[The
demand for discovery must be made within 30 days after arraignment on
the indictment in a felony case or the first appearance of counsel,
whichever is later, but before the beginning of trial. Where counsel
is present at arraignment, demands for discovery and requests for
bills of particular should be made as soon as possible so that
non-compliance can be dealt with in the form of a motion to compel in
the Omnibus Pretrial Motions, which are due within 45 days of
arraignment.
The
best practice is to serve the original discovery demand and request
for particulars upon the prosecution, and to file a copy of both –
along with a certificate of service – with the clerk of the court.
This practice keeps the record clear and lays the groundwork for any
future motion to compel.
In
those jurisdictions with “open file discovery” – a phrase that
has different meanings in different places – it still is incumbent
upon the defense lawyer to file Brady demands that are
tailored to the case at hand. Counsel should never rely on
generalized demands for “all favorable evidence.” Discovery,
except for Brady material, is limited to “tangible property.”]
____________
COURT OF ________________
COUNTY
OF ______________
-------------------------------------------------------------------X
THE
PEOPLE OF THE STATE OF NEW YORK
-against-
Index
No. _________
[NAME],
Accused.
-------------------------------------------------------------------X
DEMAND
FOR DISCOVERY
I am the attorney of record
for the accused ______________________. This request is made together
with the accompanying Request for a Bill of Particulars to help me
prepare for trial. Pursuant to CPL §§ 240.20 and 340.30, I am
writing this demand for you to produce the following information
relating to the charges pending against Mr. ____________________:
1. CPL § 240.20(1)(a)
Every
written, recorded, and/or oral statement of Mr. ________________
made, other than in the course of the alleged criminal transaction,
to a public servant engaged in law enforcement activity or to a
person then acting under his direction or in cooperation with him and
approximately when Mr. ______________ is alleged to have made each
statement and where he was when each alleged statement was made.
2. CPL § 240.20(1)(b)
Any transcript of testimony
relating to the criminal action or proceeding pending against the
accused, given by the accused.
3. CPL § 240.20(1)(c)
Every written report and/or
document, or portion thereof, concerning a physical or mental
examination, or scientific test or experiment, including any
laboratory reports prepared relating to the criminal action or
proceeding which was made by, or at the request or direction of, a
public servant engaged in law enforcement activity, or which was made
by a person whom the prosecutor intends to call as a witness at
trial, or which the People intend to introduce at trial, including
but not limited to
a. information regarding the
physical examination of Mr. ______________, including any photographs
of Mr. ___________’s physical condition; and memo book entries and
each other notation made by each police officer;
b. the results of any
fingerprint tests performed.
4. CPL § 240.20(1)(d)
Every photograph and/or
drawing relating to the criminal action or proceeding which was made
or completed by a public servant engaged in law enforcement activity
or which was made by a person whom the prosecutor intends to call as
a witness at trial, or which the People intend to introduce at trial,
including but not limited to photographs, diagrams, sketches, memo
book entries, and any other such writing pertaining to the location
of the arrest and/or the alleged damage done to the trailer.
5. CPL § 240.20(1)(e)
Every photograph and drawing
relating to the criminal action or proceeding made by or at the
direction of a police officer, peace officer or prosecutor of any
property prior to its release pursuant to the provisions of section
450.10 of the Penal Law, irrespective of whether the People intend to
introduce at trial the property or photograph, photocopy, or other
reproduction.
6. CPL § 240.20(1)(f)
All property alleged to have
been obtained from or attributed to the accused.
7. CPL § 240.20(1)(g)
Every tape and other
electronic recording which the prosecutor intends to introduce at
trial, irrespective of whether such recording was made during the
course of the criminal transaction, including but not limited to all
tapes of radio transmissions, tapes of telephone calls, and
videotapes, if any, as well as any SPRINT printout and precinct
telephone switchboard record or telephone log entries.
8. CPL § 240.20(1)(i)
The approximate date, time,
and place (a) of each offense charged, and (b) of Mr.
____________________’s arrest.
9. CPL § 240.20(1)(h)
Anything required to be
disclosed, prior to trial, to the accused by the prosecutor, pursuant
to the Constitution of New York State or the United States, including
but not limited to all property, evidence, information, or leads to
information, which are exculpatory or which could reasonably be
expected to weaken or affect any evidence proposed to be introduced
against the accused or which would in any manner aid the accused in
the preparation of an adequate and proper defense or which are
otherwise favorable to the accused or which may lead to exculpatory
or arguably exculpatory property, evidence, or leads, regardless of
any statute, rule, or regulation otherwise governing the time of
disclosure of such items, including but not limited to the items
enunciated in CPL § 240.45(1) and (2), on a continuing basis,
regardless of whether admissible at trial or not.
Any exculpatory evidence
and/or information pursuant to Brady v. Maryland, 373 U.S. 83
(1963), United States v. Agurs, 427 U.S. 97 (1976). Also,
specifically indentied evidence which defense counsels claim to be
exculpatory.
All
evidence within the custody or knowledge of the People which might
adversely affect the credibility of any witness that the prosecution
intends to call at trial (see Giglio v. United States,
405 U.S. 150 (1972); People v. Geaslen, 54 N.Y.2d 510, 446
N.Y.S.2d 227 (1981); People v. Cwikla, 46 N.Y.2d 434, 414
N.Y.S.2d 102 (1979); People v. Wallert, 98 A.D.2d 47, 469
N.Y.S.2d 722 (1st Dep’t 1983); People v. Hopper, 87 A.D.2d
193, 450 N.Y.S.2d 798 (1st Dep’t 1982)).
Kindly furnish me with the
foregoing within fifteen (15) days at my office. You are required to
provide all Brady material forthwith (see People v.
Velez, 118 A.D.2d 116, 504 N.Y.S.2d 404 (1st Dep’t 1986)). [In
making a Brady demand, counsel should consider all the ways
that the prosecution’s case could fail against the client and
demand – in as many and varied ways as possible – material
related to these potential failures. For example, in an
identification case, defense counsel should seek Brady
material that shows that one or several witnesses failed to identify
the accused and/or anyone else as the perpetrator. Counsel should
avoid making Brady demands that seek, in whole, “all
favorable evidence.”]
If you have any questions
concerning this demand, please notify me of them in writing prior to
the date by which these items are requested.
Dated: ________________,
New York
[Date] Respectfully
Submitted,
s/
________________________
[Signing
Attorney’s Name]
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