NY Judge Orders Early Disclosure by Prosecutors

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In a move to make criminal trials fairer, New York State’s top judge has required judges to order prosecutors to search their files and disclose all evidence favorable to the defense at least 30 days before major trials, the New York Times reports. Chief Judge Janet DiFiore ordered the state judiciary to prompt prosecutors to obey their obligations both to seek and speedily hand over exculpatory evidence. The order, said to be a national first, will give judges the power to level contempt charges against prosecutors who withhold such evidence, a key component in wrongful convictions. Under the 1963 Supreme Court case Brady v. Maryland, prosecutors are obligated to provide their adversaries with any evidence that could be construed as being favorable to the accused. Known as Brady material, the evidence could include police reports that cast doubt on a defendant’s guilt or witness statements indicating that someone else may have committed the crime.

Though Brady material is supposed to be given to the defense as soon as prosecutors obtain it, the New York State Bar Association has said that withholding it — willfully or not — was among the leading causes of wrongful convictions. Judge DiFiore’s rule, effective January 1, puts the onus on the prosecutors to comb their records for Brady material and places them on notice that they could face punishment for not disclosing it. The measure gives defense lawyers a novel form of leverage, allowing them to request that judges make sure that evidence is released in a timely fashion, instead of having to complain after the fact that the prosecution was slow to show its hand.

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