One of the most critical stages in a criminal case is discovery—the process where both sides exchange evidence. Understanding what discovery is, what you’re entitled to receive, and how to use it strategically can fundamentally change the outcome of your case.
In New York, the prosecution has broad legal obligations to disclose evidence to the defense. This page explains discovery rights, what the prosecutor must turn over, timelines for disclosure, and what to do if discovery is withheld.
Discovery is the legal process where the prosecution and defense exchange evidence related to your case. It’s based on the principle that both sides should have access to the facts so that the case can proceed fairly and justice can be served.
In New York criminal cases, the prosecution has significantly broader discovery obligations than the defense. The prosecutor must disclose most evidence in their possession, while the defense can be more selective about what it shares.
Discovery is crucial because:
New York law requires the prosecutor to disclose extensive evidence. Here’s what you’re entitled to receive:
The prosecutor must disclose any statement you made to police, including:
Why this matters: You can review what you actually said versus what police claim you said. Often there are discrepancies, or you can see violations of your Miranda rights or right to counsel.
All police reports related to your case, including:
Why this matters: Police reports may contain errors, contradictions to witness statements, or evidence of investigative shortcuts. They also reveal what the police knew and when they knew it.
Statements from all witnesses who the prosecution intends to use, including:
Why this matters: You can identify witnesses who may have changed their story, have credibility issues, or whose accounts contradict the prosecution’s theory. This is essential for cross-examination at trial.
Prior criminal convictions and arrests of:
Why this matters: Criminal history can be used to attack a witness’s credibility (especially if they were convicted of perjury or crimes of dishonesty). It can also show bias or a pattern of behavior.
All reports from testing and analysis, including:
Why this matters: Lab reports often contain the prosecutor’s key evidence. However, they may have methodological flaws, false positives, or chain of custody breaks that your attorney can challenge. Your attorney can also hire defense experts to critique the prosecution’s analysis.
All recordings related to your case:
Why this matters: Video and audio evidence is often the most reliable evidence because it speaks for itself. It can corroborate or contradict police and witness accounts. Video can be extremely helpful in your defense or extremely damaging—either way, you’re entitled to see it.
Any physical items the prosecution has seized, including:
Why this matters: You need to inspect physical evidence to verify its condition, authenticity, and chain of custody. There may be issues with how it was seized, stored, or tested.
This is the most important category: any evidence that is favorable to you or helps your defense, including:
Why this matters: Under the landmark case Brady v. Maryland, the prosecutor has a constitutional obligation to disclose any evidence that is favorable to you. Failure to disclose Brady material is a serious violation that can result in dismissal of charges, mistrial, or reversal on appeal.
Evidence that can be used to impeach (attack the credibility of) prosecution witnesses:
Why this matters: Impeachment evidence is essential for cross-examination. If a prosecution witness has a history of dishonesty, bias, or has received favorable treatment in exchange for testimony, the jury needs to know about it.
Understanding when discovery must be provided is critical to your defense preparation timeline.
When it must be provided: “As soon as practicable” but no later than 15 days after arraignment (or at such other time as the court directs).
What it includes: Most of the categories listed above (police reports, witness statements, lab reports, records, physical evidence, video/audio).
Important note: “As soon as practicable” means prosecutors should provide discovery much sooner than 15 days. Many prosecutors provide initial discovery at or shortly after your arraignment. Experienced defense attorneys press for early discovery to begin building the defense immediately.
The prosecutor’s obligation doesn’t end after initial discovery. They have a continuing duty to disclose all new evidence as it becomes available, including:
Why this matters: If the prosecution discovers new evidence close to trial or even during trial, they must immediately disclose it. Failure to do so can result in adjournments, mistrial, or sanctions.
The 15-day discovery deadline can be extended by:
Aggressive defense attorneys typically do NOT agree to extensions unless there’s a strategic reason (e.g., to buy time to retain a private investigator or expert). The sooner you get discovery, the sooner you can build your defense.
The discovery obligation is not entirely one-way. The defense also has some disclosure obligations, though they are much more limited than the prosecution’s.
You must disclose to the prosecution:
You are NOT required to disclose:
Important: You should never make voluntary disclosures to the prosecution beyond what the law requires. Your attorney controls what information is shared strategically.
If the prosecutor fails to provide discovery as required by law, you have powerful remedies available.
