A protective order is an order that prevents the disclosure of certain information under certain circumstances. In New York criminal prosecutions, protective orders are being sought by prosecutors and defense attorneys who are complying with new discovery obligations after the repeal of the state’s “blindfold law.”
Protective Orders and Discovery Reform
As of January 1st of this year, prosecutors are now required to provide a defendant discovery in criminal cases. The prosecution must provide this discovery as soon as practicable, but not later than fifteen (15) days after the arraignment. A thirty (30) day extension is available under certain limited circumstances. Similarly, defendants also have reciprocal discovery obligations.
A protective order is an order from a judge indicating that certain discovery need not be turned over to the opposing party. It may also limit who the discovery can be turned over to. Or it may permit the discovery to be redacted for certain information. The protective order can also revise the timelines under which discovery must be exchanged.
Why Issue Protective Orders?
A court can issue a protective order to deny or delay discovery of any item for good cause. Such good cause can include:
- A danger to the integrity of physical evidence
- The safety of a witness may be at risk
- A general risk of intimidation, harassment, or annoyance to anyone
- The affiliation of the defendant with a criminal enterprise
- The nature and circumstances of the facts of the case
Protective orders can also be issued allowing for more time for the exchange of discovery. For example, consider a case where the prosecution hasn’t completed forensic laboratory testing on a certain item. A protective order can allow them more time to complete the testing and turn over the results to the defense.
How to Obtain Protective Orders
Parties seeking a protective order must first work with opposing counsel to try to reach an agreement about any discovery issue. If this can’t be done, the party seeking a protective order must make a motion to the judge, who then has three days to have a hearing on the issue. After the hearing, the judge can grant or deny the request.
Sometimes, a compromise is reached. For example, the court can restrict access to the discovery only to defense counsel. This happens in cases where the defendant is alleged to be a gang member. The names and contact information for witnesses can be withheld from the defendant, but provided to his/her defense attorney, so he/she can’t engage in witness intimidation. A court can also restrict a defendant from having unredacted discovery. It may also specify that the defendant can only view the materials at a supervised location.
There are some cases where the prosecution or defense can redact discovery without a court’s permission. A prosecutor can redact the name and contact information for confidential informants and undercover police officers. Similarly, any party can redact social security and tax ID numbers. Attorneys can also redact their own work product. Finally, a defense attorney can redact a defendant’s own statements.
- Criminal Procedure Law § 245.70. Available at: https://www.nysenate.gov/legislation/laws/CPL/245.70 (last accessed Feb. 11, 2020).
- Center for Court Intervention, Discovery Reform in New York: Major Legislative Provisions (May 2019). Available at: https://www.courtinnovation.org/sites/default/files/media/document/2019/Discovery-NYS_Full.pdf (last accessed Feb. 11, 2020).