New York recently overhauled its Criminal Procedure Law, and criminal defendants are now provided with substantial additional rights to access the prosecution’s evidence far earlier in the proceedings and to a greater extent than they did previously.
However, unlike some other states, such as Florida, New York still does not permit depositions for factual discovery in criminal cases. A deposition is a witness’s sworn, out-of-court testimony, which is common practice in civil cases across the country, including New York.
In New York, even after the new criminal discovery rules were recently enacted, a deposition in a criminal case is only permitted under very limited circumstances. According to Section 660.20, a party requesting a deposition must show reasonable cause to believe that the witness’s testimony is material and that the witness will not be available to testify at trial.
Circumstances as to unavailability could include a serious medical condition or that the witness would not be under the jurisdictional control of the court at the time of trial. Therefore, depositions are not permitted for the discovery of facts and evidence, only to preserve testimony of an unavailable witness.
The Federal Rules of Criminal Procedure have substantially similar rules as to depositions in criminal cases and do not permit depositions for discovery. Therefore, even with the new criminal discovery rules in New York and the strong public policy supporting them for a broad exchange of information and evidence at an early stage of the proceedings, a criminal defendant is still not permitted to depose his/her accuser or key witnesses for discovery purposes in New York.
If depositions are so critical to civil disputes in New York, all other states and in federal court, where monetary damages are the primary remedy, the same concerns should apply at least as equally to criminal cases, where a defendant faces incarceration and a substantial loss of freedom.
If the true goal behind New York’s new discovery rules were to compel the parties to exchange as much information as possible and to frame issues for trial, depositions are more effective than a mere exchange of documents in serving those goals, because depositions would provide a defendant with critical details regarding the criminal charges.
Simply put, a deposition would allow the criminal defendant to get to the bottom of the accuser’s story or that of an important witness. For example, there may be discrepancies in deposition testimony as compared to statements to police.
Additionally, once a person is deposed, he or she is bound by that testimony at trial. If he or she tries to change his or her story and present different answers at trial, he or she would be subject to impeachment, which directly calls his/her credibility into question. This is incredibly important in cases where the prosecutor’s case relies heavily on witness testimony, as opposed to objective tangible evidence.
In this regard, as demonstrated below, Florida permits discovery depositions in criminal cases, and there is no significant reason why New York could not allow the same rights to New York criminal defendants.
New York’s Amended Criminal Discovery Rules
The New York State Legislature recently passed major changes to the laws that set forth the types of evidence that must be turned over to criminal defendants and the timing of such disclosures. Specifically, by repealing Criminal Procedure Law Article 240 on criminal discovery and enacting the instant Criminal Procedure Law Article 245, Chapter 59, effective Jan. 1, the Legislature substantially expanded the disclosure requirements of both the People and the criminal defendant.
The previous criminal discovery rules (Criminal Procedure Law Article 240) – dubbed the “blindfold laws”– were replaced with new statutes (Criminal Procedure Law Article 245) requiring the sharing of evidence by default between the prosecution and defense on an accelerated time line.
Prior to these amendments, prosecutors were almost always allowed to withhold such discovery material indefinitely. These blindfold laws created a substantial unfair disadvantage for criminal defendants, which often caused them to negotiate plea deals and prepare for trial without knowing of critical evidence against them.
Now, the new rules of Article 245 require that prosecutors share this evidence, or discovery, at the earliest stages of the proceedings. Section 245.10 provides that the “prosecution shall perform its initial discovery obligations … as soon as practicable but not later than fifteen calendar days after the defendant’s arraignment.”
The prosecution’s initial discovery obligations are that it “shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.
The new law enumerates 21 types of materials that prosecutors must turn over or allow the defense to inspect, including but not limited to statements of the defendant and witnesses, grand jury testimony, names and contact information for any person with relevant evidence, the name and work affiliation of all law enforcement personnel who has relevant evidence, expert opinion evidence, electronic recordings (including 911 calls), relevant photographs, scientific and testing reports, Brady material (evidence that favors the defendant), and relevant tangible property.
The prosecution is also obligated to “make a diligent, good faith effort to ascertain the existence of material or information discoverable” under the new rules, so long as such material is within its possession, custody or control. In this regard, evidence in the “possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.”
As for the defendant’s discovery obligations, he or she is required to produce to the prosecution, or
allow inspection thereof, the following items: witness contact information and statements, expert opinion evidence, electronic recordings, relevant photographs, scientific and testing reports and relevant tangible property.
Furthermore, Criminal Procedure Law Section 245.20(7) provides that when a court interprets these new discovery rules, there “shall be a presumption in favor of disclosure.”
