Lawmakers succeed in watering down Hochul’s proposed discovery changes

Over a week after Gov. Kathy Hochul declared victory in the budget, particularly when it came to her top priority to change the state’s discovery law, final language on the matter revealed that she agreed to a far more watered-down series of changes compared to what she proposed. While the amendments to discovery still go further than what public defenders and criminal justice reform advocates had wanted, lawmakers managed to push back on the most significant changes Hochul sought.

The governor held up the budget for weeks in order to push for changes to the law that governs how and when prosecutors must turn over evidence to the defense. Lawmakers overhauled the law in 2019 in an attempt to make it more fair to defendants and tip the scales away from prosecutors. But district attorneys have for years attempted to roll back parts of the law, and this year Hochul joined their crusade. They argued that the reforms, while well-intentioned, went too far and resulted in many cases getting dismissed over minor technicalities. 

Under current law, discovery requirements are tied to the speedy trial clock. In order for a prosecutor to attest they are ready for trial and stop the clock, they must have turned over all discoverable materials. If a judge finds that they failed to turn over some evidence without exercising good faith and due diligence, then the judge can invalidate the certificate of compliance, restarting the speedy trial clock. If this happens after the speedy trial clock has already run out, then the case would automatically be dismissed because the only remedy for violating the speedy trial law is dismissal. But if missing discovery or other issues with the certificate of compliance emerge before the speedy trial clock runs out, a judge has a wide variety of other remedies they can use to cure the mistake.

The final language on the issue appeared in the Education, Labor and Family Assistance budget bill, this year’s omnibus “big ugly” that contained the thorniest matters. And it differed quite a bit from both the governor’s original proposal and the way that Hochul’s counsel Brian Mahanna described the final discovery deal to reporters last week, which sounded suspiciously identical to the governor’s original pitch. 

In her original executive budget proposal, Hochul sought to give judges the ability to cure discovery errors through what she said would be more proportional remedies than dismissal, even if the speedy trial clock had already run out. The language said that a judge could only determine that a prosecutor was not ready for trial – triggering an automatic dismissal – if the defense showed missing evidence had prejudiced their case and “no other remedy… sufficiently cures the prejudice.” Typically, under the pre-2019 law, the most common cure for prejudice was delaying trial, giving the defense more time to assess new evidence but also prolonging the pretrial period of people who may be in jail during that time. The governor’s original proposal also would have only required prosecutors to turn over evidence “relevant” to the case, rather than all evidence “related” to the case, as is required under current law. 

Speaking with reporters last week, Mahanna said that the discovery language agreed to in the final budget deal would only require evidence relevant to the case be given to the defense and would let judges consider the prejudice missing evidence causes the defendant when determining whether a prosecutor acted with due diligence. Most notably, he also suggested that even if the speedy trial clock had run out and a judge found prejudice with the missing evidence, then a cure other than dismissal could still be used. That would have represented a significant decoupling of discovery and speedy trial – and a significant defeat for the public defenders and lawmakers who opposed the governor’s proposed changes to the discovery law.

But Mahanna’s characterization of the discovery deal appears to be false, according to the new bill language released on Wednesday. The new language in the discovery law does add the prejudice standard as one that the judge can consider when evaluating whether to invalidate a certificate of compliance over missing evidence. And it offers a clearer and more expanded definition of “due diligence” for judges to consider, which includes prejudice, prosecutors’ knowledge of missing evidence, and the volume of evidence. It also requires judges to take a more holistic view when determining whether a prosecutor has acted with due diligence, instead of just finding that they did not act with due diligence if they fail to turn over specific evidence. But speedy trial and discovery remain meaningfully tied, so if a judge determines a prosecutor did not exercise diligence and the speedy trial clock has since run out, the only cure remains dismissal of the case.

That represents a significant departure from Hochul’s original proposal, since a key element of her proposed changes was to stop cases from being automatically dismissed even if judges found that prosecutors had failed to turn over discoverable materials.

Additionally, legislators were able to keep much of the discoverable evidence “relate(d) to the subject matter of the case” or “charges.” While the world of discoverable materials narrowed slightly under the agreed upon language, many categories that Hochul had sought to limit to “relevant” remained “related.”

Other aspects of Hochul’s proposal, however, still made it in without significant change. One of the biggest measures that stayed unchanged from January is a provision that will give the defense 35 days to challenge a certificate of compliance, with limited ability to ask a judge for extra time. The measure is meant to prevent defense attorneys from waiting until the speedy trial clock runs out to raise a challenge in hopes of a dismissal, a practice that prosecutors call a loophole that defenders abuse.

The concessions she agreed to did not dampen Hochul’s celebratory mood, and  getting legislative leaders to engage in even more rollbacks to their landmark 2019 criminal justice reform measures is still a victory for her. The amendments to the law still tip the scales further back in favor of prosecutors in a way Hochul argues balances them and public defenders say makes them uneven again. “I swore to fix the loopholes in our discovery laws that were letting criminals walk free,” Hochul wrote on X after the final language came out. “Thanks to the work of New York’s District Attorneys and advocates, we got it done.”