At the beginning of January, Governor Andrew Cuomo announced that he would push for changes to be made to New York’s “blindfold law.” This law has been criticized for giving too much of an advantage to prosecuting attorneys in criminal trials. Bills have been proposed to reform the blindfold law at least 12 times in the last 25 years.
Gov. Cuomo announced his intention to change the law in his State of the State address on January 3, 2018, but he did not go into the specifics of the plan. However, a press release put out in the wake of the speech describes reform of the blindfold law as part of a five-pronged plan for New York judicial reform.
What is the Blindfold Law?
The short story is that the blindfold law gives prosecutors the right to hold back evidence against a defendant until just before the trial begins. This means that in New York prosecutors can wait until the trial to reveal the names of witnesses, the contents of their statements, grand jury testimony, and other evidence (called “discovery”).
This law gives a serious advantage to the prosecution. With witness names and testimonies hidden, the defendants do not know the strength of the case against them until the trial has begun. Considering that 98 percent of New York felony convictions come through a guilty plea instead of a trial, this is a serious problem. Many defendants are pleading guilty before trial, never knowing if the case against them was strong enough to prove them guilty.
Gov. Cuomo’s plan to expand the discovery process will require both prosecution and defense attorneys to share information in increments. Information such as intended exhibits, expert opinion evidence, witnesses’ criminal history information, and search warrant information will be given to the defense. This reform will give attorneys the information they need to represent their clients as well as they can.
What are Attorneys Saying About the Proposed Changes?
Prosecutors and those who oppose the Governor’s changes argue that the changes to the discovery process will put witnesses at risk of intimidation, or worse. They say that one of the main purposes of the restrictions on the discovery process is to protect witnesses from having their identities revealed before the beginning of a trial.
Defense attorneys—not to mention the defendants themselves—are generally in favor of the changes. The outdated blindfold laws give the prosecution too much of an advantage, allowing them to hold back crucial information that defendants need to be able to make informed decisions.
Only 10 states allow prosecutors to withhold evidence in this way. Beyond that, New York is one of the four states—along with Louisiana, South Carolina, and Wyoming—with the most restrictive discovery laws. There are good reasons why the state has had 12 bills proposing changes to the discovery laws in the last 25 years.
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