New York (Finally) Levels the Discovery Playing Field

Discovery in New York State criminal cases has long been completely unfair to defendants.  The New York discovery rules have not been substantially revised since 1979.  More than a dozen reform bills that have been introduced over the last 40 years have been successfully blocked by the State’s district attorneys’ association which has argued, among other things, that providing information concerning witnesses places them in danger.

What little discovery was available in New York included something called a “People’s Voluntary Disclosure Statement”.  This basically useless document, which was just a couple of pages in length, was composed of a set of questions and responses drafted by the district attorney’s office with the goal of providing as little case-related information as possible.  Because of the lack of meaningful discovery, motion practice was similarly laughable.  Defense attorneys would typically file an omnibus motion at the beginning of the case seeking every conceivable form of pretrial relief without really knowing what was needed for their case.  Given the absence of information that could be obtained through meaningful discovery procedures, such a motion could not be tailored to the specific needs of a particular case and did little, if anything, to create a record for appeal.

Most criminal cases do not proceed to trial.  In fact, between 95 and 100 percent of all criminal cases nationally resolve by way of plea deal.  Under the prior New York rules, district attorneys were able to withhold information from defense counsel until just prior to trial.  This created two problems.  First, defense attorneys were forced to negotiate and evaluate plea offers with virtually no information.  Defendants were, therefore, placed in the unenviable position of making major decisions concerning their cases with little, if any, information regarding the strengths and weaknesses of the People’s case.  Additionally, if the defendant decided to proceed to trial, counsel would be forced to work through the majority of their trial prep time without important information that could form the basis for investigation of the underlying facts, effective cross-examination of witnesses, and viable defenses.

This is in sharp contrast to jurisdictions such as New Jersey, which has some of the broadest discovery rules in the country.  Here, discovery comes early, and is relatively plentiful.  This places everyone on a relatively level playing field (at least theoretically, if not actually), and promotes meaningful investigation of the State’s case as well as informed decision making concerning plea offers by defendants.

The new rules will take New York from being among the least open States in terms of discovery to the opposite end of the spectrum. District attorneys will be required to share discovery early in the case.  If a felony defendant is offered a plea, the district attorney must provide discovery at least three days prior to expiration of the deadline to accept it.  Defense attorneys will no longer have to file requests for discovery.  A wide array of information, including police reports and grand jury testimony, will have to be produced automatically 15 days after an indictment.  District attorneys may seek a protective order from a judge which would permit them to withhold witness information if they believe a witness will be harassed or intimidated.  The new discovery rules will take effect in January, 2020.

A criminal justice system that withholds information concerning a case from a defendant until the last possible moment is fundamentally unfair.  The amendments to New York’s criminal discovery rules finally address this problem in that state in a way that will hopefully promote fairness and due process.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey.  Mr. Friedman represents criminal defendants in the New York State criminal courts in Manhattan and Brooklyn, all New Jersey state courts, and the federal district courts in New York City and New Jersey.  If you have a charge in one of these courts, call Mr. Friedman to learn about your options, and to start planning your defense.


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