Judge John H. Wilson (ret.) has provided this article exclusively to
the New York Analysis of Policy and Government.
As was discussed in my last article, New York State has enacted a sweeping change in how the Criminal Courts handle one of their most basic functions – whether or not bail is set when a defendant is under arrest for a crime. Under the new rules, the Courts are required to consider the release of most defendants, with the least restrictive conditions applied to their release terms.
This had led to some truly ludicrous proposals for ensuring that the accused return to court, including New York City Mayor DeBlasio’s plan to give free Mets tickets, gift cards and free movie passes to criminal defendants in an effort to convince them to return to court.
But there is another criminal justice reform scheduled to take effect in the new year – one that has caused prosecutors in New York State to sweat even more than the changes to the bail statute.
In any criminal prosecution, the defendant is entitled to “discovery” – that is, information regarding the evidence the prosecutor intends to use against the defendant. This would include police reports, witness statements, photographs, laboratory reports – essentially anything that could be used against a defendant at trial.
A prosecutor is also obligated to turn over to the defense any materials that may tend to exculpate a defendant, such as a statement from a witness who cannot identify the defendant as the perpetrator of the crime, or a police report that indicates someone else may have been suspected of committing the crime.
In the past, the issue has been the timing of these disclosures to the defense. Under New York Criminal Procedure Law Section 240.20, disclosure of the prosecutor’s evidence was made “upon a demand to produce by a defendant.” The prosecutor could then seek a protective order from the Court for materials they believed should not be turned over to the defense, or that required redaction of information that may endanger a witness (such as removing the name of the informant from an application for a search warrant). If the prosecutor failed to turn information over to the defense, the defendant could seek a court order under CPL Sec. 240.40, and ultimately, seek that the non disclosed information be excluded from use at trial.
These rules led to an elaborate game of hide and seek between prosecutors and police officers on one side, and defendants and their attorneys on the other. After the initial request for disclosure was made by the defense, often the prosecutor asked the Court for additional time to produce the requested materials, or produced what information they had minutes before an evidentiary hearing was scheduled to begin.
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In my own experience, I have seen instances of prosecutors playing fast and loose with the discovery rules. When I sat as a trial judge in Bronx Criminal Court, I sanctioned a prosecutor for withholding evidence.
Under New York State’s discovery reform, prosecutors will no longer have the ability to disclose materials relevant to a criminal case at their own leisure. Instead, NY State Senate Bill S1716, which is due to take effect January 1, 2020, requires that “the prosecution shall perform its initial discovery obligations…as soon as practicable but not later than fifteen calendar days after the defendant’s arraignment…” A defendant no longer needs to file a request for discovery – instead, the burden is on the prosecutor to provide their evidence within 15 days of the beginning of the case.
Naturally, New York state prosecutors have pushed back against the new law. “without additional staffers and upgraded technology, the reforms would face a series of internal hurdles, district attorneys warned the Senate Codes Committee during a seven-hour public hearing in Manhattan. The increased pressure could inadvertently cost prosecutors cases, and, if material is not properly reviewed and redacted, witnesses and other parties could be put in danger, they said.”
But Governor Cuomo and the Legislature are standing fast, and will not even agree to the additional funding prosecutors have requested to implement the changes.
My own experience informs my opinion in this matter. When working as the Chief Prosecutor for a Native American reservation’s tribal court in North Dakota, I provided police reports, photographs and whatever evidence I had available to the defense prior to the arraignment of the defendant. Preparing these documents took up much of my morning, particularly on Monday, when there were no court sessions on the weekend. By providing these materials in advance, however, a defendant had the ability to fairly assess the case against him or her, and decide whether or not to plead guilty in an informed manner. In the majority of cases, the defendant took a sentence at the arraignment, knowing there was more than sufficient evidence to convict them.
I am sure there are readers who will feel that a defendant doesn’t need this information – he or she knows whether or not they’re guilty. As attractive as this reasoning sounds, this theory stands our justice system on its head. A defendant is always presumed to be innocent, until actually found guilty or enters a guilty plea. Under this principal, the defendant has the right to know what evidence the prosecutor has available, so that the defendant may make an intelligent, knowing, and informed decision on whether or not they wish to waive their rights, and receive a sentence.
For once, the NY State legislature has the right idea – and prosecutors have no one but themselves to blame for these changes.
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