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New York Revamps Discovery Laws To Make Them Less Awful

Something 'good' may have just happened?

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One can imagine an adversarial system of criminal justice where law enforcement, prosecutors, and defense attorneys are forced to work together to present and share all relevant facts of a case. Sure, there would still be serious and necessary disagreement about what those “facts” mean. But a system a little more concerned with the truth and a little less concerned with conviction rates would arguably benefit everybody.

One can also imagine a unicorn that s**ts renewable fuel and provides free child care.

In the real criminal justice system, prosecutors have every incentive to unduly influence law enforcement or withhold potentially exculpatory information from defense counsel, right up to the limit of what the law allows. Even good prosecutors who don’t try to stretch the rules on pre-trial discovery are committing malpractice if they don’t use all available avenues to secure a conviction. If we want to change the balance of power between prosecution and defense, we can’t rely on the good graces of prosecutors, cops, or judges. We have to change the rules under which they operate.

New York State, for the first time in 40 years, is actually changing its discovery rules. The ABA Journal reports:

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 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.

The discovery changes are part of a package of statewide criminal justice reforms that includes eliminating cash bail for the majority of cases and limiting procedural workarounds to the state’s speedy trial statute.

The fundamental flaw in New York’s current discovery rules is that they only really have teeth once a trial is set. But, according to the Marshall Project, “more than 98 percent of felony arrests that end in convictions occur through a guilty plea.” That means defendants are often pleading guilty with no clue of what kind of evidence the state has against them.

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The new rules will help defendants and their attorneys make wiser decisions about plea deals. In addition to the 15-day post-indictment rule, the new package requires prosecutors to turn over information to defendants charged with a felony at least three days prior to any kind of deadline to accept a plea deal.

This is good. This is actually important criminal justice reform. Something good happened this week.

‘Blindfold’ off: New York state overhauls discovery laws [ABA Journal]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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