Queens County Bar Association
Martindale Hubbell - Distinguished 2023

How Important Is Discovery in a DWI or Criminal Case?

Discovery can be very important because discovery is supposed to give you the information about the evidence that’s going to be used against the client. If you don’t know that in advance, it’s very difficult to refute evidence that you have no idea is coming beforehand. Discovery is supposed to help you prepare for trial and is the most important part of the preparation for a trial. It’s also extremely important in trying to determine whether you have a strong enough case so that you even should be going to trial or whether you should be trying to get the best disposition possible without a trial.

What Type Of Evidence Is Generally Available In Discovery In a Criminal Case?

Unfortunately, in New York criminal cases, the New York Criminal Procedure Law really is very restrictive about what the district attorney has to provide to you. It’s generally far less than is available in most jurisdictions where the DA has to pretty much tell you everything about his case. In New York, there are certain items that they’re required to give you, generally that would consist of specific things like tape-recordings or videos that they may have, scientific reports and little else. You’re not allowed to question possible witnesses that the people are going to call at trial.

Are Discovery Rules The Same For Misdemeanor And Felony Cases?

They are pretty much the same but the most important difference is that in felony cases, a long time will generally go by before you get whatever discovery that you’re eventually entitled to. While almost all cases begin in the (lower)criminal court, felony cases eventually wind up going into the grand jury and then into the Supreme Court, the higher court. Unfortunately, you do not get any discovery until after a felony case has reached the Supreme Court after indictment. Of course, by that time, things are well along and you’re at a tremendous disadvantage.

When Does Discovery Typically Become Available To The Defense?

After a defendant is arraigned in Supreme Court following a felony indictment or in Criminal Court after a misdemeanor information is filed in Criminal Court, the defendant’s attorney will make a Demand for Discovery setting forth what he is requesting. If the prosecutor refuses or does not respond, the defendant can make a motion to the court to compel discovery. In the real world of Queens Criminal and Supreme Court practice, the courts rarely require the prosecutor to turn over more than the minimal discovery they routinely supply. More often than not, the prosecutors take far longer than legally required to turn over even minimal discovery and the courts rarely enforce statutory time limits.

Does The Defendant Have To Enter A Plea Of Guilty Or Not Guilty Prior To Getting Discovery?

Absolutely yes. If the case has not reached the point where a defendant enters a plea, he’s not entitled to even ask for the discovery. This can be a severe problem because you may be negotiating with the district attorney as to a possible disposition but at that point, you’re not entitled to know what specific evidence the district attorney has to offer.

Queen’s criminal defense lawyers face a unique problem relating to discovery. Queens prosecutors, unlike virtually any other prosecutors, have a written plea policy that states they will not engage in plea bargaining once a defendant is indicted. No reduction of the charges will be permitted for any reason after indictment. Since no discovery is provided before indictment, a Queen’s defense attorney must negotiate any plea reduction with virtually no information to determine the strength of the prosecutor’s case. The defense lawyer is entitled to nothing other than what the prosecutor chooses to tell or give him. At the same time, Federal courts have held that it is ineffective assistance of counsel for a defense lawyer to make a recommendation regarding a plea disposition without full knowledge of the facts of the case.

Are Discovery Rules Really Intended To Help Defendants At Trial?

Theoretically, that’s exactly what they are supposed to do. Theoretically, it’s supposed to give the defendant the opportunity to know what the evidence is going to be against him so that he can properly prepare. Unfortunately, in New York State, every time a bill is brought in the legislature trying to get real discovery that really would be helpful, the District Attorney’s Association opposes it and we are always stuck with the same old extremely limited discovery rules.

What Is The Discovery Process In a Criminal Case In New York?

After the defendant is either indicted or an information is filed, the defendant is then arraigned on the charges. At that point, the defendant is entitled to make what’s called a Discovery Demand, in which he serves a notice on the people demanding that the people produce the requested discovery. If the people do not do it within a specified time period, the defendant can then move the court in a formal motion to have the court force the district attorney to provide the discovery. If they don’t, they can be restricted from producing certain evidence if they haven’t provided the requested discovery. Unfortunately, the courts are very reluctant to push the district attorneys to provide the evidence that really would be helpful in trying a criminal case.

For more information on Discovery In A DWI Or Criminal Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 793-5700 today.

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