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Niagara County Courthouse in Lockport

Niagara County District Attorney Caroline Wojtaszek said New York's soon-to-be implemented discovery reforms are the most transformative legal changes she has seen in her 23 years in law enforcement.  

As a result of changes to the law affecting discovery, the process through which prosecutors share information with the defendant and their counsel, 21 different evidentiary categories are now required to be submitted to defense counsel within 15 days of arraignment.

Wojtaszek said some of the evidentiary items include defendant's statements, co-defendants' statements, grand jury transcripts, civilian witness names and adequate contact information, tapes and electronic recordings, photographs and forensic evidence analysis. 

"It's a lot of information to gather in a short period of time," Wojtaszek said. 

Law enforcement is required to submit all of the necessary items electronically to the district attorney's office, which will compile it all together and send an email link for the defense counsel to download all of the material. 

Supporters of the discovery reforms argue that it makes the justice system more fair for defendants.

In a letter to Syracuse.com, New York State Bar Association President Henry Greenburg argues that the discovery reform supports the rule of law. 

"As a matter of fundamental fairness, persons charged with criminal conduct should know the evidence against them. However, defendants in criminal cases often receive limited information prior to trial. The information is often provided so late in the process that it is not possible to properly investigate it, secure additional evidence that would support a defendant’s innocence or allow defendants to adequately weigh a guilty plea," Greenburg wrote.

"Under the discovery reform law that will be effective in January, prosecutors must turn over evidence to defense attorneys within 15 days of arraignment. This change will make the system fairer for defendants and bring New York in line with other states and jurisdictions across the country." 

Come Wednesday, the new discovery reform will apply to all existing cases in the courts as well. Wojtaszek said her office handles about 5,000 cases a year. 

Wojtaszek said, before the reforms, only some information would have to be turned over within 45 days of arraignments, and some information might have been kept until the eve of the trial. She added that her office has been an "open file discovery office," meaning that within the 45 days they would turn over all evidence in their files. 

"There are things that we didn't historically get unless it was pertinent to the case, like we wouldn't necessarily get a 911 call if it didn't really have any evidentiary value," she said. "We didn't get all the body cam video, unless we heard from law enforcement that there was something really relevant on it that would help us."  

Wojtaszek said prosecutors will be seeking protective orders when they believe there is witness or victim safety concerns. She added that, in cases for crimes like shootings, homicides, sex abuse and domestic violence, they will be seeking protective orders. 

The law already has built in protections for confidential informants in drugs cases, Wojtaszek noted. 

When asked if she is worried about the law having a potential chilling effect, Wojtaszek quickly replied "absolutely."

"The adequate contact information that is now required under the new law is probably one of my bigger concerns. It's one thing to be able to read a statement from somebody and know the content of it. It's another thing to ... turn over contact information to defense. That can be used not just from the attorney, but by a defendant. So that's concerning," she said. 

As a result of the changes, Wojtaszek has had to add three new support staff to her team, including a dedicated information technology position. She added that no funding was given from the state to help with this. 

"We have gone through a complete overhaul in the last five months. When I started as DA, we were working towards a five-year plan to basically digitalize the office. That became a five-month plan," she said. 

Defense counsel is required to look at the material and explain to the court they have done so. 

Wojtaszek noted that she does not "have a conceptual problem" with turning over evidence to the defense, but she believes the need for victim and witness safety needs to have been better balanced. She added that 15 days "is an arbitrary" number. 

"You could have made it 30 days. You could have made it 45 days and just made us turn over everything, and it wouldn't have caused chaos," she said.

  

BAIL REFORM 

Changes also go into effect for the bail system in New York starting this week.   

Starting Wednesday, in cases involving most non-violent felonies and misdemeanors, the offenders will be charged and receive appearance tickets.

Certain qualifying offenses are eligible for bail, like violent felonies and domestic violence misdemeanors.

Advocates for the reforms, argued that bail created a system of justice that unfairly discriminated poor defendants over wealth defendants.

"The wealthy are far more likely than the poor to meet monetary bail requirements and avoid incarceration. Moreover, requiring the poor to post bail or face jail leads to devastating human costs. Jailed defendants unable to make bail spend unnecessarily long periods behind bars, cutting them off from their families and potentially leading to the loss of jobs and homes," Greenburg wrote.

"In minor criminal cases, bail is almost always inappropriate. It is imposed on those who have been charged with criminal wrongdoing, but whose cases have not been adjudicated. The presumption of innocence is an essential element of the rule of law. Simply being accused of committing a crime is not an indication of guilt or a reason to be imprisoned pending trial."

With the current legal system, prosecutors could argue the likelihood of conviction for the defendant and the defendants' family ties and length of residence in the community but starting next month they will no longer have those arguments. 

"We don't have kind of some of the tools in our toolbox as prosecutors to argue for bail ... The absolute exclusive reason to consider bail is just that they show up in court ... They've eliminated the defendants family ties and length of residence in the community. We can't consider that anymore. The weight of the evidence. That's gone," Wojtaszek said.

The only things that can now be considered by a judge are whether the defendant has willingly failed to appear, violated an order of protection in the past or violated a number of sections that can involve witness intimidation or witness tampering or committed another felony while at liberty. 

Wojtaszek said for a lot of the minor offense and non violent felonies she doesn't have a a problem with eliminating bail. As someone who has prosecuted domestic violence cases, she has a big concern over the possibility of a defendant in a case hurting the person who reported them, while the defendant is not held in jail. 

"If someone were to commit an assault third, which you harm someone pretty good for an assault third. They will be held over, so they are subject to an appearance ticket ... the judge cannot set bail. All they can do is issue an order of protection," Wojtaszek said.

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