Frequently Asked Questions
In New York State it is legal practice to withhold information pertinent to criminal cases from a defendant and his defense attorney until the very moment of trial. This is not because the information is unavailable; it is because the prosecution does not have to turn over such information earlier. For example, prosecutors are not required by law to hand over police reports, prior testimony, and any other evidence to the defendant until trial begins, and in some cases, not until the first witness takes the stand. A prosecutor does not even have to turn over evidence that might help a defendant or cast doubt on his guilt unless the prosecutor thinks it is important. This practice costs both taxpayers and the judicial system a great deal of time and money.
When a person (defendant) is accused of a crime, what options does s/he have?
The defendant can either choose:
1) to plead guilty to the crime that s/he is accused of committing or the defendant can choose:
2) to go to trial and make the prosecution prove its case.
Both options carry the risk of incarceration and/or may result in a permanent criminal record that can follow an individual for the rest of her/his life.
What does a defendant need to make the decision to plead guilty or to go to trial?
Information or the lack of information that a defendant has regarding his/her case, such as the type of evidence the prosecution has against him/her, can affect him/her ability to make a proper decision about how to handle his/her case.
It also affects the type of advise a defendant’s attorney can give him/her regarding the strengths and weaknesses of the prosecution’s case against him.
How does a defendant get information regarding his/her case?
The term "discovery" is used to refer to the exchange of information between opposing parties. In criminal cases, discovery is how a defendant gets information regarding his/her case from the prosecutor and vice versa. It includes the information that a prosecutor intends to use against a defendant at trial.
In New York, this process can take a long time.
What types of information can a defendant get?
A defendant is entitled to information such as, but not limited to, police reports, DNA evidence offered by the defendant, oral or written testimony from witnesses, what an expert witness will testify to, and any other evidence that the prosecution intends to use against the defendant at trial.
In New York, the defendant does not usually get this information at the same time or early enough to go through it in detail.
Why is it important to change the way discovery is conducted in New York State?
A person who is accused of committing a crime is in a very serious situation. His/her freedom is at stake. Without having the necessary information, a defendant and his/her attorney cannot fairly weigh a plea offer, develop a trial strategy, investigate the charges against him/her, or find and use any evidence that may help the defendant or show his/her innocence.
By forcing both sides to exchange information early on, intelligent decisions can be made based on the evidence. Defense lawyers would not be forced to submit unnecessary paperwork and request hearings just so that they can get the information that they need. Defense lawyers could advise a defendant based on actual evidence. A defendant could decide whether to proceed to trial or accept a plea based on the evidence against him/her. Cases could be resolved quicker. But these things can only happen if there is a change in New York’s discovery rules.
Has open discovery worked in other states?
Yes, in California, Florida, Illinois, Massachusetts, Michigan, and New Jersey. In these states, discovery is open and information, such as police interviews, and witness statements, is turned over by both the prosecution and the defense early on. These practices have been found to be more effective, efficient, and fair.
So, what is the bottom line?
Changing the current discovery process in New York to one that requires a more open and early exchange of information will:
1) Help innocent or over-charged defendants fairly prepare for trial;
2) Encourage guilty defendants to plead guilty without unnecessary and costly delays;
3) Prevent wrongful convictions; and
4) Be a more efficient
What can I do?
If you would like to help enact open discovery rules in New York State, there are a few easy steps that you can take:
1) Contact your state representatives (Senator, Assembly Member, Governor, Attorney General), and tell them to support Open Discovery in criminal cases (discovery reform).
To find out who are your state representatives and their contact information: Call 311 (within New York City) or 212 369-9675 (outside of New York City) and request the telephone numbers and mailing addresses of your state Senator, Assembly Member, the Governor, and the Attorney General.
2) Sign our online petitions: