Connecticut Seal

General Assembly

File No. 617

    February Session, 2018

Substitute Senate Bill No. 519

Senate, April 19, 2018

The Committee on Judiciary reported through SEN. DOYLE of the 9th Dist. and SEN. KISSEL of the 7th Dist., Chairpersons of the Committee on the part of the Senate, that the substitute bill ought to pass.

AN ACT CONCERNING OPEN FILE DISCLOSURE.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 54-86a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

[(a) Upon motion of a defendant at any time after the filing of the indictment or information, and upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable, the court shall order the attorney for the state to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements, admissions or confessions made by the defendant; (2) books, papers, documents or tangible objects obtained from or belonging to the defendant or obtained from others by seizure or process; (3) copies of records of any physical or mental examinations of the defendant; and (4) records of prior convictions of the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known to the attorney for the state or to the defendant.

(b) An order of the court granting relief under subsection (a) of this section shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.]

(a) As soon as practicable, but not later than thirty days after a defendant enters a plea of not guilty in a criminal case, the prosecuting official shall make available to the attorney for the defendant the following information and material that is within the possession, custody or control of the prosecuting official, the state or any agent of the state, including a person under contract with the state: (1) Police or uniform arrest reports, including statements of all witnesses; (2) books, papers, documents, photographs or other tangible materials held as evidence and material to the case; (3) relevant written or recorded statements, admissions or confessions made by (A) the defendant, or (B) any codefendant, if the defendant and codefendant are to be tried jointly; and (4) exculpatory information and material with respect to the defendant. Upon request from a defendant, the prosecutorial official shall provide such information and material in the same electronic format and file type, if any, in which the state maintains such information and material. If prior to or during trial, the prosecutorial official discovers additional information or material that must be disclosed to the defendant under this subsection, the prosecutorial official shall disclose such information or material to the defendant.

(b) As soon as practicable, but not later than thirty-five days before the start of a trial in a criminal case, the prosecutorial official shall make available to the attorney for the defendant the following information and material that is within the possession, custody or control of the prosecutorial official, the state or any agent of the state, including a person under contract with the state: (1) Reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons; (2) tapes and transcripts of any electronic surveillance of conversations involving the defendant, any codefendant or witness in the case; (3) a summary of any unwritten or unrecorded admissions or confessions made by (A) the defendant, or (B) any codefendant, if the defendant and codefendant are to be tried jointly; (4) relevant copies of records of any physical or mental examinations of the defendant; and (5) relevant records or copies of any such records of prior convictions of the defendant and any codefendant. Upon request from the defendant, the prosecutorial official shall provide any such information or material in the same electronic format and file type, if any, in which the state maintains such information or material. If prior to or during trial, the prosecutorial official discovers additional information or material that must be disclosed to the defendant under this subsection, the prosecutorial official shall disclose such information or material promptly.

(c) Upon motion of a defendant and upon a showing that the request is reasonable, the court may order the prosecutorial official to disclose to the attorney for the defendant relevant information or material not specified in subsection (a) or (b) of this section. An order of the court granting relief under this subsection shall specify the time, place and manner of making the disclosure permitted and may prescribe such terms and conditions as are just.

(d) The prosecutorial official may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any information or material subject to disclosure under subsection (c) of this section is relevant and material to the defendant's case. If the judge determines such information or material is not relevant and material to the defendant's case, the prosecutorial official may withhold such information or material from disclosure.

(e) Any information or material subject to disclosure under this section shall be made available for such disclosure, but the prosecutorial official may redact or withhold any portion of information or material, that the prosecutorial official is not required to produce. Upon motion of the defendant, the court may order any such redacted or withheld information or material subject to disclosure and inspection.

(f) No defendant, attorney for the defendant or agent of the defendant or attorney for the defendant shall further disclose such information or material disclosed by the state, except to persons employed by the attorney for the defendant in connection with the investigation or defense of the case or any successor attorney for the defendant, without the prior approval of the prosecutorial official or the court finding good cause to so disclose or that such information or material is already available to the public.

(g) The prosecutorial official shall make a record of any information or material provided to the attorney for the defendant pursuant to this section.

(h) Before the court accepts a plea of guilty or nolo contendere, or before trial, the defendant and the prosecutorial official shall acknowledge, in writing or on the record in open court, the disclosure of all information or material provided to the defendant under this section.

(i) A court may order the defendant to pay costs for tangible materials related to discovery under this section.

[(c)] (j) A motion under subsection [(a)] (c) of this section may be made only in a criminal case and shall include all relief sought under said subsection [(a) of this section] (c). A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice.

