Kara Sears
New York is one of ten states where prosecutors can withhold evidence until just before a trial. This evidence includes witness names, statements, and other key evidence known as discovery. While some evidence is supposed to be turned over on request, critics argue that the restrictive discovery rules put defendants in a high-stakes dilemma. Defense attorneys can also delay filing motions to suppress evidence until the last moment, which has contributed to increased dismissal rates. Ultimately, the judge presiding over the case will decide if the evidence is admissible at trial.
| Characteristics | Values |
|---|---|
| Can prosecutors withhold evidence until trial? | Yes, New York is one of 10 states where prosecutors can wait until just before the trial to share evidence. |
| Can prosecutors withhold witness names and statements? | Yes, but only until the commencement of the trial. |
| Can the defense withhold evidence? | Yes, but they must provide "reciprocal" discovery within 30 days after the prosecution has served a Certificate of Compliance (COC). |
| Can the defense withhold witness names and statements? | Yes, but only if the witness is being called for the sole purpose of impeaching a prosecution witness. |
| Can the prosecutor withhold information about a witness whose safety might be jeopardized? | Yes, but they must apply for a protective order and follow a complex procedure with tight timelines for hearings. |
| Can the defense file a motion to suppress evidence? | Yes, if the evidence was obtained through an illegal search or if the police questioned a suspect without using the proper procedure. |
| Who decides if the evidence is admissible at trial? | The judge presiding over the case will decide if the evidence is admissible. |
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What You'll Learn
New York prosecutors can withhold evidence until trial
In New York, prosecutors are required to disclose certain information to the defendant, such as a list of all the defendant's misconduct and criminal acts that the prosecution intends to use at trial. They must also share exculpatory evidence, known as "Brady material", that the defence might use at trial. However, prior to 2020, witness information did not need to be turned over to the defence until the commencement of the trial, and this has since changed with the implementation of 245, which requires witness information to be shared long before the trial.
Additionally, under 245, prosecutors can apply for a protective order to withhold information about an individual whose safety might be jeopardized. However, this process is complex and does not guarantee the safety of witnesses.
While New York prosecutors do have some leeway in withholding evidence until trial, defence attorneys can file motions to suppress evidence if it was obtained illegally or if the defendant's rights were violated during the investigation. Ultimately, it is up to the judge presiding over the case to decide if the evidence is admissible at trial.
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Evidence tampering is a crime in New York
In New York, withholding evidence until trial is a strategic advantage that critics call unfair and unnecessary. While it is within the rights of prosecutors to do so, evidence tampering is a crime in the state. Tampering with physical evidence is a class E felony in New York.
Evidence tampering is defined as the crime of knowingly making, devising, or preparing false physical evidence, or producing or offering such evidence at a proceeding knowing it to be false, and intending for this false evidence to be used or introduced in an official proceeding. It also includes the destruction, alteration, or concealment of evidence, as well as the use of intimidation or deception to avoid the production of evidence.
To convict someone of evidence tampering in New York, the prosecution must prove the following elements:
- Intent: Prosecutors must demonstrate that the defendant willfully and purposefully interfered with evidence. Accidental destruction or simply abandoning or throwing away evidence does not prove intent.
- Knowledge: Someone acts knowingly when they are aware that their conduct may lead to a certain result.
Evidence tampering charges often arise in drug cases where defendants are suspected of attempting to destroy or conceal evidence as the police arrive. It is important to note that evidence tampering is an additional charge, and individuals can be convicted of this crime even if they are acquitted of the original charges that led to their arrest.
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Witness anonymity and protection in New York
In New York, prosecutors can wait until just before the trial to disclose evidence, including witness names and statements. This practice has been criticised as unfair and strategically advantageous for the prosecution.
Witnesses in New York can seek legal representation to protect their rights and ensure their voices are heard in the criminal justice system. While an Assistant District Attorney or Assistant United States Attorney works with victims and witnesses, they are not their lawyers. Witnesses may want to consider hiring a criminal lawyer to assist them with the criminal process and address their concerns.
Witness protection and anonymity are available in certain circumstances. For example, the Crown Prosecution Service may consider reporting restrictions and restricting public access to the courtroom to protect a witness. Witness protection is generally directed at those who have provided crucial evidence and are under substantial threat. However, police forces can offer protection to anyone whose safety is believed to be at risk due to the criminal conduct of another person.
