Changes in NY Discovery Laws

New York legislators recently passed new laws that would pose to overhaul the current criminal defense system.

Essentially, the new rules would require prosecutors to share evidence (or discovery) as soon as possible, in the early stages of a case. If the case is a felony prosecution, and the state intends to offer the defendant a plea deal, then this information has to be shared at least three days before the deadline to accept.

The discovery phase is a crucial part of any legal case. In criminal prosecutions, the state must reveal the evidence that they have gathered. Usually, these include the names and statements of witnesses to the crime, as well as any evidence that may help the defendant’s case (called exculpatory evidence).

Historically, and according to the Marshall Project, New York State has long had some of the most restrictive discovery rules in the country. Essentially, New York prosecutors have been able to withhold information until just before trial begins.

This is problematic when less than two percent of felony cases go to trial. In fact, the vast majority end in convictions through a guilty plea, which meant that prosecutors were able to withhold certain evidence forever. This had the effect of putting a defendant at an unfair advantage, requiring them to make decisions based on an incomplete picture, or worse still, prepare for trial without knowing the full extent of the state’s evidence against them.

Defense attorneys have been trying to change the state’s discovery laws at least a dozen times over the last forty years, but have been stymied by the district attorney’s association’s efforts to block reform.

The D.A’s argue that providing witness information too far in advance would put witnesses in danger of tampering or intimidation. Their argument remains the same, but thanks to the new political make-up of the state legislature, the bill has passed as part of the new budget deal under Governor Cuomo.

Some of the biggest changes to the deal are that defense attorneys no longer have to file requests for discovery. In fact, the law now requires that a broad scope of information be turned over to the defense automatically fifteen days after an indictment.

If prosecutors are unable to meet this timeline, they will have an additional thirty days to get any material to the defense but can ask the judge if they are allowed to withhold some evidence if they claim it is not subject to discovery.

There is now the requirement for reciprocal discovery, meaning the defendant must turn over some of their evidence to the state, which would allow prosecutors the opportunity to request a protective order from the court if they have reason to believe that releasing a witness’s information would lead to their harassment. Defendants will also have the right to ask the judge to prohibit disclosure if there is a good reason to withhold information from the prosecution.

This reform dealing with criminal discovery is part of a set of legislation that will include sweeping overhauls to the justice system at large. Efforts to end cash bail for criminal charges and more court oversight to ensure the defendant’s right to a speedy trial were also passed by New York lawmakers recently.

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