New York’s Judicial Blindspot

Issue 234

Ann Schneider Mar 30, 2018

A coalition of progressive state legislators and legal organizations is campaigning for legislation to repeal New York State’s “blindfold law”—which allows prosecutors to withhold all evidence, including witness statements, from a criminal defendant until the morning of their trial.

This practice is allowed despite the 1963 Brady vs. Maryland case, in which the U.S. Supreme Court ruled that prosecutors must turn over any “exculpatory” evidence in their possession, such as if there’s evidence their star witness said inconsistent things. The Court, however, did not say when that evidence must be given to the defendant. Nor do prosecutors have any obligation to look for witnesses who may have seen things differently.

A bill introduced last year by Assemblymember Joseph Lentol (D-Brooklyn) would require prosecutors to turn over police reports, witnesses’ names and statements, and grand jury testimony early in a case. It’s been endorsed by the New York Bar Association, the Legal Aid Society and the Innocence Project. The state district attorneys’ association opposes it.

Both Lentol’s bill and the state Senate version, sponsored by Tony Avella (IDC-Queens), have been in committee since the legislative session opened in January.

The bill’s supporters say prosecutors’ ability to withhold evidence skews the system against defendants. As 94 percent of state criminal prosecutions result in a plea deal, they believe it encourages “overcharging,” in which district attorneys accuse suspects of more serious crimes than they can prove in order to intimidate them into pleading guilty to a lesser charge. Of the 234 exonerations in New York State since the Brady case, 38 percent have involved withheld Brady material, according to the National Registry of Exonerations.

The Brooklyn district attorney’s office has modified its practices to include a form of “open discovery,” giving an accused person a chance to assist their lawyer in preparing a defense. But of the roughly 100,000 people arrested in Brooklyn each year, 90 percent cannot afford an attorney.

In the other four boroughs, the defense attorney must make a series of pretrial motions to get the judge to order the prosecution to turn over evidence before trial. The assistant district attorney typically fights advance disclosure, citing the need to protect witnesses from retaliation. This tug-of-war causes lengthy pretrial delays and increases court costs.

It is exceedingly rare for a prosecutor caught cheating to be formally punished. Prosecutors have “absolute immunity,” which shields them from legal liability for their misdeeds. Of 151 New York cases between 2004 and 2008 where an appeals court found prosecutorial misconduct, only three led to public sanction.

For more about the campaign to reform the pre-trial discovery process, see

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Photo credit: Sebastian Pichler. 

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