Last Thursday, news leaked that New York governor Kathy Hochul was proposing changes to New York’s bail-reform laws to make it easier for judges to impose bail on certain dangerous defendants. These changes are important, and welcome, but their most consequential impact could be to the process known as “discovery”—in which prosecutors collect and share case material with defense attorneys.

In January 2020, the state legislature in Albany passed discovery reforms that shredded the ability of assistant district attorneys to bring criminal cases to court. Prior to the legislation, ADAs provided defendants with their intended trial evidence, known witness statements, and exculpatory material. The reforms dramatically increased the burden on prosecutors. They designated 21 categories of discovery and initially allowed only 15 days (later raised to 20 to 35, depending on the defendant’s jail status, following prosecutor pushback) for prosecutors to review, redact, and provide materials to the defense. The discovery categories include statements made by defendants, co-defendants, witnesses, and public servants; grand jury transcripts or transcripts of testimony from any of the above parties; designations for which witnesses would be called at trial, along with description of “adequate” methods to reach them; and copies of search warrants.

The reforms also require prosecutors to provide lists of publications and proficiency tests taken by experts for the past ten years; of any promises made to potential witnesses; of all tangible property possessed by defendants or co-defendants; of other items the prosecution intends to introduce at trial, with a designation of the “type of possession”; of crimes committed by defendants; of crimes committed by witnesses; of pending cases against potential witnesses; and on and on.

Under the discovery reforms, prosecutors now have a “missing memo book” problem as well. All types of memos, books, and media held by police are considered to be in the possession of the various district attorneys’ offices. This is a legal fiction to anyone who equates “possession” with knowledge as basic as an item’s location, but the responsibility to find, process, and produce these documents is now a city prosecutor’s Sisyphean task.

To appreciate how this plays out in practical terms, consider a criminal case: two men are brawling in front of a bar, and one shatters a bottle over the other’s head. A pair of patrol officers rush over. Simultaneously, an onlooker calls 911, and in response, a patrol car with an officer and a sergeant arrives minutes later. A fifth and a sixth officer come to control the crowd. One of them talks to a witness, who “didn’t see anything,” but the officer jots down the statement nonetheless. A seventh officer arrives to look for surveillance footage and doesn’t find any. Some of the other cops take notes as well. Most are wearing body cameras, capturing video that largely duplicates other footage—but without watching all of it, one cannot be sure. Witnesses offer varying accounts of what happened and what they saw. Meantime, the people assigned to keep track of all this evidence and all these witnesses, victims, or assailants, are the same people—the police—who are breaking up the fight, avoiding the broken glass, handcuffing the brawlers, driving them, booking them, interviewing them, searching them, and then filling out paperwork documenting events that happened, by now, hours earlier.

The prosecutor assigned to the case collects all the names, papers, photographs, and other documents. But after watching hours of video, he notices that there were one, two, three—no, seven officers on the scene, and he has only six memo books. Who is the seventh officer? He tries to determine that from the film shot in the middle of the night. What did the missing officer write? Anything? The ADA doesn’t know. Until he knows, he can’t certify that he has completed discovery. And so the case stalls, and the speedy-trial requirement—now conjoined to the added burdens of discovery—bears down on him.

In mid-2020, the New York State Courts introduced the Electronic Document Delivery System, a Covid-era online submission portal for prosecutors and defense attorneys. Alas, it has not improved efficiency: ADAs are now widely expected to email or hand over their material in-person or via online drives. Defense teams never even open many of these digital documents, but prosecutors still must complete EDDS Certificates of Compliance before trials can go forward.

Discovery reforms have dramatically curtailed the flow of criminal justice cases in New York City. As of October 21, 2021 (the most recent date available in the court system), prosecutors have filed certificates of compliance on a mere 21 percent of the more than 40,000 felony and misdemeanor cases pending more than 20 days. In Manhattan, it’s 15 percent. In the Bronx, it’s 10 percent. At the same time, cases without Certificates of Compliance are getting dismissed at increasing rates. New York City felony and misdemeanor dismissal rates jumped from 41 percent in 2019 to 57 percent in 2020 to just under 70 percent by October 2021.

In May 2020, the legislature modified discovery reform, relieving the requirement that prosecutors disclose the curriculum vitaes of experts not yet hired. Now Governor Hochul is further proposing to lighten the burden on ADAs to a more feasible level of “substantial compliance.” Prosecutors can submit discovery that is still missing, say, a memo book or a piece of footage, as long as the material doesn’t substantively differ from what is submitted.

This will still leave an enormous burden on prosecutors, but it nudges things in the right direction. The legislature should go much further. Public safety will not return until the wheels of justice are allowed to turn.

Photo by Lev Radin/Pacific Press/LightRocket via Getty Images


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