DAs say judge confusion is to blame for some discovery dismissals

As legislative leaders, Gov. Kathy Hochul and district attorneys work towards finalizing a “framework” deal on discovery laws, prosecutors seemed to admit on Wednesday that judges are dismissing cases due to a misunderstanding of current statute and case law.

The issue of discovery has dominated budget negotiations for weeks, with the spending plan now over two weeks late. District attorneys and Hochul have pushed incredibly hard to partially roll back reforms made in 2019 to the laws that govern how and when prosecutors must turn over evidence to the defense. Although there are technically much shorter timelines in place for discovery, the real deadline is the one set by speedy trial law, the violation of which can lead to cases being dismissed. For misdemeanors, that’s effectively three months, and for felonies, six months. 

Prosecutors have argued that the 2019 reforms, while needed to address the heavily anti-defendent bias in the law, went too far. They have repeatedly made the case along with Hochul that many cases are now getting thrown out on discovery “technicalities” that come about after the speedy trial clock has run out. 

The stats do back up the fact that case dismissals have increased since the reforms took effect in 2020, particularly in New York City. But cases are not automatically dismissed for minor discovery errors, as prosecutors have claimed. A 2023 Court of Appeals ruling in the case People v. Bay established that, in cases where prosecutors failed to turn over evidence to the defense until after the speedy trial clock had already run out, a judge must consider whether the prosecutor acted in good faith when filing their certificate of compliance to stop the speedy trial clock and whether they exercised due diligence when it came to the missing evidence. In theory, if the prosecutor can show that they acted in good faith and exercised due diligence, a judge shouldn’t dismiss a case because of a small, irrelevant piece of evidence. A review by the judicial accountability group Scrutinize of unpublished judicial opinions on speedy trial violations related to discovery found the majority cited good faith or due diligence issues. 

But speaking to reporters on Wednesday, Staten Island District Attorney Michael McMahon said the discovery changes he and others are pushing for are needed because judges are dismissing those cases anyway. “Many judges are not reading that law properly, and they're not understanding, not making that third, that second step, which is, has there been harm?” McMahon said when questioned about the due diligence standard. “They are finding if there's a technical violation, even with good faith and due diligence, that the case is being dismissed, and that's why we're going to clarify this law.”

If a judge dismisses a case because some evidence was not turned over to the defense in time, even though prosecutors did their due diligence, then they are not following the Bay decision, according to public defenders who oppose Hochul’s proposed changes to the law. There have in fact been cases in which a trial court dismissed a case for a discovery violation, only for a state appeals court to reverse that decision and reinstate the case after finding that the prosecutors were not required to turn over the evidence in question.

McMahon argued that the changes that he and fellow prosecutors supported would simply “clarify” the due diligence standard, which he said they are more than happy to be held to. “Obviously, that is a standard that prosecutors are held to, with or without this law, and it's one that we're very proud to be held to,” he said. “With the amendments to the law that we are very close to resolving, simply define that better, so the judges will understand what that standard means.”

In Bay, New York’s highest court laid out a number of factors for judges to consider when assessing whether prosecutors had done their due diligence. “Although the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery,” Judge Caitlin Halligan wrote in the decision.

However, district attorneys would not be satisfied with simply codifying the Bay standard and the list of circumstances that judges should consider into law. They have argued that the decision didn’t go far enough, and that judges should also consider the impact that a missing piece of evidence has on the defendant’s case, which is known as prejudice. “If a prosecutor exhibits good faith and due diligence and still something was missed, the question then should be, did that cause any type of harm or prejudice to the person charged with the crime?” McMahon said. “And if so, then the solution should be one that's fashioned around or is proportionate to that harm.” 

In theory, proving good faith and due diligence would prevent the dismissal of a case if a discovery mistake comes to light after the speedy trial clock runs out. Including it as a third factor would seem to imply that even if prosecutors don’t prove due diligence, a judge can still decide the evidence was inconsequential and therefore allow the case to continue. An alternative might be to expand on the circumstances the judge can consider when determining due diligence to include prejudice, which would give prosecutors another means to prove their diligence.