Tuesday, May 1, 2018

New York's Dirty Little Secret: Keeping Defendants in the Dark

New York's Secret NO Evidence Disclosure 

New York State has a dirty little secret. We are one of ten states where prosecutors don't have to hand over the evidence they plan on using against you. Evidence proves cases. Discovery is what the evidence is called. It's not like they don't ever have to provide discovery. They can choose to wait and wait and wait, then the day right before trial you get a package. Without early disclosure defense attorneys are in the dark. This is unfair and unjust but it happens every day in courtrooms across the state.



Do some district attorneys have an open file policy?
How does the lack of discovery impact the defense by your attorney?
How often does lack of discovery affect a DWI or DWAI drugs case?

Mario Cuomo Wants to Reform New York's Discovery Law


The governor wrote a recent NYT Op Ed piece titled "The Way to a More Just New York State."
https://www.nytimes.com/2018/01/15/opinion/cuomo-prison-reform-new-york.html

It seems the governor wants to challenge the way New York state has handled evidence disclosure in criminal cases. He wants to restore fairness to an unfair process. He has announced several reforms to fix the late disclosure of evidence.

New York Does Not Have Consistency with Discovery by District Attorneys

In some counties where we practice they have a very fair open file policy. In others it seems like we are banging our heads against the wall in trying to obtain anything. When you don't have ALL the evidence how can we advise our clients? When you don't have all the evidence how can you prepare a defense against the charges?

Sometimes We Use What We Have to Piece Together the Criminal Case Story

In many situations we have incomplete information. So we use our imaginations to come up with scenarios that make sense. We try to fill in the story gaps. But often our clients memories are not the best. Without having discovery and without knowing what we are facing any plea deal sits in a vacuum.

New York Plea Offers Require Evidence to Be Evaluated and Discussed 

The prosecution's case may be great or it may be horrible but without the complete evidence how are we to know? Even handicapping the best case will require an evaluation of our position. Can the district attorney prove each and every element beyond a reasonable doubt?

Evidence in DWI and DWAI Drugs Cases May Be Easy or Quite Complicated

We have seen DWI cases where the evidence is overwhelming but many others where it is not. There may be a problem with the prosecution proving operation, or a legal stop, or a legal arrest. They may have a horrible police report with inconsistencies or errors. They may have video or police call logs which don't support their version of the facts?

Often in many DWI and DWAI drugs cases without video we are left with only eyewitness testimony. If there is no blood or breath test the whole of the prosecution's case is what their witnesses will testify to.