While it never garnered the attention of bail reform, changes to New York State’s legal discovery rules—governing what evidence prosecutors must disclose to defense counsel and when—were arguably the most consequential of the several criminal justice reforms enacted by Democrats over recent years. The consequences have been predictably disastrous, which is why my colleagues at the Manhattan Institute and I have called for changes since even before the rules took effect. The institute’s Policing and Public Safety Initiative, led by Hannah Meyers, has made reforming the 2019 law a primary focus.
Now, with all five of New York City’s elected district attorneys—including reform-oriented figures like Alvin Bragg and Eric Gonzalez—agreeing on the need for change, Governor Kathy Hochul has backed a proposal to amend the discovery rules. The goal: to stem the tide of case dismissals caused by the 2019 law’s unduly burdensome requirements.
The proposed amendments have found their way into the governor’s new budget plan, just as the original reform was part of a budget bill. Among the key changes is a time limit for defense counsel to register objections to what the prosecution has provided. As Meyers and others have pointed out, current discovery rules require prosecutors to turn over a trove of evidence within 35 days of a defendant’s arraignment—yet, defense attorneys often fail even to open the files. The governor’s proposal would also place some reasonable limits on what prosecutors must disclose, addressing a major flaw of the 2019 law: its failure to restrict compliance to evidence relevant to the case at hand. Prosecutions can currently be dismissed over technical noncompliance, even when the undisclosed material has nothing to do with the charges. Under the proposed changes, defendants would have to show that their defense was materially harmed (“prejudiced,” in legalese) by a prosecutor’s failure to disclose evidence before a case could be dismissed. Judges would also gain other options short of dismissal in sanctioning non-compliance.
This is a welcome development, with the potential to improve public safety—unless defense advocates succeed in watering down the proposed changes. The current discovery regime has forced district attorneys to triage cases, limiting their ability to bring charges and putting hardened criminal offenders back on the streets much sooner than they otherwise would be had their cases remained active.
While the governor’s proposal incorporates several recommendations from Meyers and others, it’s not perfect. For example, it’s unclear whether the changes will loosen restrictions on plea bargaining. But given the state of criminal justice policy in New York, it would be a mistake to let the perfect be the enemy of the good.
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