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Current discovery rules make criminal defense more challenging

If you have been charged with a crime, you and your attorney will work together to come up with the best strategy to present your case in court during trial. A strong criminal defense can result in the lessening of your penalties or the dismissal of your charges. However, New York prosecutors may make things more difficult for defendants to defend themselves.

In New York, as well as in nine other states, discovery rules allow prosecutors to wait until immediately before the trial to turn in key evidence, such as witness names, witness statements and video surveillance footage. This evidence is generally supposed to be turned over to the defense upon request, but many New York defense attorneys argue that prosecutors often delay handing it over or ignore the request altogether.

This leaves defendants with two options: plead guilty without seeing the evidence or take a chance at trial and face a more severe punishment than they would have gotten if they had accepted a plea deal. Many defendants choose to avoid trial, with over 98 percent of felony arrests resulting in conviction via guilty plea. While defendants may benefit from seeing the evidence against them before making a decision, prosecutors argue that the requirement to turn evidence over early puts witnesses in danger.

The New York Legislature is working to make some changes to the current rules. A new early discovery bill requires prosecutors to turn over police reports, witness information and grand jury testimony early to allow defendants time to make an informed decision. The new rule may also specify what evidence needs to be turned over and allow judges to hold prosecutors who do not abide by the rules in contempt.

In the meantime, however, many defendants face the difficult decision to accept a plea deal without all the evidence or to take their chances at trial.

Source: The New York Times, "Defendants Kept in the Dark About Evidence, Until It's Too Late," Beth Schwartzapfel, Aug. 7, 2017

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