Opinion: Supporting Hochul's proposed changes to the discovery law

Although I write today as district attorney, for more than 20 years I worked as a court attorney in Albany City Court and served for six of those years as a judge in East Greenbush. I have spent my career in the criminal courts of New York state, not only analyzing legal issues, but also observing what justice looks like, both in the courts of our capital city and in my suburban hometown. From those perspectives, I understand the critical role of fairness and transparency in our system of justice. 

When the discovery reforms were enacted in 2019, I voiced my concerns about the ability of DA’s offices, especially smaller offices like mine, to comply with those rigid standards. At the same time, I stood in agreement with my fellow district attorneys in the belief that early and open discovery promotes justice, both for defendants and for crime victims. 

However, the broad directives within the new discovery statute have resulted in the dismissal of cases in staggering numbers. Last week, I attended a roundtable held by Gov. Kathy Hochul, where we discussed those numbers. In 2023, for example, 49% of cases outside of New York City involving domestic violence were dismissed. That is why the governor is pushing a set of amendments to the discovery laws that I, and DAs across the state, support.

New York’s current discovery law requires a prosecutor to turn over all material related to a case. Yet, if the DA is unaware of the existence of a particular piece of discovery, it is impossible for the DA to seek that item and to turn it over. We can’t know what we don’t know. Sometimes those materials are in the hands of agencies outside our purview, such as hospitals, school districts or treatment providers. Often, related documents are equally available to defense attorneys using subpoenas. Yet, under the current framework, good faith on the part of the prosecutor is not enough. A failure to turn over even a small piece of discovery can result in a court retroactively deciding that the prosecutor was not ready for trial and dismissing the case for violation of the defendant’s right to a speedy trial. Harm to the defense, or lack thereof, is not considered.

The governor’s proposal – which keeps the core 2019 reforms intact, continues to tie discovery to the speedy trial clock and requires the prosecution to provide expanded lists of information – makes a common-sense argument: the consequence for missing discovery should be proportionate to the significance of the missing items. 

My office takes pride in the thorough, thoughtful approach we take to collecting and sharing discovery, but despite our best efforts, we are not always aware of everything that exists. The governor’s proposal would mean that a small piece of missing discovery would not result in an entire case being dismissed. The proposal would allow a judge to consider whether the defense case was actually harmed by late or missing discovery and to determine if a prosecutor could reasonably have known of the existence of a missing piece of discovery, before fashioning an appropriate remedy. 

In addition to the painful consequences that those automatic dismissals cause for victims, they cause a secondary issue regarding staff recruitment and retention within DA’s offices. As prosecutors, we serve in this capacity because we care about public safety, and we want to do the right thing to gain a just result. When important cases are dismissed due to technical errors, such as the failure to turn over duplicative documents, that result can have a significant impact on the morale of a prosecutor’s office. Doing more with less does not lead to productivity or accuracy. Our current discovery law does not foster a system that inspires confidence or provides accountability.

The changes proposed by Hochul protect the framework of our robust discovery laws. They continue the requirement of an early and fair exchange of information with consequences for failure to comply. I urge the state Legislature to enact the reforms the governor is proposing. We owe it to the victims across our state.