50 N.Y.2d 222 | NY | 1980
OPINION OF THE COURT
Defendants were convicted upon a jury’s verdict of petit
In this State, pretrial discovery by the defense and prosecution is governed by statute, CPL article 240.
Discovery ordered in the court’s discretion under subdivi
The criminal discovery procedure embodied in article 240, adopted in substance from Rule 16 of the Federal Rules of Criminal Procedure (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL art 240, p 466; Judicial Conference Report on the CPL, Appendix B, Mc-Kenna, Memorandum and Proposed Statute Re Discovery, McKinney’s 1974 Session Laws of New York, pp 1860, 1868), evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence (see Notes of the Advisory Committee on the Proposed 1974 Amendment to Rule 16 of the Federal Rules of Criminal Procedure). In short, pretrial discovery by the defense and prosecution contributes substantially to the fair and effective administration of justice.
Examination of the disclosure proceedings here in light of the statutory provisions and the underlying legislative policy reveals that the prosecution request was properly granted. At the first hearing on the omnibus defense motion seeking discovery and the prosecution motion for reciprocal discovery,
Contrary to defendants’ assertion, the then applicable statutory prerequisites for reciprocal discovery were present. True, the request by defendants for disclosure of their written or recorded statements cannot serve as the predicate for discovery by the prosecution, for disclosure of such material is available to the defense as of right (CPL 240.20, subd 1, par [b]).
Also rejected is defendants’ argument that disclosure of the
Having concluded that the People’s discovery was proper under the statute, we reach and reject defendants’ constitutional assault upon the grant of the People’s motion here. Of course, in authorizing disclosure in favor of the People, care must be taken not to impinge upon the criminal defendant’s right not to be compelled to be a witness against himself. This Fifth Amendment privilege proscribes only testimonial compulsion, not that which merely makes a person the source of real or physical evidence (People v Thomas, 46 NY2d 100, app dsmd 444 US 891; Schmerber v California, 384 US 757). In this case, there has been no compelled testimonial disclosure in violation of the privilege.
The act of complying with a demand to produce specified evidence has communicative aspects, involving the tacit repre
In this case, there was no request for purely private papers. A simple request for sales receipts from Macy’s would not involve testimonial compulsion. The receipts were prepared by the department store in the normal course of business and the People, through defense counsel, were aware of their existence. Authentication also comes from a source other than defendants. True, the People’s demand here went beyond such a request, identifying the receipts as those allegedly showing the actual purchase of the merchandise defendants were accused of stealing. And by production defendants tacitly represented that they purchased the property and their belief that the receipts show the purchase. But by this assertion, defendants did not give evidence of a testimonial or communicative nature for purposes of the Fifth Amendment.
That the defendant may be required to disclose his defense prior to trial does not render the discovery scheme invalid, for "[n]othing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State’s case before announcing the nature of his defense”
None of this means that the State may require a defendant to lay bare his defense, purporting to advance the search for truth, yet at the same time shield its own evidence from discovery (see Wardius v Oregon, 412 US 470, 475).
Accordingly, the order of the Appellate Term should be affirmed.
Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed.
. CPL article 240 was recently repealed and new article 240 was added, effective January 1, 1980 (L 1979, ch 412). Unless otherwise indicated, statutory references are to the pre-1980 article. Article 240 as originally enacted retains force for cases commenced prior to the effective date of the new legislation (see L 1979, ch 412, § 4).
. Property which is exempt from discovery consists of "(a) reports, memoranda or other internal documents or work papers made by district attorneys, police officers or other law enforcement agents, or by a defendant or his attorneys or agents, in connection with the investigation, prosecution or defense of a criminal action, and (b) records of statements made to such parties, attorneys or agents by witnesses or prospective witnesses in the case” (CPL 240.10, subd 3).
. We recognize that in some cases discovery may be constitutionally required (see People v Iannone, 45 NY2d 589, 596-600).
. We also reject the argument that the grant of defendants’ request for all statements made to persons engaged in law enforcement activity, including oral statements, was a predicate for the People’s reciprocal rights. The statutory requirement of notification of an intention to offer at trial evidence of statements made by a defendant (CPL 710.30) militates in favor of mandatory disclosure of oral statements (see People v Spruill, 47 NY2d 869; People v Briggs, 38 NY2d 319; People v Utley, 77 Misc 2d 86).
. Defendants may not rely on the purported withdrawal of their motion for discovery to render improper the direction for reciprocal discovery. The equivocal withdrawal of the request for the Wills memorandum, with the mere characterization of it as property discoverable as of right as Brady material, without more, does not preclude a request for reciprocal discovery.
. The prosecution’s right to reciprocal discovery is not defeated merely because compliance with an order granting a defense motion for discovery simply informs the defendant that the People do not have either the information or property which is the subject of the request or that it does not exist. In such a situation, the defendant does receive the benefits of discovery, gaining knowlege of the extent of the State’s case and having available the enforcement mechanisms for discovery.
. The denial of defendants’ request for a list of all Macy’s employees working on the day of the crime does not justify characterizing the procedures here as "maintaining 'poker game’ secrecy” for the State (Wardius v Oregon, 412 US 470, 475, supra).