Like the very messy bail reform bill passed by the state Legislature and signed into law by then-Gov. Andrew Cuomo, the overhaul of the state’s discovery laws, also demands refinement. Gov. Hochul and district attorneys throughout the state have put forward a thoughtful fix that should be adopted.
Bail reform has been tweaked three times since it was enacted in 2019 and gets the most public blame for the rise in many types of crime and recidivism since. But the simultaneous change in how DAs have to provide info to defense lawyers requires a much needed adjustment.
Discovery laws lay out the rules for how and when evidence is shared in the course of criminal prosecutions. For too long, New York State had a system that some called the “blindfold law,” whereby those accused of crimes were effectively kept in the dark about the strength of the case against them until the eve of trial.
They didn’t have a fair opportunity to study and probe the testimony of witnesses, or scrutinize cell phone records or police reports or bodycam footage or other key pieces of evidence. That was profoundly unfair, and out of step with almost every other state in America, which is why this Editorial Board backed the rewrite.
But over the years, a clear problem has come to the fore in Criminal Procedure Law Article 245. If a prosecutor’s discovery compliance is later successfully challenged, the time between certification and challenge is retroactively counted against the prosecution. That often results in almost automatic dismissals unrelated to the merits of the case or the legality of the investigation.
Case dismissals are up — which would be good if that were the result of weak cases or bad police work. But that’s not the reason; it’s just the result of failure to robotically comply with the precise letter of a narrowly written law.
As a result, defense attorneys have the perverse incentive to delay their discovery challenges to the prosecution to increase the likelihood of technicality-based dismissals. Dismissals are especially high in New York City, partly a result of busy prosecutors’ offices struggling to navigate the minefield.
Hochul’s proposed adjustments would continue to require disclosure of discovery materials for the purpose of stopping the speedy trial clock — but no longer allow a minor violation to retroactively invalidate the whole case on speedy trial grounds; clarify that prosecutors could certify compliance with the law once they have disclosed all relevant materials in their possession; expand automatic redaction so that witnesses’ physical addresses and other personal data is withheld; and otherwise tweak the rules without gutting them.
Of course, public defenders and others are throwing a fit, insisting that the changes take New York back to the dark old days in which criminal defendants had the deck stacked against them. That’s not the case.
What Hochul is trying to do, in good faith, is protect the rights of the accused to access all the critical information they need to build strong cases — without undercutting valid prosecutions in which DA’s offices have complied with the spirit of the law. That’s a better balance to strike.
The critical work of ensuring that those who commit serious crimes are punished ought not fall prey to arbitrary technicalities. This isn’t a game, it’s the deadly serious business of trying to create a safer, fairer New York.