In any civil or criminal trial in the state of New York, both sides have to disclose their discovery material – the evidence and testimony gathered in preparation for trial – to the other side.

But New York also has a “blindfold law” that can make it impossible for a criminal defense lawyer to receive the state’s evidence early enough to review that material before a trial.

HOW DOES THE LEGAL PROCESS OF DISCOVERY AND DISCLOSURE WORK?

The process of discovery and disclosure works very differently in civil and criminal cases in this state.

In civil trials – discrimination and personal injury cases, for example – both attorneys have the virtually unlimited right to depose one another’s witnesses, conduct a thorough investigation, and disclose discovery material to the other side in a timely manner.

Criminal trials are significantly different. District attorneys in the state of New York are not compelled by law to disclose any witness statements or police reports to the defense until immediately before the trial actually begins.

With no time to review or make use of the discovery evidence, it’s as if defense attorneys in New York are blindfolded until the moment that a trial begins.

The result is that a defendant and his or her criminal defense lawyer may have no idea precisely what evidence a prosecutor is holding against the defendant. And that’s not fair.

IS THE BLINDFOLD LAW ABOUT TO BE CHANGED?

Only three other states permit prosecutors to keep defense attorneys blindfolded – that is, to keep them from examining the discovery material – until the actual first day of the trial.

But New York State Assemblyman Joseph Lentol (D-Brooklyn) is proposing legislation that would put the defense on a level playing field with the prosecution in all criminal trials in this state.

WHAT IS ASSEMBLY BILL A7292?

If it becomes law, Assemblyman Lentol’s proposal – Assembly Bill A7292 – would compel prosecutors in New York to disclose, within fifteen days of a criminal defendant’s arraignment:

1. the defendant’s own sworn statement
2. any witness statements
3. any electronic police reports
4. the records regarding any property seized from the defendant

And within ninety days of a criminal defendant’s arraignment, Assembly Bill A7292 would compel New York prosecutors to disclose:

1. witness statements to the police during the first two weeks after the arraignment
2. information regarding prospective expert witnesses
3. any exhibits the prosecution intends to introduce at trial
4. any grand jury statements

WHAT IS SENATE BILL S6848?

State Senator Tony Avella (D-Queens) is offering a similar proposal, Senate Bill S6848, which would:

1. require prosecutors to disclose evidence to the defense in a reasonable period of time
2. make the subpoena process more efficient
3. increase protection for informants and witnesses

Without reforms like those that Assemblyman Lentol and Senator Avella are proposing, defense lawyers in the state of New York will continue to have no practical way to assess the strength of a prosecutor’s case.

In other words, unless reforms are adopted, defense attorneys will continue to be blindfolded.

WHAT CAN BE THE CONSEQUENCES OF THE BLINDFOLD LAW?

As a result, defense attorneys have sometimes found themselves unprepared for prosecutorial surprises.

A defense lawyer could also end up negotiating a plea bargain without really knowing if a prosecutor has the evidence to convict – or if the prosecutor is in effect bluffing.

While Assembly Bill A7292 lingers in the State Assembly, and Senate Bill S6848 lingers in the State Senate, the supporters of discovery and disclosure reform are making some good arguments.

WHAT ARE THE REFORMERS SAYING ABOUT THE BLINDFOLD LAW?

Tina Luongo, speaking for the Legal Aid Society, points to the irony of a state civil court system that has a more effective discovery and disclosure system than the state’s criminal courts.

New York City Public Advocate Letitia James argues that a fair trial is impossible in a criminal justice system that withholds key information from defense attorneys. To present an effective criminal defense, Letitia James insists that a defense lawyer needs to have all of the relevant information.

In January, Governor Andrew Cuomo announced his support for reforming the state’s discovery and disclosure system. “We need discovery reform” as part of a larger package of proposed criminal justice system reforms, Cuomo explained in his annual State of the State address.

And in 2015, the New York State Bar Association called the state’s current discovery and disclosure system “outdated and unfair.”

WHY IS THERE A BLINDFOLD LAW? EXACTLY WHAT IS ITS PURPOSE?

Why is discovery material kept from a New York criminal defense lawyer until the day a trial begins?

For twenty-five years, more than a dozen proposals to reform the state’s criminal discovery and disclosure process have failed in the New York State Legislature.

Historically, district attorneys in New York have persuasively contended that the blindfold on defense attorneys functions to protect witnesses – and that the early disclosure of details about witnesses would place many of those witnesses in danger.

WHAT ARE PROSECUTORS SAYING ABOUT THE BLINDFOLD LAW?

Recently, however, some of the state’s district attorneys have been going above and beyond what the law requires, and they are generally cooperating with defense attorneys in the discovery and disclosure process.

The Brooklyn DA’s office, for example, usually offers full and early discovery.

“We’ve been able to find the right balance in how to keep our witnesses safe and also make sure the process is as transparent and open as possible,” acting district attorney Eric Gonzalez told the New York Times.

And Manhattan district attorney Cyrus R. Vance Jr. told the Times, “We do provide more than the law allows already.”

IF YOU FACE CRIMINAL CHARGES IN NEW YORK, WHO CAN HELP?

Until discovery and disclosure reforms in New York become discovery and disclosure laws, if you are charged with a crime anywhere in the state, you must be advised and represented by a defense lawyer who understands the implications of the blindfold law.

By conducting a comprehensive, independent investigation of your case, an experienced Westchester County criminal defense attorney can substantially reduce the possibility that any “surprise” witnesses or evidence might emerge that could damage your defense.

If you are accused of any crime anywhere in the state of New York, you must have an experienced defense lawyer aggressively advocating for justice on your behalf.

When your future and freedom are on the line, get the legal help you need. That is your right.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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