General Assembly Substitute Bill No. 519
February Session, 2018 *_____SB00519JUD___040318____*
General Assembly
Substitute Bill No. 519
February Session, 2018
*_____SB00519JUD___040318____*
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 Section 54-86a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):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)
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
JUD
Joint Favorable Subst. -LCO