New York City Criminal Court Information

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Information about the New York City Criminal Court System including New York City Criminal Defense Lawyers prepared by New York City Criminal Attorney Don Murray.

Discovery in Criminal Cases in New York State

By Don Murray, Esq.

A common question from those accused of crimes in New York City is "Where is my paperwork" and it certainly is a legitimate one. In the investigation of crimes in New York the police complete numerous forms that relate to a case. Many of these forms contain information crucial to an understanding of the case against a person accused of a crime. In addition, witnesses testify before the Grand Jury in many cases, and their testimony is of vital interest, naturally, to anyone who has been accused of wrongdoing by these witnesses.

The natural assumption of most people who are unconnected to the legal world is that of course a person accused of a crime and facing prison would be entitled to know what people have said about him and would be entitled to know what is the nature of the evidence against him. Indeed most people assume that such is the case along with the generally accepted principle that "defendants have all the rights".

And anyone who has ever been involved in a civil lawsuit has this notion reconfirmed because of the incredible level of discovery that takes place in civil lawsuits over money. In civil lawsuits over money, the parties are entitled to virtually every form of discovery imaginable, and well in advance of trial. Parties in civil lawsuits over money are entitled to take depositions of all witnesses and ask them as many questions as they like without interference so that the nature of their testimony is known well in advance of making the decision of whether or not to go to trial. Parties in civil lawsuits over money are entitled to discovery of all reports, documents, and other papers, without question, well in advance of a trial. Parties in civil lawsuits over money are entitled even to request that opposing parties make admissions as to specific facts or respond to detailed written questions well before trial.

All of this discovery is available to you in New York, just as long as your lawsuit involves a dispute over MONEY.

On the other hand, in New York State, if the stakes are not MONEY, but instead the FREEDOM OF A HUMAN BEING, the story is not only different, but APPALLINGLY WORSE.

One might reasonably conclude that our society values freedom more than money, but that theory is certainly not supported by New York's rules about discovery in criminal cases.

In criminal cases in New York, it is considered acceptable and legal to withhold from a defendant most of the most critical and relevant police reports, prior testimony, and other evidence until the very moment of trial (and sometimes literally in the middle of trial).

A felony trial of mine, for example, was a complex and bizarre Kidnapping, Robbery, and Burglary case in which my client was facing a minimum of 5 and a maximum (far more likely if convicted) of 25 years in prison. Despite what amounted to repeated begging for some of the discovery before trial, I did not receive anything of significance until the morning of the day I had to begin selecting a jury. On the morning of the day I was expected to begin selecting a jury, I received from the Assistant District Attorney a stack of paperwork that included about 50 pages of police reports and about 100 pages or more of testimony from a variety of witnesses who testified before the Grand Jury. This was not only considered appropriate by the law, but actually represented, technically, a gift. Believe it or not, because this case was "only" about whether or not a human being would spend the next 20 years in prison instead of something far more important to New York State like MONEY, the materials were presented to me actually slightly EARLIER than the law required.

That meant that I had to absorb 50 pages of police reports, and 100 pages of Grand Jury testimony, and incorporate all of it into some sensible cross-examinations ON THE FLY as the trial progressed. Needless to say I didn't get much sleep during the course of the trial.

Fortunately, we were nevertheless successful at trial despite the handicap permitted and approved of by the State of New York.

Other states do not attempt to cripple the ability of criminally accused to defend themselves. The State of Florida, for example, a state not exactly known for its liberal approach to crime (judging from the frequency of its executions) has an almost civil law like approach to discovery. In Florida, witnesses must be made available for depositions in most cases. Police reports are provided early on in Florida. Florida apparently recognizes what New York seems not to recognize -- that the reasons that justify significant discovery in cases about MONEY ought apply to cases about FREEDOM.

Therefore, if you are charged with a crime in New York and are wondering why your lawyer doesn't have any of the police reports or prior testimony of witnesses against you, don't blame your lawyer. Take it up with the New York State Legislature that apparently places a higher value on money than human freedom.

The Monument to the Discoveries in Lisbon remembers a different sort of discovery.  Even the famous discoverers depicted here wouldn't be able to find the discovery materials in New York criminal cases - mainly because there is no such thing as discovery materials in New York criminal cases.  Perhaps after Ponce De Leon locates the Fountain of Youth, he will find some of the police reports criminal defense lawyers in New York are looking for.

The Monument to the Discoveries in Lisbon remembers a different sort of discovery.  Even the famous discoverers depicted here wouldn't be able to find the discovery materials in New York criminal cases - mainly because there is no such thing as discovery materials in New York criminal cases.  Perhaps after Ponce De Leon locates the Fountain of Youth, he will find some of the police reports criminal defense lawyers in New York are looking for.

New York State permits a discovery method in criminal cases that should in truth be described as ‘Discovery by Trial’. Most significant police reports are routinely first obtained the day of trial, and it is frequently the case that the first time defense lawyers get to speak to witnesses is during cross examination at trial. It is in my view an inexcusable outrage when you consider the broad discovery that is available in lawsuits about money in New York.
— Don Murray

New York Discovery in Criminal Cases - Is Money More Important than Freedom?

A version of this article about discovery in criminal cases in New York City by Don Murray, Esq., was published in the Queens County Bar Association Journal.

Call 718-268-2171 for more information about discovery in New York criminal cases or to schedule your free consultation with a New York criminal defense lawyer from Shalley & Murray.

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