Opinion: Discovery rollbacks indulge prosecutors at the expense of New Yorkers

While the Trump administration’s daily federal carnage captivates New Yorkers, Gov. Kathy Hochul is quietly maneuvering to undermine the state’s landmark discovery law. In 2019, New York passed legislation mandating specific timeframes for prosecutors and defenders to disclose critical case information, including police reports, photographs, 911 calls, and witness statements, to one another in criminal cases. Timely discovery allows for both sides to assess the strength of their opponent’s case and to prepare for trial. This information is particularly critical for criminal defendants who may need to decide whether pursuing a plea offer or a trial is in their best interests.  

Prior to the 2019 reforms, New York’s discovery law had been deemed one of worst in the country. Unlike the majority of states, which require “open file discovery” – where the prosecutor shares their entire file with defense counsel, New York permitted prosecutors to selectively disclose critical information on the eve of trial – if at all – with impunity. 

The 2019 discovery reform fell short of requiring open file discovery, but it did enumerate specific items for mandatory disclosure, require disclosure based on time frames specified by New York’s speedy trial guarantee, and authorize release from pre-trial detention or dismissal of the criminal case as remedies when the prosecutor failed to follow the rules.

Now Gov. Hochul has taken up the cause of prosecutors who complain that they should no longer have to follow these rules. The governor has proposed new legislation reducing the amount of information that prosecutors are required to disclose. Unsurprisingly, Hochul’s prosecutor-backed proposals expand the power of prosecutors at the expense of judges, allowing prosecutors to decide what information they believe is “relevant to the subject matter of the charges” and whether certain types of information should be redacted from defense counsel. These provisions blindfold criminal defendants who rely on the discovery rules and judicial oversight to know what information does and does not exist. 

Hochul’s proposal also weakens enforcement mechanisms for offending prosecutors. When prosecutors fail to comply with deadlines, courts need no longer dismiss cases or order release from pretrial detention. Instead, the court can simply give the prosecution unlimited additional chances to comply, allowing accused New Yorkers to languish in jail or requiring them to take off work and arrange childcare for additional, unnecessary court dates.  

But perhaps most ominously, the proposed legislation tethers time frames only to information in a prosecutor’s “actual possession,” exempting any material held by the police department, which it calls “constructive possession.” This legalese is a departure from federal constitutional law which makes clear that because the police are the investigative arm of the state, any evidence in their possession should also be deemed in the possession of prosecutors for disclosure purposes. Practically speaking, this change encourages law enforcement like the NYPD to bury evidence and hide misconduct, while prosecutors act with willful blindness. 

This is the third year in a row that Hochul has taken steps on behalf of prosecutors to rollback criminal justice reform, often tying the proposals to last minute budget talks. Hochul’s last proposed discovery “compromise” unsuccessfully attempted to put the burden on defense attorneys to determine the existence of missing discovery that potentially only prosecutors had to know even existed.  

Prosecutors argue that these special allowances need to be made because criminal case dismissals have increased since the 2019 reforms. But this is exactly what the law intended would happen. To avoid this consequence, prosecutors need merely follow the law.  

And what supporters of the rollback fail to point out is that the overwhelming number of dismissals have occurred in misdemeanor cases in New York City.  At Cardozo Law’s Criminal Defense Clinic, where I work as a law professor and co-director, these are the very cases that my students take on. These minor offenses, the majority of which involve no allegations of physical harm, often result from the over policing of Black and brown neighborhoods. Even with discovery reform, individuals accused of these crimes often spend a year or more going back and forth to court, disrupting employment and necessitating childcare, before a case can proceed to trial. Those in pretrial detention never see a trial. Regardless of their innocence or guilt, they succumb to any plea offer that gets them out of Rikers Island.  

Prosecutors simply do not need Gov. Hochul’s special allowances to gain more misdemeanor convictions at the expense of these New Yorkers. No one should have to defend themselves without knowing what all of the evidence against them is. New York prosecutors can comply with the existing discovery laws, just as the majority of prosecutors do nationwide, every day. 

Kathryn Miller is a professor at Cardozo School of Law and co-director of Cardozo’s Criminal Defense Clinic.