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How New York’s Repeal of the “Blindfold Law” Affects E-Discovery

Created on January 31, 2020

Content Manager at Exterro

This month, New York’s e-discovery rules regarding criminal proceedings have taken on a fresh face. Considered by some to be among the most restrictive states in the nation when considering the openness of evidence in a trial, New York now joins the majority of other states in saying that prosecutors can no longer hold evidence until just before a trial. The new rules mandate that prosecutors must submit all evidence and testimony at the earliest stages of the case, and if a defendant is offered a plea deal, the information must be shared at least three days ahead of any plea deadline.

“Electronic information is now a common feature in criminal investigations and proceedings,” said Ronald Hedges, a retired U.S. Magistrate Judge for the District of New Jersey. “That information can be derived from a number of sources and can raise questions of constitutional dimension. It can also present defendants with voluminous and varied information.”

The new law says that information must be turned over within 15 days of an arraignment, and includes audio- and video-based evidence. In some ways, the law places a greater emphasis on early case assessment (ECA) due in part to the accelerated 15-day timeline—which in some cases will almost certainly require adoption of Smart ECA and other AI-based solutions by legal teams to help sift through potentially responsive data more quickly. According to Exterro’s recently-released 2020 Judges Survey, adopting Smart ECA technology was the top preferred legal-tech recommendation from the federal judiciary.

Formerly, New York was one of a handful of states where prosecutors could wait until just before a trial to disclose witness names and testimony, along with other evidence. The law was colloquially coined the “blindfold” law because attorneys would often delay or ignore requests from the opposing side for information against the defendant, placing that individual in a tough spot: Go to trial without knowing all the evidence against you, or plead guilty.

The “blindfold” would often become tighter during felony cases, as a person facing a felony charge might not even know who their accuser is until the day of the trial. The lack of availability of all evidence meant that the defendant could risk a prison sentence that could be longer than what’s offered in a potential plea deal.

“These amendments are intended to ‘level the playing field’ in some measure for the benefit of all the actors in criminal matters, prosecutors who need to assemble information, defense counsel who must review information, and judges who must resolve disputes arising out of the creation, collection, review, and intended use of information,” said Hedges.

The new law, called the Discovery for Justice Reform Act, repeals Criminal Procedure Law Article 240 in its entirety and replaces it with Article 245, which is a new section of the law.

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