Discovery in criminal cases sometimes may be made voluntarily or because the parties are obligated to make disclosures by law, and sometimes it is ordered by a judge. This process is controlled by New York Criminal Procedure law which is explained below.
On motion of a defendant who has an indictment, superior court information, prosecutor’s information, information, or else a simplified information charging a misdemeanor pending, the court where the accusatory instrument is pending must order discovery as to any of the material not disclosed on demand, if it finds the prosecutor’s refusal to disclose this material isn’t justified, must, unless it’s satisfied the people have shown good cause why an order like this shouldn’t be issued, order discovery or any other order authorized by subdivision one of section 240.70 as to any material that’s not disclosed on demand, where the prosecutor has in fact failed to serve a timely written refusal, may order discovery with respect to any other type of property, which the people have the intention of introducing at the trial, on a showing by the defendant that discovery with respect to said property is material to the preparation of his or her defense, and the request is reasonable, and where property in the people’s possession, custody, or else control that consists of a DNA profile obtained from probative biological material that’s gathered in connection with the investigation or else prosecution of the defendant and the defendant establishes that this profile complies with FBI or state requirements, whichever are applicable and as these requirements are applied to law enforcement agencies who are seeking a keyboard search or similar comparison, and the data meets state DNA index system or else national DNA index system criteria as these criteria are applied to law enforcement agencies who are seeking a keyboard search or similar comparison, the court can actually order someone who has access to the combined DNA index system or its successor system to compare the DNA profile against DNA databanks by keyboard searches, or a similar method that doesn’t involve uploading, on notice to both of the parties and the entity required to perform the search, on a showing by the defendant that this comparison is material to the presentation of his or her defense and that the request is in fact reasonable. For the purposes of this paragraph, a “keyboard search” basically means a search of a DNA profile against the databank where the profile that’s searched isn’t uploaded to or maintained in the databank. On granting the motion, the court will, on motion of the people showing this to be material to the preparation of their case and that the request is in fact reasonable, condition its order of discovery by further directing discovery by the people of property, of the same kind or character as what was authorized to be inspected by the defendant, which he or she then intends to introduce at the trial.
On motion of the prosecutor, and also subject to constitutional limitation, the court where an indictment, superior court information, prosecutor’s information, information, or else simplified information that charges a misdemeanor is pending must order discovery as to any property that’s not disclosed on a demand if it finds the defendant’s refusal to disclose this material isn’t justified, and may order the defendant to provide some non-testimonial evidence. This order may, among other things, require the defendant to appear in a line-up, speak for identification by witness or else potential witness, be fingerprinted, pose for photos that don’t involve reenactment of an event, permit the taking of samples of blood, hair, or any other materials from their body in a manner that doesn’t involve an unreasonable intrusion or else a risk of serious physical injury, provide specimens of his or her handwriting, and lastly, submit to a reasonable physical or medical inspection of his or her body.
While the letter of the law can at times seem complicated or confusing, it doesn’t always have to be.
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