NY softens criminal discovery rules to promote openness

New York state lawmakers have passed a major overhaul of the laws that dictate what evidence must be turned over to defendants facing criminal charges, reports The Marshall Project. The new rules require that prosecutors share this evidence, known as discovery, at the earliest stages of a case. If a defendant facing felony charges is offered a plea deal, information must be shared at least three days before his deadline to accept.

The changes “take New York from being dead last in discovery openness to being in the vanguard nationally,” says Jennifer Laurin, a University of Texas law professor who studies discovery laws.

In the discovery process, prosecutors reveal the evidence they have gathered, including the names and statements of witnesses to the crime. As The Marshall Project reported in 2017 in partnership with the New York Times, the rules in New York have long been some of the most restrictive in the nation, allowing prosecutors to withhold this information until just before trial.

Because so few cases go to trial—more than 98 percent of felony arrests that end in convictions occur through a guilty plea—prosecutors were almost always allowed to withhold the information indefinitely. Critics say these “blindfold laws” put defendants at an unfair disadvantage, forcing them to negotiate plea deals and prepare for trial without knowing important evidence against them.

New York’s discovery laws have not changed substantially since 1979. Legislators have introduced reform bills more than a dozen times in the last 40 years, but the state district attorneys association has always blocked the effort, arguing that providing witness information would put witnesses in danger of intimidation, harassment or worse. The organization objects to the new rules on the same basis, but with Democrats in control of both chambers of the state legislature for the first time in a decade, the path was cleared for the measure to be part of a budget deal with Democratic Gov. Andrew Cuomo.

Legislators approved the deal on Sunday night, and the governor is expected to sign it.

The new rules, which go into effect in January 2020, eliminate the need for defense attorneys to file requests for discovery and require that a wide range of information, including grand jury testimony and police reports, be turned over automatically 15 days after an indictment. The rules also require some “reciprocal discovery,” in which the defense must turn over some evidence to the prosecution. The measure allows prosecutors to request a protective order from a judge, allowing them to withhold witness information if they have reason to think the defendant may intimidate or harass the witness.

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