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Chief Judge Janet DiFiore, of the Court of Appeals and of the State of New York. (Photo: Courtesy of the New York State Unified Court System)

The top judge in New York has issued an order to all criminal judges: Remind prosecutors and defense attorneys of their professional obligations during the course of trials.

That includes compelling prosecutors to produce Brady material before trial, and ensuring defense counsel provides constitutionally effective representation, according to today’s announcement.

The new order does not change existing law, the court says—instead, it is a “preventative” measure.

“The newly adopted measure will go a long way to help prevent and remedy systemic errors that contribute to wrongful convictions, acting as a consistent reminder to prosecutors and defense attorneys of their respective—and critically important—roles in the fair administration of justice,” said Chief Judge Janet DiFiore, of the Court of Appeals and of the State of New York.

The new order “provides a mechanism by which to educate inexperienced prosecutors and defense attorneys—and remind experienced ones—about their constitutional and ethical duties,” the Empire State’s court system said in their Wednesday announcement.

The Brady material would include all exculpatory material that could be favorable to the defendant, either through attacking the credibility of witnesses, reducing the scope or severity of the crime, or otherwise offsetting the prosecutions’ arguments.

The defense attorneys would have to keep the client informed about the case, provide reasonable advice for plea offers, and conduct investigations of case facts and relevant case law, they add.

The directives to both sides of a criminal trial come from recommendations from the New York State Justice Task Force, a permanent group that was intended to address wrongful convictions through reforms.

The Task Force was formed in October 2015, and held four full meetings and six subcommittee meetings among its 21 total voting members. Their report of their findings about attorney misconduct and other legal problems was issued in February 2017.

DiFiore served as the elected Westchester County district attorney before assuming her appointed seat as the top judge in New York last year. She first drew national attention for revisiting the case of Jeffrey Mark Deskovic, a man who served 16 years in prison for a homicide, and who was ultimately exonerated by DNA evidence in 2006.

The New York court order comes a week after the California Supreme Court issued a similar administrative court order allowing the State Bar of California to implement rule changes making all potentially favorable evidence available to the defense in a timely manner.

“Prosecutors must be held to a high standard to ensure public trust in the justice system and to protect defendants and their rights,” said Leah Wilson, the executive director of the State Bar of California.

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