Stop the Fear Mongering


Times Union | Stop the Fear-Mongering, Allow Disclosure of Evidence

By Tina Luongo and Barry Scheck

There is finally an appetite this legislative session in Albany to fix New York's broken criminal discovery statute. For too long, this outdated law has contributed to mass incarceration, wrongful convictions and strained precious court resources. Solving this problem would go a long way toward making New York a more fair and progressive state. But for decades, prosecutors have stymied reform with fear-mongering to maintain an uneven playing field where they call all the shots.

Discovery is the process by which prosecutors and defense attorneys disclose their evidence to each other prior to trial. This includes police reports, witness statements, scientific testing reports, video recordings and exhibits. Discovery is critical for attorneys to fully understand their cases and to properly advise their clients.

New York law allows prosecutors to withhold a vast array of evidence until a trial actually begins. Commonly referred to as a "blindfold law," it hinders attorneys' ability to give competent advice, properly investigate, and build an effective case. It also saddles courts with cases that could have been settled through pleas much earlier if attorneys had full knowledge of the evidence.

Under the current law, the state's 62 district attorneys have the option to provide earlier disclosures, and the overwhelming majority do not.

District attorneys argue that maintaining New York's extraordinarily restrictive discovery rules is the only way to protect witnesses and ensure that victims will still come forward to report crimes. Given the experience of other states, these claims are textbook scare tactics. Let's face it, the last-minute discovery process in New York provides prosecutors an enormous competitive advantage they simply don't want to give up.

The 35 other states with open discovery, including places like Texas, North Carolina, New Jersey and Florida, require early disclosure of police reports, witnesses and witness statements, and their district attorneys support the laws. They know that they are fairer and more efficient, and that they still have ample tools to protect witnesses.

As the New York State Bar Association concluded in a statewide analysis, New York's prosecutors have no valid response to the established fact that these rules work everywhere else. In fact, no other state's legislature has ever repealed or rolled back a broad discovery law after reform. Even in Brooklyn — through 30 years and three different district attorneys — the DA's office has voluntarily maintained a policy of giving the accused the bulk of evidence needed for lawyers to do their jobs. Broad discovery works.

State legislators and Gov. Andrew Cuomo must acknowledge this reality and advance reform that doesn't adopt overbroad restrictions based on invalidated assumptions that perpetuate the status quo.

If former Texas Gov. and current Trump administration Energy Secretary Rick Perry can enact one of the most comprehensive discovery reforms in the country without buying into disproved claims of doom, surely New York can. Albany must choose fair play and reject baseless contentions that New York is some special place where prosecutors need advantages not enjoyed by their colleagues across the country. It's not true — just look at 35 other states where broad discovery succeeds. Discovery reform is an idea whose time has finally come. Let's not lose the opportunity to do it right.