Someone getting off on a technicality might not seem like a big deal for speeding tickets, or even low-level crimes with no physically harmed victims. But New York’s discovery law does not distinguish between levels of crime when it comes to dismissing charges on technicalities. Under the law, rapes and other heinous crimes are being dismissed.
In criminal cases, the prosecution must share information, or “discovery,” with defendants, so they can evaluate the cases against them and either mount a defense or plead guilty. In 2019, New York created the country’s most comprehensive open discovery system. District attorneys supported those changes and still support open discovery. What they don’t support is loopholes that allow those accused of serious crimes to escape on technicalities, leaving victims without recourse and risking public safety. Worst of all, those defendants are back in our communities, often re-offending.
Discovery deadlines are tied to a speedy trial clock, so if a prosecutor does not provide discovery within strict time limits, a case can be dismissed, regardless of whether the discovery is relevant to the charges, whether the prosecutor exercised good faith in trying to obtain the discovery, or whether the defense is harmed by the late or non-disclosure.
A single piece of irrelevant material can allow a criminal to walk free. Items that have triggered dismissals include information on the battery life of body-worn cameras, duplicative police reports, and rosters of police officers on duty on a given day. Sadly, some defense attorneys have made discovery a game, lying in wait until the clock runs out, before speaking up about missing discovery.
The current discovery law has led to a staggering number of dismissals. Data from the state Office of Court Administration shows that dismissals due to speedy trial violations surged from 12,398 cases in 2019 to 42,212 cases in 2023. But those numbers do not capture cases where charges were reduced, where plea deals were made to avoid a dismissal, or where dismissals occurred in Town and Village Courts. New York has almost 1,200 such courts outside New York City that hear approximately two million cases annually, including violent crimes, domestic violence, and drunk driving.
The discovery problem is not just a New York City issue. Drunk driving cases are being dismissed in counties statewide. Defense attorneys often tell clients accused of drunk driving to “wait it out” because they can beat the charges if the prosecutor drops the ball and misses an item of discovery. The discovery law creates a disincentive for defendants to take responsibility for their actions or to seek help, such as entering alcohol or drug treatment programs. Instead, they hope that a delay in getting lab results or a tow truck receipt will allow them to avoid accountability.
Dismissals are happening in all types of cases. In one upstate county a creepy defendant charged with forcible touching had his case dismissed after the prosecutor discovered that there was a video of the incident that was only found after the speedy trial clock had run out. The defense and the court were immediately told about the video. But the case was dismissed even though with best efforts the video was not discovered until after the time had run, and even though the defendant had time to prepare to address the video and his defense was not harmed by the late disclosure.
That is not justice for the victim and sends a dangerous message to those who would harm others.
Gov. Hochul has proposed a fix that would not change the types of information that must be shared and would not unduly delay discovery. The proposal does not go back to so-called “bad old days” where discovery was dumped on the defendant on the eve of trial. Instead, it creates rational remedies so that if a discovery failure does not actually harm the defendant’s ability to mount a defense, a case will not be dismissed. Failure to comply could still trigger dismissal if the defense is harmed.
Surely our lawmakers did not intend for the discovery process to be weaponized. Thousands of cases should not be dismissed because of harmless omissions that have no bearing on actual charges. The current law promotes dangerous gamesmanship and undermines the integrity of our criminal justice system.
It is time for the state Legislature to fix our discovery law and endorse the governor’s proposed amendments. Those minor changes will ensure that victims are not denied justice and that public safety is not compromised.
Bitton is the executive director of the District Attorneys Association of the State of New York.