New York considers changing discovery rules that often leave defense lawyers in the dark
The order, which grew out of a recommendation by a state task force and the Innocence Project, gives new teeth to the U.S. Supreme Court decision in Brady v. Maryland —a 1963 case establishing that prosecutors must disclose favorable evidence to the defense. In the years since, prosecutors have often interpreted that mandate differently from the defense bar.
One of the key areas of contention centers on the definition of what type of favorable evidence must be disclosed. Some prosecutors argue that they only inform the defense about favorable evidence if it’s also material to the case.
But whether evidence is material can be a judgment call—one that defense lawyers say prosecutors shouldn’t be making.
“Prosecutors should be disclosing all favorable evidence, whether they believe it’s material or not,” says Barry Scheck, co-director of the Innocence Project.
“Prosecutors see the world through their theory of the case,” says lawyer Scott Levy of the Bronx Defenders, who is special counsel to the organization’s criminal defense practice. “Every defense attorney will tell you that some-thing a prosecutor doesn’t consider exculpatory is very exculpatory.”
RESPONSIBILITY, ACCOUNTABILITY
DiFiore’s directive, which took effect Jan. 1, also paves the way for judges to hold prosecutors in contempt if they fail to submit favorable evidence. Scheck says that prospect is critical to reform.
Currently, convictions can be vacated if information emerges later that the police or prosecutor failed to disclose key material. In New York, 94 out of 243 exonerations in the National Registry of Exonerations since 1989 involved cases in which prosecutors withheld exculpatory material, according to Sam Gross, registry founder and a law professor at the University of Michigan.
That kind of post-conviction relief is critical for individual defendants but won’t necessarily lead to systemic change.
“What will clean up the system is if prosecutors themselves are obligated to find favorable evidence and disclose it, and police officers will be sanctioned—or certainly sued—if they fail to disclose it,” Scheck says.
Currently, it’s extremely rare for judges to hold prosecutors in contempt for failing to comply with their Brady obligations. But in one notable Texas case, a judge did so five years ago in response to the high-profile exoneration of Michael Morton.
Morton spent about 25 years in prison after he was convicted of murdering his wife. In that case, the prosecutor withheld a piece of physical evidence containing DNA that cleared Morton of the murder. In 2013, the prosecutor in the case was charged with criminal contempt. He pleaded guilty, agreed to a 10-day jail sentence and gave up his law license. The following year, Texas liberalized its discovery law.
Separate from DiFiore’s order, New York Gov. Andrew Cuomo proposed revising the state’s criminal procedure law to require prosecutors to disclose some material as early as 15 days after arraignment.
But Cuomo’s proposal also creates a controversial new “right of redaction,” which would allow prosecutors to withhold evidence from the defense in a host of circumstances. They include whether police are conducting a continuing investigation or whether disclosing evidence could endanger witnesses.
Defense attorneys say Cuomo’s proposed right of redaction is far too broad, allowing prosecutors too much leeway in determining what to disclose. “The governor’s proposal as it currently stands is very, very problematic,” says defense lawyer Marvin Schechter, a past president of the New York State Association of Criminal Defense Lawyers. “It probably represents several steps back.”
THE SHIELD APPROACH
Prosecutors counter that it’s sometimes necessary to withhold material to shield complainants and other witnesses.
“We want to make sure we’re protecting our victims,” says Scott McNamara, Oneida County district attorney and president of the District Attorneys Association of the State of New York. Cuomo’s proposal “took into consideration our concerns when it comes to witness intimidation or witness elimination in some cases.”
McNamara adds that the concern is particularly acute in cases involving drug conspiracies, gangs and homicides. He once handled a case in which a witness to a murder fled the country immediately after her identity was disclosed in discovery.
“Someone told her they were going to kill her if she didn’t get out of town,” McNamara says.
But defense attorneys argue that widespread witness intimidation doesn’t happen in states with more liberal discovery rules. “The argument about witness intimidation is based on a false premise that witness intimidation is rampant,” says Levy of the Bronx Defenders.
Scheck of the Innocence Project adds that the “parade of horribles” feared by prosecutors hasn’t happened in other states that require early disclosure of police reports and witness statements. “We know that you can have open discovery and the sky doesn’t fall,” he says.
This article was published in the May 2018 issue of the ABA Journal with the title "Full Disclosure: New York considers changing discovery rules that often leave defense lawyers in the dark."