Your attorney can file a motion requesting the court to compel discovery. This motion can seek:
If discovery is not provided until trial or very close to trial, the court may preclude (bar) the prosecutor from using that evidence. This means the jury will never hear about it, which can result in acquittal.
In extreme cases where discovery violations are serious and prejudicial, the court may declare a mistrial, requiring the case to be tried again or dismissed.
If you’re convicted after a discovery violation, you can appeal on the grounds that the prosecutor violated your discovery rights. Depending on the severity of the violation and whether it affected the verdict, the appellate court may reverse your conviction and order a new trial.
The violation: The prosecutor provides discovery after the 15-day deadline, sometimes just days before trial.
Why it’s problematic: You and your attorney don’t have adequate time to review the evidence, conduct follow-up investigation, file motions, or prepare a defense strategy.
Remedy: Motion for adjournment, preclusion of late evidence, or sanctions.
The violation: The prosecutor provides some discovery but holds back key evidence (police reports, video, lab results).
Why it’s problematic: You don’t have the full picture of the prosecution’s case, and you may miss opportunities to challenge evidence or develop a defense.
Remedy: Motion to compel discovery, and if still withheld, preclusion or suppression.
The violation: The prosecutor fails to disclose evidence favorable to you or evidence that undermines prosecution witness credibility.
Why it’s serious: This is a constitutional violation. Brady material must be disclosed, and failure to do so can result in conviction reversal and new trial.
Remedy: Motion for Brady/Giglio material, preclusion, new trial, or appeal.
Your attorney should thoroughly review all discovery, looking for:
Based on discovery, your attorney may:
If discovery reveals illegal searches, arrests without probable cause, or Miranda violations, your attorney should file suppression motions to exclude that evidence.
Discovery should guide your defense strategy. Identify the prosecution’s weaknesses and develop counter-arguments, alternative explanations, or affirmative defenses based on the evidence.
Use discovery to prepare tough cross-examination questions. Identify prior inconsistent statements, credibility issues, and areas where prosecution witnesses are vulnerable.
Once you understand the prosecution’s evidence, you can negotiate plea deals from a position of knowledge. If their case is weak, you have leverage. If their case is strong, you know what concessions to seek.
In practice, no. The law requires disclosure within a certain number of days after arraignment (unless certain exceptions apply). However, your attorney can request early discovery voluntarily from the prosecutor, and many prosecutors will provide it before or at arraignment as a courtesy.
Yes, absolutely. Video and audio recordings are discoverable and must be provided. If the prosecutor resists providing video, your attorney can file a motion to compel. You’re entitled to see it before trial.
If a witness refuses to speak to police, there is no witness statement for the prosecutor to provide. However, if the witness later testifies for the prosecution, your attorney will have to cross-examine them without the benefit of a prior statement to compare against. You may also subpoena the witness yourself to testify at trial or at a suppression hearing.
Yes. Your attorney can make informal requests for additional evidence, and many prosecutors will provide it voluntarily. If the prosecutor refuses, your attorney can file a motion to compel specific discovery. The key is being specific about what you’re seeking.
If evidence is lost or destroyed, the prosecutor may face sanctions, and in some cases, the court may impose an adverse inference (telling the jury to assume the lost evidence was favorable to you). If critical evidence is destroyed, your attorney should immediately file a motion addressing the loss. This is taken very seriously by courts.
You should be extremely careful. Jailhouse informants are common, and anything you say about your case can be reported to police and used against you. Keep discovery and case strategy confidential and discuss it only with your attorney, your family, and trusted people outside of custody. You and your attorney may also be subject to a “protective order” that prevents what you can see or disclose.
Discovery is one of the most important stages of a criminal case, and having an experienced attorney makes all the difference:
If you’re facing criminal charges and haven’t received full discovery, contact Parker MacKay immediately. The earlier you get complete discovery, the better your defense can be.
Discovery violations are serious, and aggressive defense attorneys catch and challenge them. If you’ve been arrested and need help obtaining, analyzing, or challenging discovery, Parker MacKay will fight for your rights.
Learn more about your criminal defense rights:
This page is for informational purposes only and does not constitute legal advice. Every case is unique. Consult with a qualified New York criminal defense attorney for legal advice on your specific situation.
Whether you are facing criminal charges, a complex business dispute, or need to protect a hard-won result on appeal, we bring the trial-tested experience your case demands.