The new discovery law—Article 245 of the Criminal Procedure Law—that was passed in New York in 2020 has had a dramatic impact on narcotics charges, the people who face them, and the criminal lawyers who defend them.
The Law Prior to the Change
“Discovery” is a term used to describe all of the relevant evidence in a criminal case, including those cases involving narcotics, before trial begins. Previously, before trial began in a narcotics case, both sides might or might not have had to exchange the discovery they had obtained. Under New York State law, for example, discovery was exchanged only if one or both sides made a written request for it. Also, there was no timeframe for discovery after the request was made; consequently, the prosecution was able to keep useful information from the defense until the eve of the trial. In fact, New York was one of only ten states that allowed prosecutors to wait until the day before trial before producing their discovery, leading defense attorneys to argue that the prosecution had an unfair advantage.
In addition, under what was once called the “Blindfold Law,” prosecutors were able to withhold any evidence that was favorable to the defense—which, obviously, was argued by the defense to be another unfair advantage for the prosecution.
The New Discovery Law
Some rules of discovery have remained the same under the new discovery law of 2020. Both the prosecution and defense can build their cases based on all available evidence. Evidence obtained during discovery includes physical evidence (the drug itself), police interrogations, witness lists and statements, and any other evidence that could play a role in a trial. Now more than ever, however, the new discovery law strives to ensure that evidence is not unfairly withheld by one side from the other.
Simply put, prosecutors must automatically turn over discovery to the defense in a timely fashion. The defense must be provided with all over the prosecution’s relevant discovery within 15 days of an arraignment. What is more, that timeframe can be extended by another 30 days if there is a large amount of discovery material—or if the prosecution cannot provide discovery within 30 days. After the prosecution has handed over all of its discoverable material, the defense has 30 days to hand over all of its discovery.
It should be noted that prosecutors in New York State and elsewhere have argued that the new law places an undue burden on them and the state has not provided sufficient resources to comply with the law.
The new law lists 21 types of evidence that are covered by discovery. Many of these are the same as those listed under the old law, such as statements made by the defendant, and the location and date of a defendant’s arrest. Not included was a list of witnesses or surveillance footage. Now, however, several new provisions have greatly expanded the list of discoverable material to include anything deemed explicitly favorable to the defense. For example, prosecutors are required to provide the name and contact information of anyone with information relevant to the case and any statement made by someone with information relevant to the case, even if he or she does not testify during trial. Evidence related to electronic recordings, such as 911 calls, must also be provided. These new witness requirements have concerned prosecutors in New York and elsewhere because, it is argued, that the new law places witnesses at risk and may discourage people to come forward with information about a crime.
How Does the New Law Help and Hinder Lawyers in a Narcotics Case?
Criminal defense lawyers in a narcotics case have argued that New York’s recent changes to discovery brings the state’s law into line with most other states, making the system fairer. As previously noted, New York was once only one of 10 states that allowed prosecutors to wait until the day before trial to provide discoverable materials—a practice that defense attorneys argued hindered their ability to defend their clients and gave the prosecution an unfair advantage. Under the new law, defendants also now have at least three days to view all the evidence that prosecutors have before considering a plea deal. In the past, prosecutors used to be able to offer a deal before an indictment without providing that information. As a result, defendants in narcotics cases and others were forced to make that decision blindly.
Even as it helps defendants and their criminal defense lawyers in narcotics cases, the new law also hinders them. For instance, it still permits judges to issue orders of protection, which prevents the defense from accessing any discoverable material if the prosecution shows good cause, such as protecting a witness who may be put at risk if his or her identity is made available too quickly. A protective order can alter the discovery timeline to limit the amount of time that the defense team has to access information about a vulnerable witness.
On the plus side, a judge can rule that only a defendant’s lawyer can have access to certain discovery information, including witness names and contact information. Conversely, the new law does not require prosecutors to provide the defense with anyone’s home address.
Most would agree that the by imposing accelerated discovery timelines, the reform in the discovery law may shrink case processing times, resulting in shorter jail stays for defendants held in pretrial detention. Also, by making it easier for the defendant’s team to build a defense, the discovery reform law may result in fewer and shorter jail sentences.
Again, in relation to discoverable material, any materials that are in the possession of law enforcement are in possession of the prosecution. Therefore, any delays in turning over discovery to the prosecution cannot be used as an excuse for turning over materials to the defense. Let us say that if the defense does not make a 911 recording available, the defendant can move for and the court must order a remedy or sanction. The prosecution must also provide a list to the defendant of what acts they intend to present and whether the prosecution will be using evidence of these acts to challenge the credibility (impeachment) of the defendant or as substantive proof at trial.
Of course, the defense has its own obligations under the new discovery law that may hinder them in some cases. These reciprocal discovery obligations include expert opinion evidence; tapes and electronic recordings, drawings and photographs; scientific reports and data; rewards and inducement offered to a witness for their testimony; tangible property; and names, addresses and birth dates of individuals (other than the defendant) the defense intends to call for testimony at trial. On a positive note for the defense, if the defendant chooses to present a witness to challenge the testimony of a prosecution witness, this information need not be turned over until after the prosecution witness testifies.
Again, on a positive note, if the defense is seeking certain information and materials, not already listed in the newly created Article 245, and that information constitutes material evidence in related to the subject matter of the case, the court can order the prosecution or any other persons or entity that possesses it to turn it over to the defense in response to its motion. At the same time, the defendant’s request must be reasonable and not available without “undue hardship.”
To ensure compliance and limit litigation over discovery disputes, the court may:
- Order that the parties discuss a disclosure issue to reach an agreement regarding the requested discovery;
- Require a discovery compliance conference;
- Require the prosecution to file an additional certificate of compliance with respect to any exculpatory or otherwise favorable information that has been provided to the defense; or
- Order any other measure required to ensure that the goals of discovery reform are met.
In response to a failure to comply with discovery obligations on either side, the court may use a number of remedies and sanctions, including issuing an additional order of discovery; granting a continuance; order that a witness be re-called; strike a witness’s testimony; and order a dismissal or some or all of the charges; among others. If the prosecution fails to disclose a statement made by the prosecution’s witness, the defendant must show that there was a reasonable possibility that the non-disclosure “materially contributed” to the result of the trial or proceeding.
Finding the Right Lawyer
In light of these and other changes in the discovery law in New York, it is more important than ever for a defendant in a narcotics case to find the right lawyer. A lawyer with a lot of experience may seem like the best choice, but not if he or she does not make it a practice to stay up to date with the changes in the law. Similarly, a lawyer who is new to this practice area may not have yet come up to speed with all the nuances that a criminal narcotics case is now subject to. Therefore, it is important to do your research and have thorough consultations with any lawyers you are considering.