the prosecution’s request for disclosure as to one defendant might involve possible constitutional violations of a codefendant’s rights, there has been no specific showing herein to warrant consideration of a protective order pursuant to CPL section 240.20(5).

The defendant’s final contention concerns the scope of the district attorney’s motion. The People have asked for disclosure of the names, addresses, birthdates, and pretrial statements of witnesses whom the defense intends to call at trial. Section 240.10(3)(b) of the CPL defines exempt property to include records of statements made to such parties, attorneys, or agents by witnesses or prospective witnesses in the case. This being the case, this court has no choice but to modify its previous order with respect to defendant’s motion for discovery to exclude the pretrial statements of witnesses made to law enforcement officials. Accordingly, the prosecution’s demand for statements is also denied. The district attorney’s request for the dates of birth of the defendant’s witnesses is denied, since this information is equally ascertainable by the People in view of the fact that the prosecution’s motion for the names and addresses of the witnesses the defense intends to introduce at trial is hereby granted. Defense counsel may, of course, apply to the court for a protective order should he wish to do so.

When conflicting claims of the parties would result to violation of the constitutional right of the accused, seek the assistance of a New York County Criminal Attorney. Question relating to the rights of an accused in criminal proceedings are best addressed and raised by a legal expert.

The Stephen Bilkis & Associates and its New York County Criminal Lawyer is expert in the case discussed above. Call us now and we will provide you free legal consultation.

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