[(d)] (k) Prior to the arraignment of any arrested person before the court to determine the existence of probable cause to believe such person committed the offense charged or to determine the conditions of such person's release pursuant to section 54-64a, the [attorney for the state] prosecutorial official shall provide the arrested person or his or her counsel with a copy of any affidavit or report submitted to the court for the purpose of making such determination; except that the court may, upon motion of the [attorney for the state] prosecutorial official and for good cause shown, limit the disclosure of any such affidavit or report, or portion thereof.

Sec. 2. Section 54-86b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

(a) In any criminal prosecution, after a witness called by the [prosecution] prosecutorial official has testified on direct examination, the court shall on motion of the defendant or the attorney for the defendant order the [prosecution] prosecutorial official to produce any statement oral or written of the witness in the possession of the [prosecution] prosecutorial official which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his or her examination and use.

(b) Except as provided in sections 54-86d and 54-86e, upon the request of a defendant or the attorney for the defendant or prosecutorial official, not later than the thirtieth day before the date that jury selection is scheduled to begin or in the case of a trial without a jury, or not later than the thirtieth day before the date that presentation of evidence is scheduled to begin, a party may request that the other party disclose the name and address of each person the party receiving such request may use as a witness at trial to present evidence. Such disclosure shall be made in writing in paper form or electronically not later than the tenth day after receiving such request. On motion of a party and after notice to the other parties, the court may order an earlier date on which one or more of the other parties must disclose such requested information.

[(b)] (c) If the [prosecution] prosecutorial official fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

Sec. 3. Section 54-86c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

[(a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state's attorney, assistant state's attorney or deputy assistant state's attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.

(b) Any state's attorney, assistant state's attorney or deputy assistant state's attorney may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any material or information is exculpatory.]

[(c)] Each peace officer, as defined in subdivision (9) of section 53a-3, shall disclose in writing any exculpatory information or material which [he] such peace officer may have with respect to any criminal investigation to the prosecutorial official in charge of [such case] any criminal case for which such investigation is relevant.

Sec. 4. (NEW) (Effective October 1, 2018) (a) Notwithstanding any provision of chapter 961 of the general statutes, if the state intends to use at a defendant's trial testimony of a witness to whom the defendant made a statement against the defendant's interest while the intended witness was imprisoned or confined in the same correctional facility as the defendant, the state shall disclose to the defendant any information or material in the possession, custody or control of the state that is relevant to the witness's credibility, including:

(1) The witness's complete criminal history, including any charges that were dismissed or reduced as part of a plea bargain;

(2) Any grant, promise or offer of immunity from prosecution, reduction of sentence, or other leniency or special treatment given by the state in exchange for the witness's testimony; and

(3) Any information or material concerning other criminal cases in which the witness has testified or offered to testify against a defendant with whom the witness was imprisoned or confined, including any grant, promise or offer, as described in subdivision (2) of this subsection, given by the state in exchange for the testimony.

(b) If at any time before, during or after trial the prosecutorial official discovers any additional information or material required to be disclosed under subsection (a) of this section, the prosecutorial official shall promptly disclose the existence of the information or material to the defendant.

Sec. 5. (NEW) (Effective October 1, 2018) (a) The court shall allow discovery under sections 54-86a to 54-86c, inclusive, of the general statutes, as amended by this act, by the defendant in a criminal case of property or material:

(1) That constitutes child pornography, as defined in section 53a-193 of the general statutes; or

(2) The promotion or possession of which is prohibited under sections 53a-196 to 53a-196i, inclusive, of the general statutes.

(b) Property or material described in subsection (a) of this section shall remain in the care, custody or control of the state during all periods of disclosure.

(c) A court shall deny any request by a defendant to copy, photograph, duplicate or otherwise reproduce any property or material described in subsection (a) of this section, provided the prosecutorial official makes the property or material reasonably available to the defendant.

(d) For the purposes of subsection (c) of this section, property or material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing and examination of the property or material by the defendant, the defendant's attorney and any individual the defendant seeks to qualify to provide expert testimony at trial.

Sec. 6. Subsection (b) of section 54-86k of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

(b) If the results of the DNA analysis tend to exculpate the accused, the prosecuting authority shall disclose such exculpatory information or material to the accused in accordance with section [54-86c] 54-86a, as amended by this act.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2018

54-86a

Sec. 2

October 1, 2018

54-86b

Sec. 3

October 1, 2018

54-86c

Sec. 4

October 1, 2018

New section

Sec. 5

October 1, 2018

New section

Sec. 6

October 1, 2018

54-86k(b)

Statement of Legislative Commissioners:

Throughout Sections 1, 2 and 4, references to "material or information" and "material and information" were changed to "information or material" and "information and material" for consistency with existing statutes. Throughout Sections 1 and 2, references to "the defense" were changed to "attorney for the defendant" for accuracy. In Section 1(g), "prosecuting official" was changed to "prosecutorial official" for consistency. In Section 2(a) and (c), "prosecution" was changed to "prosecutorial official" for consistency and in Section 2(b), a grammar error was corrected.

