“If you see something, say something.”
In post-9/11 New York, commuters, tourists and schoolchildren daily read and heard this motto. Other cities, states and nations picked it up, to encourage those who witness wrong behavior to report it to authorities. It evokes civic duty and responsibility for the well-being of our neighbors. It’s part of the social contract and helps prevent and solve crimes.
No more. New York’s criminal justice “reform” undermines the simple motto that has become central to good order in a big city. With the discovery law effective since Jan. 1, if you see something, you may want to think twice before you say something.
Although there has been much focus on the new law’s bail measures, in the upcoming weeks and months, we will see the impact of the discovery component, and it will be ugly. The measure will hinder law enforcers trying to solve crimes and undermine public confidence in our justice system.
Under the law, prosecutors must give defense counsel the name and contact information of anyone with information relevant to a case within 15 days of arraignment — regardless of whether the person will testify at trial.
Have you ever called 911? Even if you want to report criminal activity without giving your name, the recording of the call and your telephone number will now be handed over to the bad guy. What if your kid sees a violent crime on your block? Your child’s contact information could be handed over to the criminal defendant. Are you a first responder or do you work at a hospital? If you speak with an injured victim or criminal, your contact information will be turned over.
The law allows prosecutors to seek something called a protective order. If a judge grants it, that piece of paper could protect your identifying information, and in theory, orders someone to stay away from you — but only if the judge is convinced that your circumstances warrant protection.
The law assumes that all information must be turned over, and protective orders are the exception, not the rule, requiring the extra hurdle of a request to a judge and a showing that an innocent victim or witness should be protected. There is no guarantee that a judge will grant the order. And how effective is a piece of paper anyway?
So, if you see something, say something. Then we will give your information to the person who did something. Or we might try to protect you; let’s see what the judge says.
Why would anyone say something in this new world of discovery? You would be putting yourself and your family at risk.
Before the new law, only the names and addresses of witnesses who were going to testify had to be disclosed, affording others who come forward the benefit of having their names and identifying information protected. Yes, the accused have the right to confront their accusers. That right should be upheld at trial, in a courtroom, not at a home or place of work months before trial.
Witness intimidation is real. It threatens the ability of law enforcement to investigate crime and prevents prosecutors from obtaining witness testimony. The new discovery law will make witness intimidation easier and will likely have the worst impact on communities plagued by violent crime and gang activity.
Witness intimidation is the primary reason that witnesses recant statements, and, in practice, it is carried out against society’s most vulnerable — children, the elderly, immigrants, victims of domestic violence.
Rather than protecting our most vulnerable, the law requires prosecutors to hand over contact information very soon after a crime has been committed. The penalty for not disclosing information or for disclosing it too late could be preclusion of evidence or dismissal of a case, without regard to guilt or innocence.
Because the law is so new, its effects are just starting to be seen across the state. Stay tuned, New York, while we see what “something” is next.
Orange County District Attorney David M. Hoovler is president of the District Attorneys Association of the State of New York.