Should New York revamp the Discovery Statute- Part 2

…So those are the arguments made by defense attorneys and prosecutors on this topic. Then there’s the argument made by the journalist and the non-lawyer. That “open-file” discovery will force prosecutors to turn over exculpatory information to the defense, which will lead to fewer false convictions. This simply won’t happen because most of the time, the exculpatory information is not documented in any report or writing. Exculpatory information, or Brady material as it is known, is just that, information. More often than not, Brady material manifests itself in oral statements made to the prosecutor or to the police. Something like, “I lied about seeing the shooter” or “I am not sure that person is the killer anymore, I was drunker than I previously admitted when I saw the shooting.” That statement is then never recorded or written down because it’s so damning. Therefore, it’s suppression wouldn’t be cured by simply revamping the statute. The only thing that can cure these ills is better training for the prosecutor to spot the potentially exculpatory information, creating an environment within the DA’s Office where prosecutors are encouraged to “do the right thing,” and by increasing sanctions against the individual prosecutors if they do not comply with the Constitutional oath they took.

As a mentioned before. I think open-file discovery should be practiced throughout the country. If a defendant sees the evidence against him, he can make an informed decision about pleading guilty. This will resolve more cases quicker. Any fears that prosecutors have about witness intimidation can be alleviated by having the prosecutor apply for an ex parte protective order in which the prosecutor demonstrates to a judge her fears regarding turning over the evidence. If there actually is evidence that the defendant is dangerous and does have the ability to intimidate or harm the witness, then the judge can suppress the discovery of the evidence until trial. Moreover, there simply is no reason to not turn over all the evidence when all the witnesses are police witnesses.

I think this is the compromise that defense attorneys and prosecutors should reach.