JUD

Joint Favorable Subst. -LCO

 

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.


OFA Fiscal Note

State Impact:

Agency Affected

Fund-Effect

FY 19 $

FY 20 $

Criminal Justice, Div.

GF - Cost

842,225

917,070

State Comptroller - Fringe Benefits1

GF - Cost

277,643

333,172

Note: GF=General Fund

Municipal Impact: None

Explanation

The bill expands the types of evidence that must be disclosed to defense counsel automatically and within 30 days and results in a cost of $1,119,868 in FY 19 (partial year costs) and $1,343,842 in FY 20 associated with new personnel, equipment, and related fringe benefits. It is anticipated that this bill will significantly increase the workload of each of the judicial districts (JD) and that each JD will require one (two in the JDs with the highest traffic – Hartford and New Haven) additional paralegal ($61,138) and one high speed scanner ($7,200) to fulfill the requirements of the bill.

The Out Years

The annualized ongoing fiscal impact identified above would continue into the future subject to inflation.

OLR Bill Analysis

sSB 519

AN ACT CONCERNING OPEN-FILE DISCLOSURE.

SUMMARY

Current law requires a prosecutor to permit a defendant (and his or her attorney), upon the defendant's motion and certain court findings, to inspect and copy or photograph certain information and materials in the prosecutor's possession, custody, or control. It also requires a prosecutor, within 30 days of a defendant entering a not guilty plea in a criminal case, to automatically disclose any exculpatory information or material that he or she may have regarding the defendant.

This bill instead requires criminal prosecutors to (1) automatically make available to the defendant's attorney certain information and material (hereinafter “information”), including exculpatory information, within certain timeframes the bill specifies. (Several of the bill's provisions incorporate similar Connecticut Practice Book requirements applicable to discovery, see BACKGROUND.)

Among the types of information the bill specifically requires prosecutors to make available automatically, are: information about a “prison informant” who will testify at trial; transcripts of certain electronic surveillance recordings; and summaries of the defendant's unwritten or unrecorded confessions.

Several of the bill's provisions apply broadly to information that must be automatically made available under the bill, except prison informant information. For example, the bill:

The bill also (1) requires prosecutors and defendants to share with each other, upon request, information about trial witnesses and (2) expands the types of materials subject to existing limitations on disclosure of child pornography.

Lastly, the bill makes technical and conforming changes.

EFFECTIVE DATE: October 1, 2018

EXCULPATORY EVIDENCE ( 1 & 3)

Timeframe for Disclosure

Under current law, prosecutors must provide exculpatory information to the defendant within 30 days after the defendant enters a not guilty plea, whether or not the defendant requests it. The bill instead requires the prosecutor to make the information available as soon as practicable, but no later than that deadline. Under both existing law and the bill, if any exculpatory evidence is discovered after the initial deadline for providing it, the prosecutor must disclose it to the defendant, even if trial has begun.

Information Sources Expanded

Under current law, only exculpatory information in the prosecutor's possession must be disclosed. The bill instead requires the prosecutor to make available information in his or her possession, custody, or control or that of the state or an agent of the state (including a state contractor). (The bill does not require these entities to notify the prosecutor that they have this information. Current law, unchanged by the bill, requires peace officers to provide this information to prosecutors.)

Ex Parte Hearing

The bill eliminates a provision in current law that explicitly allows a prosecutor to request a private, in chambers hearing to determine whether information is exculpatory.

INFORMATION ABOUT PRISON INFORMANTS ( 4)

Under the bill, notwithstanding statutes on discovery, trials, and post-conviction proceedings, if the state (i.e., prosecutor) intends to use the testimony of a witness to whom the defendant made a statement against the defendant's interest while they were confined in the same correctional facility, the state must automatically disclose certain information to the defendant. (The bill does not specify a deadline for doing so.) Specifically, the state must disclose information in its possession, custody, or control that is relevant to the witness's credibility, including:

The bill specifies that if, before, during, or after the trial, the prosecutor discovers additional information after the initial disclosure, he or she must promptly disclose its existence to the defendant.

OTHER AUTOMATICALLY AVAILABLE INFORMATION ( 1)

Expanded Responsibility for Providing Required Information

Under current law, the information the prosecutors must, upon a motion from the defendant as described above, allow the defendant to inspect and copy or photograph includes:

Currently, the defendant must be granted access to this information if (1) the prosecutor or the defendant knows it exists and (2) it is in the state's possession, custody, or control. The bill instead requires the prosecutor to make (1) certain information available no later than 30 days after the defendant enters a not guilty plea and (2) certain other information available no later than 35 days before the trial starts. For any of this evidence, the prosecutor, upon the defendant's request, must provide the information in the same electronic format and file type, if any, that the state maintains the information.

