Balancing the Discovery Law
The ultimate test of lawmakers is their ability to revisit laws passed with the best of intentions, and with a bow to the ever-present law of unintended consequences, adjust outcomes that were not meant. Such is the dilemma confronting the state legislature in Albany as it considers amendments to the state’s discovery law.
I have been in and around the criminal justice system in this country and others, and I know full well that when things go bad, they go very bad. Just look at the plethora of wrongful conviction units appearing in prosecutors’ offices across the country. Reform legislation has necessarily proliferated. But as often happens in very complex ecosystems – and criminal justice if nothing else is a complex ecosystem – laws can later prove to be out of balance. The data suggests that New York’s discovery laws have not achieved the balance justice requires, and an adjustment is needed.
In 2019, only 5% of cases (8,282 cases) prosecuted in NYC Criminal Court were dismissed based on speedy trial. By 2024, a full 31% of all prosecuted cases (45,970 cases) were dismissed based on speedy trial. (1)
Felony complaints in NYC that are dismissed because of discovery law violations have risen sharply from 2% in 2019 to 24% in 2024 (2). Likewise, the rate of dismissal for discovery law violations for misdemeanors has risen from 6% in 2019 to 33% in 2024. (3)
Rearrest data in NYC also shows a troubling trend. IN 2019, the number of people arrested a second time within six months of being arrested a first time was 4,500. In 2024, that number rose to 7,000. (4) Although without a closer examination of the underlying data we cannot draw a straight line between the strict timelines of the discovery law and this rise, it is not hard to imagine that with so many misdemeanor cases being dismissed as the reforms kicked in, the rearrest rate would soar.
So why is this happening? Under current law, the speedy trial clock starts when a case begins and does not stop until every piece of information in the case is turned over to the defense, which must happen within a certain number of days. Facing no similar time constraints, the defense can challenge the completeness of the information. If the court rules the prosecution neglected to provide any single piece evidence, the speedy trial clock is restarted—but here’s the kicker: The clock is restarted not at the time of the court ruling about the missing evidence, but instead retroactively from when the prosecution first declared everything had been provided. This is true regardless of how long the defense took to challenge discovery or whether the missing evidence is of consequence. It is hard to see how this serves the administration of justice.
Governor Hochul has offered a wise fix of this statute which balances the critical need to protect defendants while giving the prosecution a reasonable chance to bring a case to trial. Most notably, the Governor is not proposing decoupling the speedy trial clock from the providing of discovery. Instead, the proposal retains that essential feature of the 2020 reforms and others including that defendants automatically get all discovery materials, prosecutors must complete discovery in a certain number of days, and prosecutors must disclose an expanded list of discovery materials. At the same time, the proposal ensures penalties for discovery violations would be proportional to the violations and ensures that there are not penalties and case dismissals based on non-disclosure of material found to be irrelevant by a judge.
It is hard to see how this proposal is anything but reasonable, and the legislature should move to codify these reforms into law.
Richard Aborn, President, Citizens Crime Commission of NYC
Footnotes
- https://ww2.nycourts.gov/discovery-implementation (Discovery Reform Dashboard & Annual Reports – filtered for NYC only)
- https://ww2.nycourts.gov/discovery-implementation
- https://ww2.nycourts.gov/discovery-implementation
- NYC CJA https://www.nycja.org/new-offense
