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By Jill K. Sanders, Esq.

There are only ten states in the US where prosecutors can withhold basic evidence from the defendant until the day a trial begins. New York is one of those states. With the start of the new legislative session, some elected officials are calling for change in New York’s discovery laws.
 

What Is the Current Law on Discovery?

New York’s current laws on criminal discovery are codified in Criminal Procedure Law Article 240. Under these laws, a defendant is entitled to receive a certain amount of “pre-trial discovery” from the prosecutor. However, there are many things exempted from this type of discovery. Prosecutors are not required to turn over all police reports, witness names, DNA evidence, and surveillance footage. The prosecutor also doesn’t have to provide copies of any witness statements.

A prosecutor may choose to provide more than she is legally required. But in some cases, a defendant may only know what crime he’s charged with and where the alleged crime occurred. Other than that, he won’t know much else until the matter proceeds to pre-trial hearings or trial.

Because most cases result in a plea bargain, most defendants don’t know what evidence a prosecutor may have against them. The current law prevents defendants from fully understanding the charges they’re facing. It further limits their ability to mount a proper defense to the charges.
 

What Are the Proposed Changes to the Discovery Laws?

Recent bills propose scrapping Criminal Procedure Law Article 240 completely. It would be replaced with new laws under Article 245. Under the new laws, the prosecution will disclose basic information about the case within 15 days of arraignment. Reciprocal discovery will be disclosed by the defense within 30 days. And both sides must file a “Certificate of Compliance” with the court.

A prosecutor will disclose statements made by witnesses, including those who may be defense witnesses. Additionally, prosecutors will provide the names of persons who may have information relevant to the offense. Law enforcement reports must be disclosed, as well as reports of scientific tests and examinations. Certain discovery must also be disclosed to the defense prior to a plea offer. The defense will also be under a duty to disclose its own evidence to the prosecution.

While the prosecution is already required disclose any potentially exculpatory information pursuant to Brady v. Maryland, that duty will now be codified in the law. For the past year, prosecutors have been ordered to disclose this evidence, as we discussed in our blog. Under the new laws, a court may also order the disclosure of additional discovery.

Two new sections of the proposed law could radically change discovery in New York. One proposed change would allow the parties to appeal rulings on discovery to an appellate justice while the criminal case is pending in the trial court. Another section would add a limited opportunity for pre-trial depositions of certain witnesses.

Importantly, the new laws would also allow for either party to seek a protective order from the court. Such an order would prohibit the disclosure of any type of discovery. For example, if disclosing the name of a witness would put that witness in danger, a protective order may be granted.
 

Why Make These Changes to Discovery?

Upfront discovery would allow a defendant to make a more informed choice earlier in the process. Plea agreements may be reached sooner, helping to ease the congestion in the courts. Or a defendant may know earlier that he needs to fight the charges, allowing him to gather relevant information to his defense sooner rather than later.

This process would also reduce the pressure on people to plead guilty when they are factually innocent. Some people who are held in jail prior to trial often plead guilty just to get back to their families sooner. But if a person knows the case against him, he can more assuredly weigh the risks of going to trial or taking a plea.

Most importantly, allowing defendants access to discovery may prevent innocent people from going to prison. A common saying in criminal law, known as Blackstone’s ratio, says, “It is better that ten guilty persons escape than that one innocent suffer.” These proposed changes may make New York safer by punishing only the truly guilty, and more just by exonerating the truly innocent.
 

References:

• Criminal Procedure Law Article 240 .
• New York Assembly, 2019-2020 Session, Bill A1431. Available at: https://www.nysenate.gov/legislation/bills/2019/a1431 (last accessed Feb. 1, 2019).
• New York Senate, 2019-2020 Session, Bill S1716. Available at: https://www.nysenate.gov/legislation/bills/2019/s1716 (last accessed Feb. 1, 2019).
• Editorial Board, “How to Make New York as Progressive on Criminal Justice as Texas,” New York Times, Jan. 15, 2019. Available at: https://www.nytimes.com/2019/01/15/opinion/new-york-texas-criminal-justice.html (last accessed Jan. 31, 2019).