Information Made Available Within 30 Days of a Not Guilty Plea

Under the bill, a prosecutor must automatically make available to the defendant's attorney specified information, as soon as practicable but no later than 30 days after the defendant enters a not guilty plea, if it is in the prosecutor's possession, custody, or control or that of the state or an agent of the state (including a state contractor). (But the bill does not require these entities to notify the prosecutor that they have the specified information.) This information includes:

The bill specifies that if a prosecutor discovers additional information after the initial deadline for providing it, the prosecutor must disclose it to the defendant, even if trial has begun.

Information Made Available At Least 35 Days Before the Trial Starts

The bill additionally requires the prosecutor to make available to the defendant's attorney, as soon as practicable but no later than 35 days before the trial starts, the following information if it is in his or her possession, custody, or control or that of the state or an agent of the state (including a state contractor):

The bill specifies that if a prosecutor discovers any of this information after that deadline, he or she must disclose it promptly.

INFORMATION DISCOVERABLE UNDER A COURT ORDER ( 1)

Under the bill, upon a defendant's request, the court may order a prosecutor to disclose any relevant information that the official is not automatically required to disclose. When ordering such disclosure, the court must specify when, where, and how it must be disclosed and may subject the disclosure to terms and conditions it deems just.

Under the bill, a prosecutor may request a private, in chambers hearing to determine whether the requested information is relevant and material to the defendant's case. If the judge determines that the information is not relevant or material, it need not be disclosed. If there will be a bench trial, the hearing judge cannot be the same as the trial judge.

WITNESS INFORMATION DISCOVERABLE UPON REQUEST ( 2)

The bill generally authorizes prosecutors and defendants to request certain witness information from each another, if the request is made at least 30 days before (1) jury selection is scheduled to begin or (2) the presentation of evidence in a bench trial is scheduled to begin, as applicable.

Within 10 days after receiving a request, the party must disclose, in writing or electronically, the name and address of each person who may be asked to testify at trial. Upon a motion, if proper notice has been given, the court can order parties to disclose this information earlier. Under the bill, if the prosecutor fails to comply with the court order, (1) the court must strike from the record the witness's testimony and (2) the trial must proceed unless the court determines that the interests of justice require a mistrial be declared.

Under existing law and the bill, information about certain victims can be withheld (see CGS 54-86d & -86e).

CHILD PORNOGRAPHY ( 5)

The bill subjects the following materials to existing law's requirements related to the disclosure of child pornography:

The bill requires the court to allow discovery subject to (1) the bill's and existing law's open discovery rules and (2) certain additional limitations currently in place regarding disclosure of child pornography. (Presumably, the bill is not making these materials automatically available.)

Procedure for Disclosing Child Pornography

The law limits the type of access defendants in criminal proceedings can have to child pornography material in the state's custody (see CGS 54-86m, much of which is incorporated into 5). The bill extends these rules to materials that are obscene as to minors or in which a minor is employed in an obscene performance and commercial sex advertisements that depict a minor.

Under the bill, as under existing law for child pornography, the materials and advertisements must remain in the state's care, custody, and control. The court must deny a request by a defendant to copy, photograph, duplicate, or otherwise reproduce the material. The prosecutor must make the material reasonably available to the defendant by providing the defendant or defendant's attorney or anyone the defendant seeks to qualify as an expert witness ample opportunity to inspect, view, and examine the material at a state facility or other facility the prosecutor and defendant agree on.

BACKGROUND

Discovery

Discovery is the process by which opposing parties in a lawsuit obtain documents, information, and other evidence from each other prior to trial. Court rules (specifically, the Practice Book), constitutional requirements, and statutes govern the discovery process.

Connecticut Practice Book

Chapter 40 establishes rules for discovery and depositions. Among other things, the chapter specifies the information that is subject to disclosure and imposes deadlines for disclosing it, imposes a continuing obligation on parties to disclose information subject to discovery, and establishes a procedure through which a court can order information to be withheld.

Materials Obscene As to Minors

Materials or performances are “obscene as to minors” if they depict a prohibited sexual act and, taken as a whole, are harmful to minors (CGS 53a-193).

“Prohibited sexual acts” are erotic fondling, nude performance, sexual excitement, sado-masochistic abuse, masturbation, or sexual intercourse. Materials are “harmful to minors” if they (1) predominantly appeal to minors' prurient, shameful, or morbid interests; (2) are patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) taken as a whole, lack serious literary, artistic, educational, political, or scientific value for minors.

Obscene Performance

An obscene performance is a play, motion picture, dance, or other exhibition performed before an audience that:

COMMITTEE ACTION

Judiciary Committee

Joint Favorable

Yea

39

Nay

0

(04/02/2018)

TOP

1 The fringe benefit costs for most state employees are budgeted centrally in accounts administered by the Comptroller. The estimated active employee fringe benefit cost associated with most personnel changes is 36.33% of payroll in FY 19 and FY 20.