Policy

Hochul and legislative leaders consider changes to discovery reform, worrying public defenders

As state budget negotiations continue, state leaders are rumored to be considering relaxing requirements for prosecutors to turn over evidence quickly.

Supreme Court of the State of New York, in downtown Brooklyn

Supreme Court of the State of New York, in downtown Brooklyn Barry Winiker/Getty Images

Up until now, most of the public debate over criminal justice reforms in the budget have revolved around Gov. Kathy Hochul’s proposal to give judges more discretion in setting bail. But in what public defenders are calling an eleventh hour push by New York City district attorneys, Albany officials are now considering changes to discovery reforms that were approved in tandem with bail reform. Sources familiar with the ongoing talks told City & State that prosecutors are proposing a change that would in effect give them more time to hand over all evidence to defense attorneys, with less potential for consequences if they don't.

At least four different public defender groups released statements on Wednesday morning urging legislative leaders to reject proposed changes to the 2019 discovery reforms, which implemented new standards for prosecutors to meet when handing over evidence to the defense. Before the reforms, prosecutors could hold off on providing evidence to the defense until right before a trial began – which public defenders said resulted in critical evidence being withheld from their clients, leading to high rates of plea deals and forcing people to languish in jail due to continual delays in proceedings. The laws enacted in 2019 put a clock on how long prosecutors had to provide the evidence. If they didn’t turn over all the evidence in time, a judge could toss the case for failing to adhere to laws meant to ensure timely trials for defendants.

Under the current law, prosecutors must submit all evidence they have to the defense before they can file a certificate of compliance, a document that attests that they have done their due diligence and can stop the speedy trial clock. The judge can toss the case if prosecutors fail to file the certificate, or if a judge finds that they have not done sufficient due diligence and turned over all the evidence, by the speedy trial deadline – which is 90 days after arraignment for a misdemeanor and six months after arraignment for a felony. Prosecutors have called on the Legislature to repeal the laws, complaining that they don’t have the resources to comply with them. In her executive budget, she had proposed $40 million for prosecutors to help them comply with discovery laws, something that both legislative chambers included in their proposals as well as extra funding for public defenders for the same reason.

But now public defenders say that prosecutors are trying to ram through changes to the discovery law as part of the budget and behind closed doors. “Rather than provide the necessary resources to fulfill the purpose of New York’s discovery law, Gov. Hochul, alongside a handful of district attorneys, are attempting to force through a proposal that would gut these much needed reforms,” the Brooklyn Defender Services said in a statement. “Legislative changes to undermine the discovery laws will diminish prosecutorial accountability, result in more wrongful convictions, and cause more New Yorkers to languish in deadly jails for longer.”

According to sources familiar with a proposal recently presented to lawmakers, prosecutors are suggesting changes to the discovery law that would put more onus on defenders to receive evidence. Under the proposed changes, the defense would have 35 days after a prosecutor files a certificate of compliance to file a motion challenging it. If they do not file a motion, then they would waive the right to any evidence that may be missing from discovery. Even if they do file a motion challenging the certificate of compliance, they won’t get the missing evidence right away. A judge would have to hold a hearing and then rule on the motion, something that could take months to settle and would stop the speedy trial clock in the meantime, leaving defendants either in jail or stuck in limbo.

A spokesperson for Hochul did not immediately return a request for comment, but the governor advocated for and won minor rollbacks to discovery reform last year.

Both the Legal Aid Society and the New York County Defender Services specifically singled out New York City district attorneys as the ones pushing for these specific changes. “This 11th hour ploy to gut one of the most transformative reforms Albany has codified in recent memory is a shameless attempt by prosecutors to revert back to the days when discovery practices skewed heavily in their favor,” the Legal Aid Society said in a statement. “Funding is actually the solution that would allow discovery reform to fulfill its intended goal.”

Morgan Bitton, the executive director of the District Attorneys Association for the State of New York, told City & State that the group has pushed for changes to discovery reform to give prosecutors more time to comply – something they have not been shy about – but that she has not seen the specific proposal currently at issue. Some district attorneys, like Democratic Staten Island District Attorney Michael McMahon, have floated other proposals for changes to the law. In a memo shared with City & State, McMahon suggests splitting the process of discovery into three stages as a means of making it easier for prosecutors to comply.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.