One of the most memorable legal advances in criminal justice reform in 2017 was the high court’s pronouncement of rules and procedures surrounding the timing of revealing evidence that may exculpate criminal defendants. By articulating specific guidelines for trial courts and the potential for sanctions against non-compliant prosecutors, New York is poised to implement sweeping procedural changes in 2018, but will the enumerated changes have true meaningful impact for criminal defendants?

The impact of the failure to disclose exculpatory evidence to a criminal defendant in a timely manner cannot be underestimated, as this necessarily precludes the efficient administration of justice and puts criminal defendants in a fundamentally unfair position. Recently, a criminal defendant, charged as a drug dealer, faced a potential prison sentence of 25 years to life if convicted of drug trafficking related charges. John O’Brien, “Ex-Prosecutor: Cayuga County DA secretly withheld key evidence in 15 cases,” Syracuse.com (Nov. 2, 2016). However, the prosecution was in possession of a police report that they specifically withheld from the Grand Jury and from the defendant, which demonstrated that the defendant could only be convicted of misdemeanor drug possession. Id. The police report established that the defendant’s key role in the drug sale was that of a middle man, who received no benefits for bringing together the buyer and seller. Id. This police report provided the critical evidence to establish an agency defense. Id.

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