Although the law in New York requires both sides to disclose their discovery material prior to trial, civil and criminal proceedings have vastly different timelines in that regard.

In a civil case, attorneys for each side can interview the other’s witnesses for depositions and in general benefit from complete and total discovery. Criminal cases are different: prosecutors are not required to turn over police reports and witness statements until the 11th hour, a situation that has been commonly referred to as the “blindfold law”.

New York is one of four states (the others being Louisiana, South Carolina, and Wyoming) that allows prosecutors to withhold evidence from the defense until the day of the trial. Assemblyman Joseph Lentol has been pushing for a repeal of what many are decrying as one of the country’s most restrictive discovery processes.

Supporters of Lentol’s bill, A7292, are complaining that such a system makes it practically impossible for defense attorneys to properly prepare. They claim that without access to the evidence, such as police reports, held by the prosecution, defense attorneys are hard-pressed to evaluate the strength of the state’s case, and end up negotiating a plea deal as a result.

If passed, then Bill A7292 would require prosecutors to turn over the following evidence within 15 days of the defendant being arraigned:

• Witness statements
• Electronic police reports
• The defendant’s sworn statement
• Records of any property recovered from the defendant

After 90 days, the following information would have to be handed over to the defense:

• Witness statements made to the police during the first two weeks
• Expert witness information
• Trial exhibits
• Grand jury statements

Tina Luongo, the Legal Aid Society’s attorney-in-charge for criminal defense, pointed out that when property and money are at stake, information is readily available. When someone’s freedom is at issue, the defense is essentially blindfolded. The result is a congested court system and other complications.

At a recent rally, Public Advocate Letitia James publicly stated that an accountable and transparent criminal justice system is impossible when essential information about a case is withheld from the defense. She pointed out that current policies push defendants into agreeing to a plea deal without knowing all of the information relevant to their case.

In the State Senate, Senator Tony Avella has introduced  complementary legislation, Bill S6848, which seeks to make the following changes to the current system:

• Compel prosecutors to share evidence with the defense within a reasonable time period
• Improve the subpoena process through better communication and increased efficiency
• Provide increased protection for witnesses and confidential informants

Since the Legislature isn’t due to return to Albany until January, action on the bill will probably not occur until 2018.

Julie Rendelman is a highly experienced New York criminal defense lawyer with an office in Midtown Manhattan. As a former prosecutor, she understands the processes that the criminal courts follow inside and out. If you have a legal question regarding a criminal matter, then call 212-951-1232 for a free consultation or visit her website at RendelmanLaw.com.