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Criminal Law: Reform of the Discovery Process in New York State


On April 1, 2019, the New York state legislature passed a new criminal justice reform bill that, among other reforms, requires significant changes in thepre-trial discovery process. These reforms will be contained in Article 245 of the Criminal Procedure Law.  The new law goes into effect on January 1, 2020, and district attorneys throughout the state are already complaining that they lack sufficient funding to comply with its requirements.

In the discovery process, both sides of a criminal prosecution share information that represents potential evidence for either side. This is done partly to prevent “trial by ambush” – the sudden calling of a witness that the defense didn’t know about and had no time to prepare for, for example. The discovery process is practiced in some form or another in all 50 states.

The “Blindfold Law”: The Current Discovery Process in New York

New York’s current narrow version of the discovery process has been criticized by legal scholars and other jurists because of its “blindfold” approach. Under this approach, the prosecution doesn’t have to notify a criminal defendant of the evidence that will be used against him until the trial actually begins. Only Louisiana, South Carolina, and Wyoming share such restrictive discovery practices. In every other state, information exchange takes place well before trial.

The Blindfold Law dramatically affects criminal prosecutions in New York, to the detriment of criminal defendants. Even a completely innocent criminal defendant, for example, might accept a plea deal because he fears that the prosecution’s case is stronger than it really is due to the restrictions imposed by the Blindfold Law. 

The Prosecution’s Obligations under the New Reforms

The new reforms impose the following obligations on the prosecution:

Automatic Discovery

Currently, a prosecutor has no obligation to provide evidence to the defense until the defense issues a written demand for it. Even then, the prosecution must turn over only those materials that are demanded. Under the new reforms, discovery will be automatic. In other words, the prosecution’s obligation to turn over evidence will arise even without a written demand.

Both before and after this reform, the prosecution must give the defense an opportunity to inspect, copy, photograph, and test all materials relating to the case – as long as the prosecutor is in direct or indirect possession, custody, or control of such materials. 

Evidence of Uncharged Wrongdoing by the Defendant

In some trials, the prosecution will introduce evidence that the defendant committed a crime or other misconduct for which the defendant has not been charged. This typically happens for two reasons:

  • It may be a useful means of discrediting the defendant’s testimony at trial, by contradicting a statement made by the defendant or by casting doubt in the defendant’s trustworthiness or reliability; or
  • It may be a useful means of helping to directly prove that the defendant was guilty of the crime for which he was actually charged.

If the prosecution intends to introduce evidence of this sort, it must provide the defense with any such evidence that it intends to use at trial (or earlier if feasible) and it must state whether such evidence will be used to discredit the defendant’s testimony or to directly prove that the defendant committed the crime that he is charged with.

The Presumption of Openness

Sometimes a dispute arises as to whether a particular item or certain information is subject to the discovery process’s disclosure obligations. The material requested doesn’t have to be admissible evidence – it can be, for example, information that is “calculated to lead to admissible evidence.” Under the new presumption of openness, any doubts as to whether certain information or materials is discoverable are resolved in favor of discoverability. 

What the Prosecution Must Provide

At the very least, the prosecutor must provide the following materials, at least to the extent that such materials are within his possession, custody, or control:

  • Names and contact information for anyone with relevant information about the case, including law enforcement personnel (regardless of whether they will testify at trial);
  • Electronic recordings such as telephone calls (particularly 911 calls), regardless of whether the prosecutor intends to use them at trial;
  • ”Brady” materials (materials that are favorable to the defense). Brady materials are already discoverable, but the new law specifically lists the different types of Brady materials that are discoverable. These include evidence tending to establish the defendant’s innocence, evidence mitigating the defendant’s culpability even if he is guilty, and evidence calling into question the trustworthiness of a witness that will be used against the defendant, etc.
  • Search warrants and all related documentation, especially anything used to support “probable cause” for a search or arrest warrant;
  • An inventory of any property seized by the police;
  • A transcript of all testimony (in depositions, for example) or other oral communication that is relevant to the case;
  • Electronically created or stored information that is relevant to the case, such as USB files; and
  • Any other relevant evidence that the defense demands and the court orders the prosecution to provide. 


The prosecution is also subject to continuous disclosure obligations. It must provide the defense with new evidence as it becomes available – a last-minute witness, for example. And it must do so within a reasonable time. It is the prosecution’s duty to notify the defense of the existence of such evidence.

Plea Bargaining

The following scenario is common in New York: Someone is charged with a crime. The prosecutor offers a plea bargain without sharing with the defense the nature and quality of the evidence against him. When the defense requests the information it needs to make a rational decision on the plea offer, the prosecutor threatens to withdraw the offer if the defendant insists on demanding discovery materials.

Under the new reforms, however, the prosecution must provide the defense with discovery materials:

  • At least three days before the plea bargain offer expires, if the crime is a felony and the defendant has not yet been indicted; or
  • At least seven days before the plea bargain offer expires under most other circumstances.

The prosecutor cannot threaten to withdraw the plea offer unless the defendant waives his right to discovery. 

Grand Jury Proceedings

If the case will be subject to grand jury proceedings and the defendant has the right to testify (which is almost all of the time), in the runup to the proceedings, the defendant may need to decide whether to plead guilty or to testify before the grand jury with no knowledge of the extent of the state’s evidence against him. 

Under the new reforms, the defense has the right to the content of any statements made to law enforcement authorities, either by the defendant or by a co-defendant (a confession, for example), at least 48 hours before the defendant’s grand jury testimony.

The Certificate of Compliance

Under the new reforms, the prosecution must submit a Certificate of Compliance before trial and after it has completed its discovery obligations. The certificate must list the items provided, and it must guarantee that the prosecution has (i) exercised “due diligence,” and (ii) provided the defense with all known discoverable materials. The prosecution must file a new Certificate of Compliance every time the prosecution shares new information under its continuing disclosure obligations.

Defense Discovery Obligations

The defense must comply with its own discovery obligations by providing certain materials to the prosecution within 30 days after the prosecution serves the defense with a Certificate of Compliance. These materials are limited to evidence the defense intends to introduce at trial, including:

  • Expert witnesses to be called, as well as the content of their testimony;
  • Any payment or other inducement offered to a witness (expert witnesses are typically paid for their testimony, while co-conspirators may be offered immunity from prosecution);
  • Any electronic or other types of recordings;
  • Photographs, drawings, or charts;
  • Scientific reports and data;
  • Tangible property; and
  • Names, contact details, and birth dates of any witnesses the defense intends to call, except for witnesses used to challenge the credibility of another witness called by the prosecution.

Limitations on Discovery Obligations

In some cases, discovery can be restricted by the court – a prosecution witness’s identity might be concealed for safety reasons if the defendant is accused of being a mob boss, for example. The court has the option of denying, restricting, conditioning, or deferring a request for discovery. Many of these restrictions exist under the present system. However, the new reforms outline them in more detail.

Take Action before Time Runs Out

The new reforms, once they take effect, will make things far easier for a defendant charged with a crime – there will be no more “driving while blind” when considering a plea offer, for example. Nevertheless, defending yourself against criminal charges will remain tricky and complex, especially if the prosecution is highly motivated. 

Criminal prosecution is an extremely time-sensitive process, and missing a deadline could result in very unfavorable consequences. If you are being prosecuted for a crime, you need the assistance of a defense attorney as soon as possible. Contact Hacker Murphy immediately, either online or at (518) 730-7270, to set up a free initial consultation. We maintain offices in Albany, ColonieSchenectady, Saratoga, and Troy.