In 2019, New York enacted comprehensive discovery reforms to ensure that New Yorkers accused of crimes have timely access to the most important information in their case, bringing New York’s discovery law in line with those of the rest of the country.
However, as a result of quiet rollbacks and executive orders during the COVID-19 pandemic, New York has yet to see the full benefit of these reforms. Nevertheless, law enforcement and prosecutors continue to push for further rollbacks to discovery. We are fighting back.
Discovery is the process by which prosecutors share information with the defense. Police reports. Witness statements. The name of an accuser. Video surveillance. Information about eyewitnesses. Crime scene photos. 911 calls. Medical Records. DNA results. A note on a little slip of paper that could lead to exoneration. All the information the prosecution has related to the case.
Without timely access to evidence, defense attorneys can not conduct the investigations, research, and analysis necessary for their clients to receive a complete defense.
Discovery reform requires prosecutors to disclose all relevant materials to defense attorneys on an accelerated timeline before trial, maximizing attorneys' ability to prepare a complete defense.
While it has never been easier to disclose information electronically in a timely manner, turnover of discovery was often inexcusably delayed by prosecutors, causing extensive pre-trial delays.
As a result of these delays, people spent months, or even years, in jail. In addition to the physical and mental trauma of incarceration, pre-trial incarceration can lead to loss of employment, housing, or custody of children.
The 2019 discovery law requires prosecutors to turn over all relevant evidence within 15 days of arraignment, preventing inexcusable delays and minimizing pre-trial incarceration. Extensions are permitted if the evidence is particularly voluminous.
Before the 2019 discovery law, prosecutors were allowed to withhold evidence until the day of trial. In the majority of cases, people were compelled to plead guilty without seeing the evidence against them.
Access to discovery ensures that people are given the facts to make informed plea decisions.
Before 2019, New York led the country in wrongful convictions, many of which were the product of prosecutors concealing information from the defense.
Often, access to discovery is the difference between a guilty and innocent verdict. Discovery reform minimizes the likelihood of wrongful convictions.
Imagine heading into trial. Your life, family, career, freedom is on the line. And you haven't seen any evidence. Imagine being forced to make the most important decision of your life, whether to plead guilty or not, and you don't even know who is accusing you. That was the reality for New Yorkers before discovery reform.
Before discovery reform, the law did not require the District Attorney to share documents and evidence with the defense. Therefore, each could decide what their policy will be. In most of the state, prosecutors turned over nothing until trial.
New York state lagged far behind the discovery laws and practices of the rest of the country. most other states had passed discovery laws that provide the accused with critical information early in the case before 2019, including Georgia and Texas.
“Texas is known as a law and order state. With that tradition, however, comes a very powerful responsibility to make sure our judicial process is as transparent and open as humanly possible.”
Right now, New York district attorneys are using scare tactics about witness safety to roll back reforms in a desperate attempt to retain their power instead of promote justice. New York prosecutors are asking lawmakers to ignore clear consensus and evidence from around the country that reform works *and* protects witnesses.
In fact, there are ROBUST WITNESS SAFETY PROTECTIONS in NY's reform legislation. The 2019 discovery law actually expanded the instances in which prosecutors may withhold the names and identifying information of witnesses who have safety concerns based on the nature of the case and potential retaliation for testifying
In February 2019, two special victims prosecutors in Texas sent a strong message to New York prosecutors: Open and transparent discovery is in everyone's interest--from the prosecutors and police to the accused--and critically, does not compromise witness safety.
"Open discovery helps restore Texans’ faith in our criminal justice system. After five years of reform, there hasn’t been any increased security concern for witnesses or victims. We hope that New York can learn from our experience."
Law enforcement and prosecutors continue to push for rollbacks to discovery reform to let prosecutors off the hook. Do not be fooled by attempts to characterize major rollbacks as mere "tweaks" or inconsequential "fixes". The proposed amendments to relax rules will effectively gut the 2019 discovery law.
Under a system in which prosecutors are once again excused from making full disclosure, New York would inevitably return to the discredited “blindfold” era of criminal discovery, with prosecutors exercising an information gatekeeping function over the defense.