The prosecution and defense are both required to ultimately serve and file a certificate of compliance attesting that they each have “disclosed and made available all known material and information subject to discovery.” Notably, the prosecution shall not be deemed ready for trial until it has filed such certificate of compliance.
Lastly, Section 245.80 allows a court to impose various remedies or sanctions for a party’s failure to comply with these discovery obligations, such as adverse inference orders, striking of testimony and dismissal of all or some of the charges.
Depositions in Florida Criminal Cases
For state felony prosecutions in Florida, a criminal defendant may take depositions for discovery purposes after the filing of the indictment or other charging document.
The defendant is permitted to depose various types of witnesses without a court order, such as the complaining witness, eyewitnesses to the alleged crime, any witness identified as a trial witness by a co- defendant, alibi rebuttal witnesses, persons who have exculpatory information, investigating officers, witnesses who have knowledge of statements made by the defendant or any co-defendant and expert witnesses.
In fact, “the procedure for taking the deposition, including the scope of the examination, and the issuance of a subpoena for deposition by an attorney of record in the action, shall be the same as that provided in the Florida Rules of Civil Procedure.”
Additionally, “materiality” for purposes of the scope of deposition questions is broad in that “material” means anything that is reasonably calculated to lead to admissible evidence. Therefore, in Florida, depositions in felony criminal cases are treated essentially the same as depositions in civil cases.
While Florida represents one example of a state’s allowing discovery depositions in criminal cases, other states allow such discovery depositions as well.
Based upon the forgoing, the New York Legislature should seriously consider expanding the new discovery rules to include discovery depositions of the complaining witness and other key witnesses, consistently with the criminal rules of procedure in Florida and other states.
Providing such depositions would also serve the underlying policies of the confrontation clause of the Sixth Amendment, which provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with witnesses against him.”
In sum, if the Legislature were concerned about a criminal defendant having an open book during
criminal discovery for documents, statements, recordings and other tangible evidence, it should be equally concerned about allowing such defendant to depose key witnesses prior to trial.
Joe Tacopina is the founder and managing partner of the Law Offices of Tacopina Seigel & DeOreo.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 See Fed. R. Crim. P. 15 (“A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice.”); see also United States v. Cohen, 260 F.3d 68, 78 (2d Cir. 2001)(“A movant must show that (1) the prospective witness is unavailable for trial, (2) the witness’ testimony is material, and (3) the testimony is necessary to prevent a failure of justice.”).
 C.P.L. § 245.20(1).
 See C.P.L. § 245.20(1).
 C.P.L. § 245.20(2).
 See C.P.L. § 245.20(4).
 C.P.L. § 245.50(1&2).
 See C.P.L. § 245.50(3).
 See Fla. R. Crim. P. 3.220(h)(1).
 See Fla. R. Crim. P. 3.220(b & h); see also State v. Pinder, 678 So. 2d 410, 416 (Fla. Dist. Ct. App. 1996)(“Florida Rule of Criminal Procedure 3.220 provides for extensive discovery, and allows a defendant to take depositions of persons with information relevant to the offense charged, including the victim.”).
 Fla. R. Crim. P. 3.220(h)(1).
 State v. Stephens, No. 2D18-4647, 2019 WL 6974289, at *1 (Fla. Dist. Ct. App. Dec. 20, 2019).
 See, e.g. Ariz. R. Crim. P. 15.3 (Depositions allowed if “a party shows that the person’s testimony is material to the case or necessary to adequately prepare a defense or investigate the offense, that the person was not a witness at the preliminary hearing or at the probable cause phase of the juvenile transfer hearing, and that the person will not cooperate in granting a personal interview ….”); Ind. Code Ann. § 35-37-4-3 (“The state and the defendant may take and use depositions of witnesses in accordance with the Indiana Rules of Trial Procedure.”); Iowa R. Civ. P. 2.13 (“A defendant in a criminal case may depose all witnesses listed by the state on the indictment or information or notice of additional witnesses in the same manner and with like effect and with the same limitations as in civil actions …”); Mo. Sup. Ct. R. 25.12 (“A defendant in any criminal case after an indictment or the filing of an information may obtain the deposition of any person on oral examination or written questions. The manner of taking the deposition shall be governed by the rules relating to the taking of depositions in civil actions.”); Neb. Rev. Stat. Ann. § 29-1917 (“at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the offense”); N.H. Rev. Stat. Ann. § 517:13 (“depositions shall be taken in the manner provided in civil actions”); N.D. R. Crim. P. 15 (“The deposition must be taken in the manner provided in civil actions ….”).
 See also Mattox v. United States, 156 U.S. 237, 242–43 (1895) (Holding that the Sixth Amendment dictates that “the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”).