As reported in several media outlets, in addition to bail reform there is also a new discovery process in the Criminal Procedure law as of January 1, 2020, which includes some “automatic” discovery provisions which basically means the prosecutor needs to hand over certain materials to the defense within a relatively short period of time. Many of the items needing to be provided previously had to be “demanded” by the defense and as a result there were longer time periods involved. The changes are more related to timing and method than content especially regarding witness information and related criminal history background information although there are some provisions that expand the scope of what may need to be provided.
There are so many different aspects of the new discovery law that the legislature decided to repeal and replace the existing provisions instead of amending them. As a result, it is difficult to quickly summarize those provisions and their potential consequences.
Automatic Discovery
Pertinent parts of the new CPL §245.20 include (automatic disclosure – within 15 days of arraignment) the following as needing to be disclosed “if in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control”:
(b) All transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant. If in the exercise of reasonable diligence, and due to the limited availability of transcription resources, a transcript is unavailable for disclosure within the time period specified in subdivision one of section 245.10 of this article, such time period may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article; except that such disclosure shall be made as soon as practicable and not later than thirty calendar days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article. When the court is required to review grand jury transcripts, the prosecution shall disclose such transcripts to the court expeditiously upon receipt by the prosecutor, notwithstanding the otherwise-applicable time periods for disclosure in this article.
(c) The names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Nothing in this paragraph shall require the disclosure of physical addresses; provided, however, upon a motion and good cause shown the court may direct the disclosure of a physical address. Information under this subdivision relating to a confidential informant may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article; but the prosecution shall notify the defendant in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.
(p) A complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision, other than those witnesses who are experts.
Under the “old” law that was repealed as of January 1, 2020 (CPL §240.45), a transcript of a grand jury witness and also criminal history information of a prosecution witness basically still needed to be provided but it was required just prior to trial as opposed to early on in a case:
- After the jury has been sworn and before the prosecutor’s opening address, or in the case of a single judge trial after commencement and before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defendant:
(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony;
(b) A record of judgment of conviction of a witness the people intend to call at trial if the record of conviction is known by the prosecutor to exist;
(c) The existence of any pending criminal action against a witness the people intend to call at trial if the pending criminal action is known by the prosecutor to exist.
This is a significant change in timing as previously that material had a decent likelihood of never being provided as many criminal cases are resolved by agreement prior to trial. Although that still will likely be the case, defendants will now be more informed as to the strength of the case against them.
In addition to the specific statutory reference in the new §245.20(3) that a physical address need not be provided unless a court orders it, there is no specific requirement that a personal address or cell phone number need to be provided to the defense. Of course, it is the prosecution that shares that information if it has it and, on a scene, it is likely only law enforcement that would be gathering it as it is unlikely that a defense attorney or defense investigator would be there. Regardless, there is no specific obligation on the part of fire or EMS personnel to provide any information but also really nothing that would prohibit the sharing of information either.
Cooperating with law enforcement is certainly not a bad thing but it can inadvertently lead to some personal information being provided as part of this initial discovery process. If a home address or cell phone is provided, since it would then be in the possession of the prosecutor it is certainly possible that information will be passed along to the defense. As a result, I would suggest that any initial sharing of information on a scene be limited to member names, possibly their rank/title, and the address and phone number of the company. A potential policy/practice would be to inform all personnel that any inquiries on scene be directed to the officer in charge and for that officer then to provide the responder’s name, company address, and company phone number. In determining which names to be provided there obviously may be some discussion as to who had victim contact.
Information like home address and date of birth may be requested later by the prosecutor and/or law enforcement for purposes of running a criminal history check for a designated potential prosecution witness regardless of how it is that individual became a potential witness. In other words, fire or EMS personnel may fall into this designated potential prosecution witness category as a result of their service or just like any other citizen in his/her individual capacity. I would certainly expect the prosecutor to want to talk with a potential witness before giving them the designation that would trigger the need for the search for any convictions and that would also be the time to talk about the possible protection of that information.
