All judges who preside over criminal cases in New York state will order prosecutors to disclose information favorable to the defense at least 30 days before a trial on a felony, a change that some legal experts say will dramatically change the way trials are conducted.
“This newly adopted measure will go a long way to help prevent and remedy systemic errors that contribute to wrongful convictions,” Chief Judge Janet DiFiore said in a statement Wednesday.
While many state and federal judges have issued such orders on their own, it is the first time that an entire state has sent such a directive to all its judges, said Lucian Chalfen, director of public information for the state court system. Judges were informed of the rule in a memo from Chief Administrative Judge Lawrence Marks distributed Monday afternoon.
“Number one, this is a very big deal,” said Barry Scheck, past president of the National Association of Criminal Defense Lawyers and co-founder of the Innocence Project. “Once prosecutors are ordered by a court to do that, they’re going to pay a lot more attention because they don’t want to be a position in which they can be held in contempt for failing to do so.”
In consultation with the Innocence Project, the state’s Justice Task Force recommended the rule change in a February report. Task force recommendations have also led to expansion of the DNA databank, video-recording of interrogations and procedural safeguards for photo identifications.
Manhattan District Attorney Cyrus Vance Jr., a member of the task force, welcomed the rule change.
“I think that prosecutors—who I believe are always trying to do what is right in the case—that given all the issues around wrongful convictions that an order is appropriate and we should not be afraid of a judge telling us what the law requires us to do,” he said.
New York state has had 234 cases since 1989 in which defendants have been exonerated, according to The National Registry of Exonerations. Eighty-eight involved the withholding of exculpatory evidence, said Sam Gross, founder and senior editor of the registry and a law professor at the University of Michigan.
The registry does not count a case as an exoneration until charges are dismissed. But several New York cases from this year have made it to the group’s watch list or have been listed as an exoneration:
• A Long Island man serving a 25-year sentence for child sexual assault was ordered released in July when a judge found that prosecutors withheld evidence about a detective’s long history of allegedly coercing and falsifying confessions.
• In Brooklyn, a murder conviction was vacated after 20 years because the jury was never told that a victim recanted her eyewitness identification.
• In the Bronx, a judge ordered a new trial for a man who spent 20 years in prison for the slaying of a retired police officer. The Bronx District Attorney’s Office failed to disclose the testimony of an informant who said that another man admitted to being the shooter.
Scheck said that New York state has one of the worst laws in the nation when it comes to requiring the disclosure of exculpatory information. He still thinks those laws must be reformed but said that the orders the judges will issue will be “a sea change.”
Bennett Gershman, a former prosecutor and a Pace University law school professor who writes and lectures on prosecutorial misconduct, welcomed the change.
“Doing it in this way can’t have any negative consequences. It can only produce a positive result. There’s no cost to this thing. There’s no downside,” he said. “They’re constitutionally, ethically and statutorially required to do this anyway. I think it’s a really big deal.”
The order requires prosecutors to turn over information that impeaches the credibility of witnesses, exculpates or reduces the degree of the offense or mitigates the degree of the defendant’s culpability or punishment. It does not matter whether the prosecutor believes the information is credible.
In issuing the order, Marks is citing Brady v. Maryland, 373 US 83, Giglio v. United States, 405 US 150, People v. Geaslen, 54 NY2d 510, and their progeny under the U.S. and New York state constitutions and Rule 3.8(b) of the New York State Rules of Professional Conduct.
Information that will be required to be turned over includes promises or inducements made in return for giving testimony, a witness’ prior convictions and uncharged criminal conduct and any motive that a witness has to lie. Disclosure should include any mental or physical illness or substance abuse that impairs a witness’ ability to perceive.
Judges would be required to issue the order at the first court date where both the prosecutor and defense counsel are present. Judges could choose to issue a model order included in the memo or write their own.
Disclosures are to be made at least 30 days before trial in a felony and 15 days before trial in a misdemeanor case. The model order requires prosecutors to look through files to find information favorable to the defense.
“Just the fact that they’re going to be directed to go to the relevant files is going to change everything in my view,” Scheck said.
Monica J. Hickey-Martin, who is a former prosecutor, deputy counsel for compliance at Acacia Network in the Bronx and the chair of the New York City Bar Association’s criminal law committee, said she is concerned that the rule will not lead to timely disclosure.
She acknowledges that the requirement that prosecutors look through homicide and other files for exculpatory information is a positive step but worries that the timeframe given to prosecutors to produce the evidence is longer than it is now.
“I’m concerned because this discovery order says something is timely 30 days before a felony trial and 15 days before a misdemeanor,” Hickey-Martin said. “I’m just not sure this model order moves the ball forward.”
“Having earlier access to exculpatory evidence is central to fairness and will reduce the incidence of wrongful convictions,” Seymour James Jr., attorney-in-chief of the Legal Aid Society and a member of the task force, said in a statement. “We’re pleased that the chief judge is promulgating these new rules which will help to ensure that Brady material is provided to defense counsel in a more timely manner, but are concerned that the ‘presumption of timeliness’ improperly conveys to prosecutors that it would be proper to delay disclosing known favorable information until 30 days before trial, rather than as soon as reasonably possible.
“To fully address the issue of evidence sharing, New York state must overhaul its broken discovery statute. We hope that Albany makes this a priority next session,” James said.
The rule also directs judges to order defense lawyers to comply with their statutory notice obligations and to provide effective assistance of counsel.