Many defendants facing criminal charges and their attorneys never see...

Many defendants facing criminal charges and their attorneys never see the evidence purportedly gathered -- whether good, bad, or questionable. Credit: iStock

For those of us who believe in basic fairness in the criminal justice system, New York State is at a critical juncture. Lawmakers in both parties are considering a landmark bill that will bring our legal system in line with other states on a crucial issue: discovery in criminal cases.

Discovery is a legal term that describes the process by which evidence is shared between litigants in a court case. In civil matters, which usually involve disputes over money, New York’s discovery laws grant parties access to all the evidence early in the case. It is a simple, fair and efficient process. Yet in criminal cases, where a person’s freedom is at stake, our outdated discovery laws do not require prosecutors to share most of the evidence in their possession until the moment before a trial begins.

Notably, the vast majority of criminal cases never go to trial; they end in either negotiated plea bargains or dismissals. That means that many defendants facing criminal charges and their attorneys never see the evidence purportedly gathered — whether good, bad, or questionable.

In short, they are blindfolded. Evidence that may be favorable to a defendant may be overlooked or withheld by prosecutors while defendants, often times incarcerated in jail on unaffordable bail or facing the threat of a lengthy term of incarceration, are forced to make critical decisions whether to proceed to trial or plead guilty to a lesser charge. Alternatively, a prosecutor may ambush the defense by turning over massive amounts of discovery on the eve of trial, leaving defense attorneys no time to appropriately analyze or investigate it, or to properly advise their client. This is untenable, and explains in part why New York has one of the highest rates of wrongful convictions in the country.

In fact, the vast majority of states across the country have already reformed their criminal discovery laws to ensure that evidence is turned over to the defendant at the first court appearance or soon thereafter, and on an ongoing basis. New York has fallen way behind, ranking among the bottom four states in the nation. In 2013, for example, Texas passed the Michael Morton Act, a discovery reform bill named after a man who was wrongfully convicted because important evidence was not turned over to his attorney and therefore never presented to the jury. While Morton was languishing in prison, the actual killer went on to kill another woman, something that likely would not have happened if the information had been provided to the defense in the first place. While some prosecutors in Texas had reservations before the bill passed, these same prosecutors now celebrate the new discovery reforms.

Here in New York, the District Attorneys Association of New York has lobbied our local legislators to thwart reform entirely, utilizing a message of fear that is not based on the actual language in the current discovery reform bill. We urge our elected state representatives, from both sides of the political aisle, to carefully examine the Discovery for Justice Reform Act and realize that it brings overdue transparency to our justice system while keeping New Yorkers safe. This bill gives judges the right to block any evidence, such as witness names or contact information, from being turned over to the defense where that is a valid concern, such as in gang cases.

Faith leaders, organized labor, and crime survivor advocates have all supported discovery reform. In the interest of fairness, we urge our local elected officials to support reform as well.

N. Scott Banks and Laurette Mulry are, respectively, the attorneys-in-chief of the Legal Aid Society of Nassau County and Suffolk County.


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