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New Discovery Rules Proposed

Chaired by Justice Long, the Supreme Court Special Committee  on Discovery in Criminal and Quasi-Criminal Matters has just issued its final report. I was honored to be a member of the Special Committee and would like to publically thank Justice Long and all the committee members who worked long and hard to resolve some very difficult issues of discovery in the modern age in both criminal and municipal courts, including several specific references to Alcotest issues in particular:

  • The new rules would formalize that the state is to "provide" discovery, not just allow “inspect and copy”.
  • The list of discovery to be provided is expanded from books, tangible objects, papers or documents obtained from or belonging to the defendant”  to add  “ including, but not limited to, writings, drawings, graphs, charts, photographs, video and sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, into reasonably usable form “
  • The new rules would impose standard fee schedules, for example  $0.05 a letter size page and $0.07 a legal sized one with and CDs and DVDs to be provided at the actual cost of the CD or DVD. These could be modified by the AOC, from time to time, and in special circumstances, a new rule would allow a motion to the court for specific special fees in extraordinary circumstances described.
  • The new rules would formalize the State v Chun requirement that Alcotest digital data be provided in database form (not PDF).
  • The report recognizes that defense attorneys should not be compelled to divulge evidentiary deficiencies in Alcotest cases ( such as a deficiency in production of core foundation documents) to the court or state at discovery conferences or inquiries.
  • The report describes the problems of referring defense to Alcotest document websites, and why the State Police pulled their site down in 2010 in response to the issues brought up by the committee. The commentary clarifies that the committee found the word "provide" sufficient to mean that the State had to actually provide the documents rather than merely refer defense to a website to find the documents themselves.

Jeff Gold

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