Witnesses technically do not “belong” to either side although I think many assume that most witnesses in a case do belong to the prosecutor. Perhaps with the exception of law enforcement, that is not the case. A defense attorney is just as free to try to talk with a witness as a prosecutor would be but I have not come upon anything that would compel a witness to talk with a prosecutor, defense attorney or either’s investigator other than in a Court proceeding as a result of a subpoena. That is how things have been working and I do not see that changing.
I would also suggest that fire and EMS typically do not witness the crime itself. They rarely have the first hand personal knowledge of who did what to whom which is the crux of any criminal case. Of course, the aftermath is typically witnessed by first responders so there are certainly aspects of a case that a responder may have some relevant information regarding. That has not changed and, as a result, the likelihood of a first responder being called as witness has not either in my opinion.
This initial automatic discovery filters through law enforcement and ultimately a prosecutor. Of course, that does not mean that either has a goal of protecting a first responder from participating in the process but the filter begins with the prosecutor having knowledge of the first responder followed by a determination as to whether that responder may have evidence or information relevant to any offense charged or to any potential defense and whether that responder will be used as a prosecution witness to trigger the prosecution search for any criminal history.
The initial trigger to the disclosure of the “names and adequate contact information” is the prosecutor’s knowledge of that individual. If the prosecutor does not know that information, he/she has no duty to share it as the prosecutor would not be in possession of that information and that individual certainly would not be under the prosecutor’s “direction or control”. If a prosecutor later comes to learn that information, which could be as little as the name and contact information for the responder, he/she has a continuing duty to disclose (CPL §245.60). It is untested as to what “adequate contact information” means although the statute specifically indicates a physical address need not be provided.
Prosecutors in most cases will need to rely on law enforcement to gather and provide this information which will likely vary by the incident and charges that get filed. If it is just a traffic ticket following an accident, I would not expect law enforcement to try to gather the names of every first responder on scene. It certainly may be noted that a certain fire company or ambulance responded which could possibly lead to further inquiries but I would expect not. In an assault case for example, law enforcement may seek more information initially since the level of pain or loss of physical function of the victim is an element of the crime.
In any event, it is in the sole discretion of the prosecutor as to who is then designated a potential prosecution witness which is what triggers the requirement for criminal history being checked and record of convictions needing to be provided.
Potential Protective Order
Under the new statute, the prosecutor can, but does not have to, seek a “protective order” to limit some of this information being provided to the defense if he/she can convince a Court to find “good cause” exists to limit discovery in some way (CPL § 245.70):
- Showing of good cause. In determining good cause under this section the court may consider: constitutional rights or limitations; danger to the integrity of physical evidence or the safety of a witness; risk of intimidation, economic reprisal, bribery, harassment or unjustified annoyance or embarrassment to any person, and the nature, severity and likelihood of that risk; a risk of an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, and the nature, severity and likelihood of that risk; the nature and circumstances of the factual allegations in the case; whether the defendant has a history of witness intimidation or tampering and the nature of that history; the nature of the stated reasons in support of a protective order; the nature of the witness identifying information that is sought to be addressed by a protective order, including the option of employing adequate alternative contact information; danger to any person stemming from factors such as a defendant’s substantiated affiliation with a criminal enterprise as defined in subdivision three of section 460.10 of the penal law; and other similar factors found to outweigh the usefulness of the discovery.
If a Court finds that such “good cause” exists it may order the discovery to be “denied, restricted, conditioned or deferred, or make such other order as is appropriate” (CPL § 245.70).
Non-compliance
There is also a new section (CPL §245.80) that pertains to non-compliance with discovery which gives a lot of latitude to a Court to fashion a remedy if some violation is shown to have occurred. The law does not state that a case is automatically dismissed if some information was not provided although there is some leeway for a Court to do so if it felt the circumstances warranted it.
