New York Makes a Major Change in Requiring Disclosure of Evidence to Defense in Criminals Cases By Michael Joseph on May 16, 2019

For decades, the rules governing criminal trials in New York have been tougher on defendants and more favorable to prosecutors than those in most other states. Our White Plains Criminal defense attorneys know that the criminal system for years has been one of unfair surprise where the evidence and witnesses against our client were disclosed for the first time on the day of trial. This severely limits the ability of a criminal defense attorney to properly investigate the case and the credibility of the prosecution’s evidence and witnesses.

The New York State Legislature passed a law last month that will require district attorneys to turn over most of their evidence to the defense within 15 days of a defendant’s first court appearance. The state was one of only 10 that let prosecutors wait until the eve of trial to hand over witness names and statements and other crucial evidence to the defense, a practice that forced many defendants to decide whether to plead guilty without knowing the strength of the case against them. But now the Democrats who seized control of the Legislature last fall have pushed through a bill that spins New York Law in the opposite direction.

The overhauled law, written largely by public defenders, will fundamentally transform how trials are conducted in New York, moving the state from having one of the most restrictive rules in the country regarding turning over the government’s evidence — a process known as discovery — to having one of the most open. Before the bill passed last month, New York was behind conservative states like North Carolina and Texas in overhauling its discovery law, and its rules were only slightly less restrictive than those in red state. The new law requires district attorneys to turn over most of their evidence to the defense within 15 days of a defendant’s first court appearance. The fundamental and systematic unfairness of the old practice has undoubtedly resulted in many wrongful convictions of innocent people where overworked criminal defense attorneys are given information at the last minute and then forced to try a case by the seat of their pants without the ability to properly challenge the State’s witnesses.

Prosecutors and law enforcement organizations fought against the changes, arguing they will make it easier for defendants to intimidate witnesses, especially in sexual assault and gang cases.  However our Westchester Criminal defense attorneys believe that prosecutors just don’t want to give up a tactical advantage because of more people know they have a defensible case that will reduce the ability of the system to intimidate people into taking pleas.

The law, which takes effect in January, not only speeds up the timetable for prosecutors turning over evidence but expands the definition of what must be turned over. Currently, prosecutors are only required to share evidence they judge to be favorable to the defendant, as defined under the landmark Supreme Court ruling Brady v. Maryland. This has always been problematic because leaving it to the prosecution to decide what is favorable is like letting the fox guard the hen house. Additionally prosecutors view the case from their perspective and often don’t understand the defendants theory of the case and what evidence is favorable to that theory. But the new law requires them to go further than the Brady decision.

Our White Plains Criminal defense attorneys hope that the new law will level the playing field, and reduce the heavy advantage New York prosecutors have.  Criminal defense lawyers in New York have often called the old statute the “blindfold” law, saying it kept defendants in the dark about the evidence against them and forced many to decide whether to enter a guilty plea without knowing the strength of the case. Most of the state’s 62 district attorneys opposed loosening the law. For starters, they argued the new rules make them responsible for the failures of the police and other investigators to hand over evidence on time.

One of those cases concerned Derrick Penn, 37, who was accused of committing three armed robberies in 2013. Early in the case, Brooklyn prosecutors turned over detectives’ notes that indicated the robberies were part of a pattern that continued after Mr. Penn’s arrest. They also turned over security camera footage of the robber, who was taller than Mr. Penn, and cellphone data showing Mr. Penn was never near the scene of any of the robberies. Once his lawyers from Brooklyn Defender Services pointed that evidence out to prosecutors, they dropped charges.

For decades, Republicans who controlled New York’s Senate blocked more than a dozen efforts to change the state’s discovery statute. But in last fall’s election, the power shifted to Democrats, who quickly passed not only the discovery law, but measures to curtail the use of cash bail and speed up the pace of trials. Under the new rules, prosecutors will have 15 days to turn over evidence like police reports, photos, electronic recordings and grand jury testimony, including the names of witnesses. They may request an extension up to 30 days under exceptional circumstances. The law also requires the defense to disclose certain evidence 30 days after prosecutors open their files.

The law empowers judges to hold prosecutors in contempt if they fail to meet the deadlines and to bar the government from using evidence that is not properly disclosed. The statute also permits prosecutors to request a protective order to shield witness names and information until trial, though judges are not required to grant it. Perhaps most importantly, the discovery law pegs disclosure deadlines to the arraignment at the beginning of a court case rather than the trial near the end. That shift underscores a reality in New York that holds true across the country: About nine out of 10 cases never make it to trial because most people accept guilty pleas.

In another Queens case, Romeo Martinez, an undocumented immigrant, spent two years in Rikers awaiting trial on robbery charges before the district attorney turned over the name and telephone number of a city firefighter who had seen what happened and had called the police. At trial, the firefighter gave testimony that contradicted the accounts of two men who claimed Mr. Martinez had tried to take their wallets and had slashed one of them with a knife. The two men had attacked Mr. Martinez, not the other way around, the firefighter said. A jury acquitted him in just a few hours. Our Westchester malicious prosecution attorneys are handling a case seeking money damages against officers who withheld that the passenger of a vehicle involved in a hit and run identified someone other than our client as the driver, while our client spent eight months in jail.

Prosecutors warned that the new law would slow down cases, saying it creates an enormous burden for them to quickly collect and share files at a time when tools like police body cameras are vastly expanding the amount of potential evidence. Worse, prosecutors say, turning over a witness list too early gives ruthless defendants a chance to intimidate people who intend to testify against them.

Our White Plains Criminal defense attorneys know that the real fear of prosecutors is that flimsy cases often fall apart once an experienced criminal defense attorney does a proper investigation.


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The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

The Law Office of Michael H. Joseph, PLLC, has been helping injured victims recover compensation for their injuries for over a decade. Our attorneys are members of several prestigious organizations, including: 

  • New York State Trial Lawyers Association
  • American Association for Justice
  • New York County Bar Association
  • Westchester County Bar Association

To request your free initial consultation with our team, call our New York City office at (212) 858-0503 or our White Plains office at (914) 574-8330. You can also request a case review online.

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