Op-Ed: New York’s 'open discovery' laws ignore witness safety, rights

Posted Dec 20, 2019 by Paul Wallis
In New York, as of 1 January 2020, victims and witnesses must by law supply their contact details and evidence to the accused’s lawyers within 2 weeks. This requirement is called “open discovery”, and it’s very unpopular with some people.
The Statue of Liberty in New York has been a welcoming symbol to new immigrants for more than a cent...
The Statue of Liberty in New York has been a welcoming symbol to new immigrants for more than a century, even as US history has been pockmarked with immigration backlashes
The required information seems to include anything and everything, including forensic toxicology reports, DNA results, etc. Nobody seems too sure exactly how these deadlines are to be met. Prosecutors aren’t happy, and the general impression is that the NY legal system can’t deliver with its existing budget and infrastructure.
“Open discovery” is strongly supported by a wide range of legal defender groups calling for an even wider range of reforms across the board. Whatever the issues, however, the overall picture of law reform in NY is looking more like an accountancy issue than law.
The reforms are likely to be disruptive. The venerable but well-understood processes of criminal law are getting a large, if somewhat strange, but vast, makeover. vexed issues of the high costs of detention and feeding inmates of prisons are also being reformed, by simply not detaining people under various conditions. Parole terms are also under scrutiny.
Great reportage, totally not, guys
Before we start This is a long read, and it’s not pleasant reading. Get some antacids, or perhaps prayer beads, before reading. There are so many issues with open discovery, that this article is barely a summary.
I’m not at all impressed with available sources covering open discovery. Coverage seems lackadaisical at best, selective and truly pig-ignorant at worst. The issue is severely polarized, even by modern standards, which is modern American for a total lack of objectivity and balance.
Reportage of the open discovery reform is pretty generalized, and not particularly specific about anything. It just refers to the overall requirement to provide witness and victim information to defenders. People in the legal system, however, have been crying out to be heard. Victim’s lawyers are particularly angry about open discovery, apparently with a lot of reasons. It's so divisive that even Republicants and Democrats are on the same page. Local NY reps Tom Reed (R-NY) and Anthony Brindisi (D--NY) aren’t too happy, either.
New York media is also ambivalent at best on the subject of the new reforms. The New York Times Editorial Board is very pro the large range of reforms, reducing incarceration, etc. but I couldn’t find anything on the subject of open discovery. Perhaps they don’t think it’s an issue, or that open discovery is within the ballpark as due process as outlined below.
This, however, is a possible classic case in terms of turning giving evidence into a risk management exercise. I’m astonished that this reform, which goes all the way to basic Constitutional rights, hasn’t been in the headlines since it was proposed. US media should be all over this reform, and it isn’t.
In fairness to a truly lousy idea – The due process issues
There is some method and basic law in the apparent madness of open discovery. Under the United States constitution, people are entitled to due process. That process may include getting information from the prosecutors on almost any subject under existing law.
The court, also, may require information of this type. This means the identity of witnesses and people who ring 911 has to be known to the court, anyway.
Defenders also do need to be able to cross-examine effectively. Some cases are incredibly complex, and the credibility of witnesses and their statements is critical. So “this is the witness, and this is what they’re saying” is part and parcel of basic legal processes. The defender groups are well within the ballpark on these issues.
Nor can it be said that witnesses are particularly safe under the existing system. Giving evidence can be dangerous, in fact fatal, and that’s if you’re lucky. The extreme level of risk to some witnesses cannot be overstated.
This is nuts - Putting people at serious risk
Open discovery, however, is on face value the extreme, exact antithesis of “due process” for witnesses. The process simply does not allow any options based on the safety of witnesses or any other considerations. It’s a self-defeating process. If a witness dies or runs away to avoid risk, there can be no prosecution case against the accused without evidence. The court simply can’t accept such vast gaps in evidence.
Victims of crime are thus unprotected. A person doing their civic duty and reporting a crime may be put at serious risk. Talk about demotivation.
It’s naïve to an impossible degree to believe that a witness could possibly be safe. Does anyone seriously think that New York’s sometimes abrasive criminals will respect due process? If someone can avoid a life sentence with a few bullets in a witness, does telling the guy with the gun where to find the witnesses help or hinder justice?
In a country full of so many happy organized crime organizations and fun-loving heavily armed criminal gangs, the requirement to provide contact information is basically nuts. Telling criminals who’s accusing them and where to find them is nothing short of deranged.
The fact that handing over the contact information may be suicide for witnesses and people reporting crimes, however, seems not to be much of an issue.
This is effectively giving information to accused rapists, pedophiles, gangs, drug cartels, murderers, etc. These people are not famous for their respect for courts, laws, or anything else.
The history of witness risks in the US legal system is already bad enough
If a history of corrupt and inept legal practices in the Federal/State US judiciary were compiled, it would make NASA’s databases look like Post-It notes. Historically, particularly over the last century, witness tampering, intimidation, and many actual murders of witnesses are very well documented.
What about Witness Protection and witness rights?
Witnesses seem to be the only people with no rights at all in open discovery. The witness protection idea was introduced to deal with these risks. It’s severely undermined and totally counterproductive if open discovery requires contact information. People rely on witness protection to keep them safe. That’s because they definitely wouldn’t be safe if they were easy to find. The open discovery law could effectively mean that witness protection is no longer an option.
What about FBI and law enforcement witnesses?
Serving law enforcement officers could be in much the same situation. Does open discovery require these people to provide contact information?
What about locating witnesses?
This isn’t the 19th century any more. A phone number, a picture, and general information can make anyone a lot easier to find. Being required by law to provide that level of information to criminals is hardly likely to help.
Ideology? What ideology?
The theory of due process is one of those things which usually comes with a choir and orchestra. People get dewy-eyed about it as a pillar of democracy and justice. On an ideological basis, it’s ultra-schmaltz, and like most ideologies, totally unrealistic and barely workable, most of the time.
The practice of due process, of course, is a vast network of tacky offices, sweaty courts, overworked people, highly stressed people, etc. To call this mess an ideal is like saying you can meet a lot of people in a morgue and starting a multi-billion dollar dating agency on that basis.
Some people do have high ideals about the law. Just coincidentally, they’re usually the people who don’t know how to put their own, or any other, ideals into practice.
Theory drives ideals. Practice drives solutions, and it’s about time these two factors were on speaking terms. They should at least be introduced to each other. Open discovery makes it sound like they’ve never even heard of each other.
Open discovery is simply not good enough
Open discovery is a stunningly godawful idea. It’s hard to believe that this idea could be seriously considered, let alone made into state law. The US justice system has existed for centuries without it. The level of risk to victims and witnesses is entirely outside any rational interpretation of due process. It penalizes victims and witnesses. It removes any safety measures, therefore it’s instantly negative to evidence requirements. It’s utterly unrealistic in terms of simply providing hard evidence, too. Open discovery is telling people it's not safe to testify.
Take this thing back to the workshop, and add some meaningful, workable caveats. Some people may not survive to 2 January 2020, if you don’t. Nor may the NY legal system, which could be in breach of Constitutional requirements.
What is the point of enacting a law with so many obvious negative factors, in the face of actual justice? Victims aren’t criminals by definition. Nor are witnesses. Yet this law sentences them to any level of risk, simply as part of a process which nobody has even needed for over 300 years?