Additional Discovery
One recent article I came upon stated that the personal cell phone of a responder would need to be turned over to the defense and fire and EMS personnel would be subjected to invasive questioning in addition to having to comply with this law by immediately handing over other personal information to the defense. This is not true as the automatic discovery law only obligates the prosecution and the defense in a particular case and not potential witnesses. There is no requirement that a witness even talk with the defense or prosecution let alone turn over a cell phone absent a Court order or subpoena. That is simply not part of the automatic disclosure requirement.
There is, however, a process in the new law whereby a Court order could be obtained to require an individual or agency to preserve and/or provide other evidence. CPL §245.30 provides, among other things, that:
- The court in its discretion may, upon a showing by the defendant that the request is reasonable and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, order the prosecution, or any individual, agency or other entity subject to the jurisdiction of the court, to make available for disclosure to the defendant any material or information which relates to the subject matter of the case and is reasonably likely to be material. A motion under this subdivision must be on notice to any person or entity affected by the order. A motion under this subdivision must be on notice to any person or entity affected by the order. The court may, on its own, upon request of any person or entity affected by the order, modify or vacate the order if compliance would be unreasonable or will create significant hardship. For good cause shown, the court may permit a party seeking or opposing a discretionary order of discovery under this subdivision, or another affected person or entity, to submit papers or testify on the record ex parte or in camera. For good cause shown, any such papers and a transcript of such testimony may be sealed and shall constitute a part of the record on appeal.
This new and untested provision does provide the potential for litigation given the discretion of the Court and the required showing that needs to be made by the defense to preserve and obtain other evidence such as a picture, video, or audio recording taken on a cell phone. The individual and/or agency affected does have an opportunity to object but this process does create the potential for a company and/or individual responder to incur legal expenses and/or time away from work if the defense has gone to the extent of filing a motion seeking an order under this section and the agency and/or responder wishes to oppose the request. Although this is untested, the defense has a healthy burden under the statute for a Court to order an individual or agency to provide additional materials beyond what the prosecutor already had and likely disclosed.
Many agencies already have a policy in place restricting the taking of pictures, videos, and other recordings on scene and/or also have restrictions about the use of any such materials that pertain to particular calls. If a first responder wishes to avoid potentially being tangled up in this process, the best course of action to take, besides not responding at all, would be to not use his/her phone or camera while on a call.
Additionally, especially for any EMS provider, patient confidentiality is required to be maintained with a few exceptions pursuant to state and potentially federal law. It is important to not lose sight of those requirements if a decision is made to share information. That is also why it is best to have the company be the contact information provided so information requests come through a more controlled environment.
Reciprocal Discovery
Also, although most of the focus is on the obligation of the prosecutor, the defense also has some automatic discovery obligations although they are not nearly as broad (CPL §245.20). For example, if the defense has a person it intends to call as a witness, it needs to provide the prosecutor with that person’s name, address, date of birth and any recording of a prior statement made by that individual so to some extent there is a reciprocal automatic discovery obligation.
Conclusion
In short, because these statutes involve a new process there are a lot of possibilities and questions as it has not been tested and no “norm” has yet developed as it had under the prior statute. First responders have always been potential witnesses and that has not changed. The automatic discovery law will impact first responders in that (1) the name and “adequate” contact information of those responders should be disclosed to the defense by the prosecutor if the prosecutor knows the responder to have “evidence or information relevant to any offense charged or to any potential defense” and (2) a “complete record of judgments of conviction” should be provided to the defense by the prosecutor for anyone designated by the prosecutor as potential prosecution witnesses. A potential exists that a Court could order further disclosure of evidence such as a report or photograph in the possession of a company or individual responder but it remains to be seen how many defense attorneys will seek that type of Court intervention and how the Court will react when it does occur.
The best way to protect personal information is not to provide it but instead opt to use a company address and/or phone number. To the extent a case develops to the point that personal information is being requested by the prosecution as the responder will likely be a witness, then conversations should occur as to making efforts to protect what can be protected. Caution should be exercised in the making of video/audio recordings or taking pictures and first responders should be mindful of any related company policies and patient confidentiality requirements.
Fire and EMS personnel should not fear these statutes but should be vigilant about how they are interpreted, applied, and potentially amended as time goes on.