INSIGHT: How eDiscovery Tools Can Help DA Offices Comply with New York Law

New York’s criminal courts are on the precipice of a sea change. When the state’s Criminal Procedure Law Article 245 takes effect Jan. 1, 2020, district attorneys will face a host of new requirements surrounding discovery—most importantly a significantly accelerated timeline to deliver evidence, including electronically stored information (ESI) such as audio recordings and video files.

The statute’s provisions are a crucial step toward ensuring defendants and their attorneys have adequate access and ability to respond to evidence. But it also places new stress on already-strapped prosecutors, who must devote considerable time and resources to culling, reviewing and redacting ESI.

The solution to this stress can be found in powerful eDiscovery tools, which work alongside attorneys as a specialized partner. Let’s review what will be required under New York’s upcoming law—and how eDiscovery tools can help.

What Does the Law Require?

Article 245 reforms two main areas of New York’s discovery law and brings it up to speed with the 46 other states that follow “open discovery” laws. It’s the first major change to the state’s discovery law since 1979.

First, prosecutors must automatically allow the defendant to “discover, inspect, copy, photograph and test” all related case materials; previously, the defense had to file a written demand for such information. The statute lists 21 different kinds of materials prosecutors must provide to the defense, including these items that previously were not required:

• Statements from any person with relevant information—even if that person will not be called as a trial witness. This includes pretrial hearing witnesses
• Any materials that may aid the defense’s case, also known as “Brady” materials
• Electronic recordings, including 911 calls—even if the prosecutor does not intend to use them at trial
• Electronically created or stored information, whether obtained from the defendant or another source, that is related to the case

Secondly, prosecutors must fulfill this obligation to provide evidence within 15 days of arraignment, with a few exceptions. This window is intended to allow the defendant adequate time to properly investigate and respond to all of the prosecution’s evidence. In the past, prosecutors were not required to reveal this information until the commencement of trial—which in some cases forced defendants to enter pleas with no knowledge of the evidence held against them.

In addition, under the new law, in connection with any plea offer made by prosecutors during the pre-indictment phase of a felony case, prosecutors must provide discoverable materials at least three days prior to the expiration of the plea offer.

What Risks Come Into Play With an Accelerated Discovery Timeline?

A shorter window to perform discovery and prove relevance places a greater burden on prosecutors to find and catalog critical pieces of evidence; it’s not difficult to imagine key information going overlooked.

Meanwhile, prosecutors also have a limited time to adequately redact sensitive and private information. That’s increasingly true when it comes to audio and video evidence, which play a larger role in court cases due to the widespread use of surveillance, cell phone and police body cameras.

Text-based evidence can easily be reviewed for key phrases using a word processor’s search function; reviewing audio and video evidence without adequate eDiscovery tools requires hours of manual listening or viewing. It’s akin to searching for a needle of evidence in a haystack of material.

How Can eDiscovery Help New York Attorneys Meet the Challenges of the New Law?

Article 245 takes New York to the forefront of discovery reform. But the state’s 62 district attorney offices are now struggling to find a solution to new requirements by the January 1 deadline. Offices simply don’t have the budget for the additional manpower necessary to conduct time-consuming manual reviews on hours of evidence on the accelerated timeline.

eDiscovery tools that leverage artificial intelligence (AI) to turn audio and video evidence into searchable indexes allow offices to solve for scale and meet provision deadlines. For example, AI-powered eDiscovery software translates audio into text, allowing these files to now be keyword searchable for the first time—removing the need for humans to manually listen in.

And the accuracy of these AI-powered eDiscovery software tools is only improving over time, particularly those that leverage multiple machine learning capabilities, each trained to a specific task; one might be excellent at turning the English language into text, while another will accurately understand the names of medical terms. These combined capabilities ensure the user is receiving the best possible outcome—and most accurate evidence—in a rapid time frame that more than meets New York’s upcoming requirements.

There’s no question that Criminal Procedure Law Article 245 will have a dramatic effect on New York’s criminal court system. District attorneys offices looking to avoid a dramatic strain on their time and resources should investigate and implement eDiscovery tools quickly in preparation for this rapidly-approaching reality.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Chris Ricciuti is vice president of Product, Financial Services, at Veritone. He has over 15 years of financial services industry expertise at the convergence of regulatory compliance and technology.