New York article 245
The state of New York recently passed new discovery laws that will take effect on January 1, 2020, impacting the current process of digital evidence disclosure. Article 245, which is part of a state-wide initiative focused on criminal justice reform, will require prosecutors to provide initial discovery within 15 days of arraignment. In turn, law enforcement agencies are required to proactively submit all forms of digital evidence as soon as possible. Proponents of the law hope it will expedite case processing periods and shorten jail stays for defendants detained before trial. Some law enforcement agencies are expressing concern about the article’s impact on their workloads and processes, which is why we spoke with key experts to learn more about its impact.
We spoke with Alex Wilson, Esq, Associate Counsel at the New York Sheriffs' Association and Chief Mike Ranalli, JD, former President of the New York Chief's Association to get their perspectives on the new Statute. Read below to see what the new requirements could mean for you and your agency.
Q&A on 245
Q: How do you expect agency evidence management and submission to the prosecutor to change after 245?
Mike Ranalli: The most fundamental change is that it will be a lot faster and therefore more burdensome. Today, the process of discovery is on-demand, meaning the prosecutor asks agencies for specific digital evidence, and agencies package it all together and share it. On January 1st, the process will become automatic—prosecutors will need to provide the defense with all digital evidence related to a case within 15 days of arraignment, meaning the police need to turn it over in less time than that. This will be a huge burden on both the agency and the prosecutor.
Alex Wilson: This means that all digital evidence will have to be collected, edited, collated, and disclosed within 15 days if it exists at that point. There is a grace period built into the law stating that the district attorney may, on notice, claim another 30 days to disclose the material that they have in their possession without a motion. But after the 30 days, the only further extensions available are at the discretion of the presiding judge.
Q: How will the changes from 245 impact agencies?
Mike Ranalli: I'm hearing that agencies may create dedicated discovery units to manage these changes, which could have a taxpayer impact. With smaller agencies, the burden to manage, pack and share data will likely fall on the officer.
Alex Wilson: It will throw a wrench into their current processes, and law enforcement agencies might be triaging cases following the implementation of this law. The scope of the statute is wide-ranging—it applies to every type of digital evidence and to almost every type of case you can conceive of: felonies, misdemeanors, violations, and simplified information cases. This means that all digital evidence from a given case would have to be submitted within 15 days. Imagine the volume of cases generated on a given day by a given agency — it becomes a daunting task for an agency to comply with the new discovery rules.
Q: What are the impacts of non-compliance with the timeline required by 245 on agencies?
Mike Ranalli: If there are any delays to the timelines specified in the statute that aren’t otherwise approved by a judge, the impact would depend on the circumstances of the delay and how relevant the material was to the case. It is an area that will have to be developed in new case law pertaining to the new provisions.
Alex Wilson: The statute does not lay out specific penalties, but I would speculate that it will depend on the severity of non-compliance. If the evidence that is failed to be turned over is relevant but not contributing towards the guilt or innocence of the individual, it could result in an admonishment from the court. If the failure to turn over the material is deliberate, or if itself is very dispositive as to guilt or innocence, the court has to make the decision if it calls for the dismissal of the case. The biggest penalty would be a miscarriage of justice; that is, a case is dismissed because law enforcement and the DA could not comply with the statute. In the case of sheriffs, who are elected officials, if a case is dropped due to the strict timelines, the public may not care why it happened and it could unfortunately impact re-election.
Q: What steps should agencies take to navigate the new requirements that come with 245?
Mike Ranalli: Agencies should be in active discussions with their district attorney’s offices, and the officer or detective at the time of the arrest should focus on duplicating and tagging evidence immediately. This clearly is the time where everybody should be going digital, as it will make the process so much easier. I like the digital systems because all the evidence is right there in the cloud. You can simply share it with the prosecutor.
Alex Wilson: The statute directs that district attorneys must maintain an open line of communication with law enforcement agencies. There are talks of centralized repositories for evidence where everything gets dumped into a central server with an identifying code or case number. This way, law enforcement has satisfied its obligation to make it available to the district attorney, who can then turn it over to the relevant defense counsel. This material would need to be scrutinized very carefully before being made available to the defense counsel, with attention to the confidentiality of witnesses by redacting identifying or personal information of non-parties, and chain of custody, which is paramount to the conclusion of prosecution.