The new law applies to every aspect of law criminal law in New York State. It is a game changing law that was passed by New York State last year and put into effect on January 1. It allows for New York State to be on the forefront of fairness and reasonableness, as it relates to people accused of a crime. For example, previously in New York State, the district attorney’s offices and the courts could hide grand jury testimony from the defendant until the eve of trial. Now, the district attorney’s office has to turn over that grand jury material to the defense within 15 days of arraignment on the offense.
If you get indicted in New York State, you’re now entitled to know how the charges are being drawn up by the prosecutor’s office. We’re entitled to know, as defense counsel, exactly who the witnesses are going to be against us. The old law allowed the prosecutor to wheel in witnesses while the trial was going on without any idea about who these people were in relation to the investigation. Now, the prosecutor has to certify that they have completed discovery, as it relates to the case in a timely manner. They cannot announce readiness on any case unless they certify that the case is ready for trial because every discovery compliance detail has been met. It is called a certificate of compliance and that has to be done within 15 days of arraignment.
How Do The New Laws Help You Defend Your Criminal Clients In New York?
When we have all of the witnesses against us put down on a sheet of paper in a timely manner, we can then investigate exactly who that person is and what that person knows. I have a case now where the prosecutor certified the case early. In the certification packet was a witness I’ve been trying to locate for two years. We now have a full name, birthdate, cell phone, and address. I was able to contact that witness and it could change the context of the whole case. This is a great example of how this law works for everyone. Before this new law, we would get that information at trial, or just arrive to trial.
This law changes how defense counsel prepares for a case. We can prepare early and gather information way before we used to before the new law. The law even says that if the district attorney’s office gives us a plea bargain, they cannot take that plea bargain away from us until they have given us the discovery packet and certified the case. People will no longer look at it as a bunch of attorneys and a judge hiding things from them; everything is out in the open. Every decision we make will be made while knowing what the prosecutor intends to use as evidence, instead of guessing what the prosecutor has.
How Was The Old Way Even Legal Or Constitutional?
States like Louisiana, Florida, Georgia, and Mississippi, had open file discovery years before New York did. Finally, the unfairness of the system was brought to light. It is only fair to let the defense attorney know exactly what the charges are, who is bringing the charges, and how they’re bringing them. We’ve now made the system much fairer than it was even two months ago. The fairness aspect goes a long way toward saving time, saving money, and saving people’s lives. Some of these are homicide cases where a family lost a loved one and someone is being prosecuted. Everyone is looking for justice and prosecutors were able to hold material back until the last minute to thwart the justice effort. The new law will address those things and we’re really happy it has been passed.
A big fear in New York is that there is too much information going out from the district attorney’s office to defense counsel and it’s being abused by defense counsel. With the new law came a provision that allows for the district attorney’s office to request from the court a protection order for a witness who feels that they might be in jeopardy, if their information becomes available to the defense attorney. It is an aspect of the law that allows for witnesses to come forward and know that they’re being protected. Most people who are talking about the new law are not talking about this safety provision, so the backlash to the new law is misleading people.
There are provisions in place where the district attorney’s office can ask a judge to withhold information. We, as defense attorneys, can agree to get information and not share it with anyone, but we know what is going on with the case and we can advise the client going forward. The new law allows for the free flow of information, not only from the prosecutor to the defense attorney but from witnesses to the prosecution. All parties are now protected. There is a push in New York to change the law, even though it has been in effect for only six weeks. I want there to be as much legitimate information out there about this law as possible, so that there is not a knee jerk reaction to have another vote.
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