Witness anonymity orders can be obtained to ensure that a witness's identity is not disclosed during criminal proceedings. These orders may include withholding the witness's name, allowing them to use a pseudonym, or screening their identity. To obtain a witness anonymity order, several conditions must be met, including protecting the safety of the witness, preventing harm to the public interest, ensuring a fair trial for the defendant, and considering the importance of the witness's testimony.
In New York, motions to suppress evidence can be filed if a search was conducted illegally without a warrant or if a suspect was questioned without an attorney present. The presiding judge ultimately decides whether evidence is admissible at trial.
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The right to counsel in New York
In New York, the right to counsel is a fundamental component of the criminal justice system, ensuring fair legal representation for individuals accused of crimes and protection against abuses of state authority. This right is interpreted more expansively than under the federal Constitution, providing greater safeguards for defendants at earlier stages of criminal proceedings.
New York's right to counsel attaches at three critical stages:
- When a suspect requests an attorney during custody;
- When formal criminal proceedings are initiated with an accusatory instrument; and
- When counsel is retained or appointed.
This right is indelible, meaning it cannot be waived without an attorney present. For instance, in People v. Donovan (1978) and People v. Arthur (1977), it was established that police must stop questioning a suspect once they have retained or been appointed counsel, and any waiver of rights must occur with that attorney present.
New York's right to counsel also applies before formal charges are filed. If an attorney has entered the case, the right to counsel applies even during pre-charge custodial interrogations. This pre-charge right was emphasised in People v. Di’Biasi (1964), where the New York Court of Appeals ruled that a suspect couldn't be interrogated without an attorney present once formal charges were filed. Similarly, in People v. Meyer (1965), the court ruled that defendants must have counsel during arraignment, recognising the potential for procedural disadvantage without legal assistance.
However, the right to counsel in New York has limitations. For instance, in People v. Bing (1990), the court overturned the derivative right established in People v. Bartolomeo (1981), which prohibited police from questioning a represented suspect about unrelated charges. The Bing court deemed this restriction impractical and overly broad, allowing police to question suspects about unrelated matters if no attorney-client relationship exists for those charges. Additionally, the right doesn't extend to non-critical stages of criminal proceedings or administrative procedures without substantive legal issues.
New York City's Right to Counsel (RTC) law, implemented in 2017, also provides tenants under 200% of the federal poverty line with legal representation in housing court. This law has successfully reduced evictions and the imbalance of power between landlords and tenants. During the pandemic, legal services were offered to all tenants facing eviction, regardless of income.
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Search warrants and motions to suppress in New York
Search warrants are legal documents signed by a judge that authorise the police to conduct a search. In New York, the Fourth Amendment exclusionary rule applies to search and seizure issues. This means that a person has a right to be free of unreasonable searches and seizures.
To obtain a search warrant, the police must provide a sworn statement or affidavit with probable cause for the search. The warrant must describe in detail the places to be searched and the property to be seized. This is to prevent a general, exploratory search.
If the police do not have a search warrant, the burden is on the prosecutor to show that the search fell within one of the exceptions to the requirement. Some exceptions include exigent circumstances, consent, and searches incident to arrest.
If evidence is obtained through an unlawful search, a defendant can file a motion to suppress the evidence before the trial. This is called a Mapp motion in New York. A successful Mapp motion can change the course of the trial, as the prosecution may have to drop the charges or seek a plea deal.
In New York, motions to suppress can be made for physical evidence, statements by the defendant, or identification of the defendant as the perpetrator. Suppression motions can be powerful tools, as they can result in the exclusion of critical evidence and even lead to the dismissal of charges. However, they are rarely successful, with less than 1% of motions to suppress evidence being granted in one study.
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Frequently asked questions
Yes, New York is one of 10 states where prosecutors can withhold evidence until just before the trial.
Evidence includes any object, document, or record that is useful to a criminal investigation and trial. This includes witness names and statements, video footage, transcripts of testimony, and results of physical and mental exams.
Critics argue that the law is unfair and unnecessary. They claim that prosecutors may intentionally withhold evidence to push defendants to accept plea deals. The law also puts defendants in a dilemma—they must either plead guilty without seeing all the evidence or risk a trial that could result in a longer prison sentence.
If evidence is obtained through an illegal search or if a suspect is questioned without an attorney present, a motion to suppress the evidence can be filed. The judge presiding over the case will ultimately decide if the evidence is admissible at trial.
