Taking off the ‘Blindfold Law’ in 2020- The New Discovery Reforms By Michael Joseph on January 10, 2020

New York is one of the toughest states in the nation for criminal defendants to be able to obtain discovery of the prosecutor’s evidence against them.  Defense attorneys have called this one law in particular, the “blindfold law,” which gives the prosecution the discretion to wait until the start of a trial to turn over evidence to the defense.  This leaves many defendants awaiting trial feeling like they’re in the dark, leading them to accept a plea deal without knowing if there’s any substantial evidence against them.  But a law passed in April of this year states that in January 2020, “both prosecutors and defense attorneys will have to share all “discoverable” materials within 15 days of arraignment.  The “discoverable” materials include showing the defendant witness statements, police body camera footage, and DNA tests.
Plea deals taken because of the “blindfold law” are so common that in 2018, only 5 percent of indicted NYC felony cases went to trial, “and just 2 percent of all cases including misdemeanors [went to trial], according to data from the Office of Court Administration that was analyzed by the Center for Court Innovation. This change in prosecutorial handling of materials and evidence makes many believe that there will be more trials in New York City in the year 2020.


To fund the imminent increase in the number of trials, the city plans to give an additional $75 million “to help the police department, public defenders, and prosecutors meet the law’s new requirements, with almost half that amount going to the district attorneys’ offices. Even though district attorneys’ offices are getting the bulk of the money, all five borough district attorneys have expressed problems they have with the new law in having to hand over materials.


The borough’s DAs are also claiming that processing evidence and materials within 15 days will be expensive to implement because they’ll need access to crime labs, body camera footage, and databases with a nearly two-week turnaround time.  However, with these new measures in place, many defense attorneys are looking forward to 2020.
Our New York trial lawyers believe that the new law will accomplish its goal of ensuring people know their rights and won’t feel pressured to plea. 

Our Westchester criminal defense attorneys who have experience in handling cases for people who have been maliciously prosecuted and wrongfully convicted know that the old antiquated discovery have been a major factor contributing to wrongful convictions. By withholding evidence up to the last minute and dumping documents on a criminal defense attorney, while the attorney is picking a jury, deprives the defendant and his attorneys of any meaningful opportunity to conduct an investigation. Our system of justice is formed on the basic tenants of an adversarial system, where a citizen had the right to challenge the evidence against him. However, the blindfold discovery rules, have served to prevent the adversarial system from working as intended. The prejudice is most serious in cases where people are actually innocent, and literally have no idea of what the evidence against them is. In many of these cases the evidence is a house of cards, based upon innuendo and evidence which is seriously challenged is found to be fabricated or unreliable. However, by preventing criminal defense attorneys adequate opportunity to investigate the evidence, shaky, unrelaible and even fabricated evidence has been tactily allowed in the criminal courts to go unchalleneged, which has resulted in numberous wrongful convictions. One of the most effective methods of over turning convictions has been to file a freedom of information  law request to the prosecutor's office and the police department, after a conviction, at which point they no longer can shield the information. Time and time again, our office has seen that critical evidence was withheld, that seriously undermined the evidence against the accused.  While this newly discovered evidence can serve as the basis to move to vacate a conviction, merely vacating a conviction does not undo the harm that has been done by a wrongful conviction.  Many times, had the criminal defense attorney had the evidence to expose shaky criminal allegations, the person would not have been convicted in the first place. It is ironic that police, government and prosecutors claim that the expense of sharing information is prohibitively costly, but they do not consider the damage done to a person's life who was been incarcerated and is innocent. Likewise, it is also ironic, that the government has the money to incarcerate people on often flimsy evidence, but claims they cannot afford the cost of providing people with the information to defend themselves from criminal allegations. 

Our New York City and Westchester criminal defense attorneys who handle police misconduct cases, applaud the new law and hope that by giving criminal defense attorneys the ability to investigate  and adequately challenge shaky evidence, which will result in fewer wrongful convictions. It is ridiculous that in civil litigation, which are disputes over money, there is full discovery, but in criminal cases where a person's liberty is at risk, the government is allowed to play hide the ball and routinely engage in trial by ambush, which deprives criminal defendants of the ability to seriously challenge the evidence presented against them. 
 

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