The Legal Aid Society Calls for a Modern Criminal Discovery Statute to Replace New York State's Outmoded and Unfair “Blindfold Law” (CPL Article 240)

The Legal Aid Society has been a leading voice in the movement to reform and modernize New York State’s highly restrictive criminal discovery rules.

Discovery is the process by which the law requires the parties in court cases to disclose their evidence to each other prior to a trial. In a criminal case, discovery materials include the evidence collected during the investigation and prosecution of the charges, such as police reports, statements of witnesses, scientific testing reports, video recordings, and exhibits.

In civil cases when money is at stake, lawyers in New York get complete “discovery” of the opponent’s case, and even the chance to interview all the witnesses in depositions. But in criminal cases where liberty is at stake, New York’s current law does not require District Attorneys to turn over to defendants the police reports or witnesses’ statements until the day trial actually begins. A person charged with a crime in New York doesn’t even have a right to learn who is accusing them. This leaves defendants blindfolded to the evidence against them.

New York needs to bring its criminal discovery law in line with the rest of the country to ensure fairness and transparency in the criminal justice system. The law must require early discovery of police reports, witnesses and witness statements. Without access to discovery, while a person is awaiting trial, their defense attorney is unable to investigate the state’s case against them or help innocent people to clear their names. Given that more than 95% of criminal cases end in a plea bargain, the vast majority of people accused of crimes may never see the evidence against them when making critical decisions about whether or not to accept a plea.

New York is so far outside the mainstream that it is currently one of the four States with the most restrictive criminal discovery rules – alongside Louisiana, South Carolina, and Wyoming. All States comparable to New York have long used broad and early discovery (such as New Jersey, Massachusetts, and 35 others). This means that they turn over critical information like police reports and witness statement early on in the case, without requiring defendants to make motions to the court to obtain them.

States such as Texas (2014), North Carolina (2004), and Ohio (2010) have enacted open discovery statutes in recent years, because they recognize it is essential for both fairness and efficiency. Tellingly, no State that has enacted more open discovery rules during the past 40 years has later gone back to impose restrictive ones. These are well-tested, mainstream reforms that work.

The Legal Aid Society’s leadership role on this pivotal issue in New York’s criminal justice system crystallized in 2009, when we issued a report entitled Criminal Discovery Reform in New York: A Proposal to Repeal C.P.L. Article 240 and to Enact a New C.P.L. Article 245. Our report advocated that New York’s outmoded and unfair criminal discovery rules in Criminal Procedure Law Article 240 should be replaced by a modern discovery statute. We suggested the full statutory language for a new C.P.L. "Article 245." Our 150-page report is available here.

Building upon our 2009 report, Legal Aid was also a key voice in the deliberations on discovery reform conducted by the New York State Bar Association’s Task Force on Criminal Discovery from 2013 to 2015. This statewide body composed of prominent judges, prosecutors, defense lawyers, and academics worked for two years to make compromises and address all stakeholders’ objections to ensure that its proposed criminal discovery reforms will work. The Task Force reviewed and adopted many of Legal Aid’s earlier proposals, and its final product is a breakthrough. In 2015, the NYSBA’s Executive Committee and House of Delegates both unanimously adopted the Task Force’s proposal. The NYSBA Task Force’s 150-page report is available here; and the NYSBA reform bill is available here and here (version with explanatory commentaries). A list of “FAQs” about criminal discovery reform and the NYSBA bill is available here.

For the first time in 40 years, a broad coalition – including Legal Aid and numerous allied organizations and citizens’ groups – has now united behind a single discovery reform proposal, the NYSBA bill. Our “Repeal the Blindfold Law” campaign has received extensive press coverage – which can be sampled here. Some of our educational materials about criminal discovery reform in New York can be found here. The New York City Council’s resolution in support of criminal discovery reform is available here.

We now call on New York State’s legislators to pass these vital, decades-overdue reforms. For media inquiries about the “Repeal the Blindfold Law” campaign, please contact Redmond Haskins, Deputy Director of Communications (RHaskins@legal-aid.org).