Before Governor Kathy Hochul released her proposal to once again alter New York’s 2019 criminal justice reforms, her office assured the public that it merely wanted to “clarify,” “streamline,” and “right-size” them.
After pushing through repeated rollbacks to the state’s controversial bail reform law in previous years, Hochul announced last month that she was targeting lesser known but critical reforms that overhauled the process, known as discovery, by which prosecutors must share evidence with the defense in criminal cases. Those reforms made it easier for defendants to see the full slate of evidence against them, giving them more information to build their cases and consider plea deals.
“We do not want to change the original spirit of the law, because we think it’s appropriate,” Marcos Gonzalez Soler, Hochul’s deputy secretary for public safety, told New York Focus in mid-January. “We don’t want to play games.”
When the governor released the text of her proposal on January 21, however, it was sweeping. The 11-page piece of legislation would give prosecutors power to decide what information they initially need to share with defendants and make it harder for judges to dismiss cases when prosecutors blow past deadlines or don’t turn the right material over. While procedural, the changes would have significant effects on the criminal trial process.
District attorneys — particularly those from New York City, where the reform contributed to a dramatic spike in discovery-related dismissals — have hailed Hochul’s proposal. They say it would keep the heart of discovery reform intact while ensuring that otherwise strong cases aren’t getting thrown out for discovery violations.
“Now is the time to amend New York’s broken Discovery laws and we thank Governor Hochul for recognizing this fact,” Staten Island District Attorney Michael McMahon, who also serves as the president of the District Attorneys Association of the State of New York, said in a statement.
Public defenders, meanwhile, are sounding the alarm. They assert that the legislation would turn back the clock on key reforms and allow prosecutors to hold back evidence. They’re instead backing a proposal to give prosecutors direct access to certain police records for discovery purposes, hastening the process by cutting out an often obstructive middleman.
“It will return us to a time when people languished in jail before trial,” the Bronx Defenders said of Hochul’s plan, “forced to choose between a plea deal to escape horrific conditions or go to trial without knowing the evidence against them.”
Discovery is a foundational aspect of the United States’ criminal-legal system. It seeks to ensure that people accused of crimes get a fair shake by guaranteeing them access to all of the evidence in their case.
Before discovery reform, prosecutors in New York could often wait until right before trial to share their case materials. The existing discovery law had deadlines, but New York was one of only a few states that had virtually no mechanism to enforce them. Defense advocates pejoratively called it the “blindfold law,” since defendants and their attorneys often had to consider plea deals and prepare for a possible jury trial without knowing all of the evidence against them.
“As you’re about to start picking a jury, the [prosecutor] would hand you a stack of papers — hundreds of pages, possibly more — and drop it on the table,” a public defender explained to New York Focus.
New York reformed its discovery law in 2019, requiring prosecutors to quickly send to the defense a prescribed list of materials in their possession. The reforms beefed up deadlines and added teeth to enforce them. Now, if prosecutors fail to do their “due diligence” during discovery, the defense can request that judges throw the case out.
The reforms keep prosecutors eager to suppress exculpatory evidence in check, defense attorneys say.
They pointed to one case, reported by The New York Times, of a nightclub bouncer charged with gang assault in 2013 after confronting a patron. Prosecutors obtained video of the fight that showed the bouncer had only broken it up, but under the law, they could delay sending it to the man’s attorney. In the meantime, prosecutors pushed him to plead guilty for reduced prison time, before eventually sharing the video. A year and a half and 22 court appearances into the case, a judge dismissed the charges.
Hochul’s proposal targets two major areas of the 2019 reforms: what information prosecutors share with defendants and when they have to share it.
Currently, New York’s discovery law compels prosecutors to share all records that “relate” to the circumstances of a case, outlining 21 categories of records that include police reports, witness statements, 911 calls, police discipline histories, and others. Prosecutors must hand over everything, even evidence they don’t plan on using, because it could help the defendant build their case or prove their innocence.
The governor’s proposal would give prosecutors more leeway to choose from that list of records: They’d only need to share material “relevant to the subject matter of the charges” at hand. If they don’t think that, for example, certain police records or witness statements are relevant to what they’re trying to convict someone of, the prosecutor could argue that it’s not their responsibility to share that information.
“It will return us to a time when people languished in jail before trial, forced to choose between a plea deal to escape horrific conditions or go to trial without knowing the evidence against them.”
—The Bronx Defenders
“It leaves a lot of room for discretion on the part of the prosecutors in terms of what they’re going to turn over,” said Krystal Rodriguez, policy director of the Data Collaborative for Justice at John Jay College.
McMahon of the District Attorneys Association of the State of New York did not respond to a question about whether prosecutors should have that discretionary power.
In addition to what to share, Hochul’s proposal would give prosecutors authority to determine how much of each piece of evidence to share. Prosecutors and defense attorneys are currently allowed to redact sensitive personal information, like social security numbers, from discovery documents. Hochul’s proposal, however, would give prosecutors the power to redact information that they deem “is not relevant” to the charges.
Defense attorneys say the changes could take them back to the “blindfold” days, when they’d have to build their case without potentially crucial evidence. It could even lead to someone taking a plea deal when they might not need to, they argue.
Another change in Hochul’s discovery proposal relates to enforcement.
Under Hochul’s proposal, it’d be up to the defense to call a prosecutor out if they thought they were withholding important evidence. If a judge agreed, they would have to consider how badly the unshared evidence impacted the defense’s case and prescribe a remedy — for example, barring the prosecutor from using the evidence or giving parties more time to prepare.
Unlike under the current law, tossing cases should be a last resort, Hochul’s proposal dictates.
That could result in complex pretrial duels, with prosecutors and defendants fighting over whether all the evidence was shared. “This will result in a ton of arguments going forward,” said Rodriguez.
The enforcement changes also apply to discovery deadlines. Prosecutors must be ready to try a case within a specific time frame: between a few weeks and six months of arranging someone, depending on the charges’ severity and with some built-in delays. Under discovery reform, a judge can dismiss the case if prosecutors don’t share all of the required evidence within that time. Hochul’s proposal would again tell judges in that case to treat dismissal as a last resort.
Kalle Condliffe, a senior staff attorney at the Legal Aid Society’s criminal defense practice, worries that that would take New York back to the pre-reform days, when jailed defendants waited indefinitely for prosecutors to prepare for their cases.
“More often than not, the sanction is just an adjournment,” Condliffe said. “It’s more delay for the defense to review and incorporate whatever material was belatedly disclosed — which benefits the prosecutor too. They are happy for the delay.”
The most infamous example of that dynamic was 16-year-old Kalief Browder, who spent 2010–2013 on Rikers Island, awaiting trial over allegations that he had stolen a backpack — only to have his charges dropped after he’d spent 800 days in solitary confinement. Browder said his wrongful jailing contributed to depression, and he committed suicide in 2015.
Legislators named the 2019 discovery reforms “Kalief’s Law.”
As Hochul tells it, Kalief’s Law has “led to cases being thrown out on minor technicalities.”
Her complaints echo those of New York City prosecutors. Manhattan District Attorney Alvin Bragg, who has led campaigns to roll back discovery reform, has complained that judges have dismissed cases over discovery failures that weren’t prosecutors’ fault.
Bragg claimed that, in a domestic violence case, his office came across a photo after the discovery deadline. His office offered to not use it as part of their prosecution, he said, but the judge still ruled it a violation. “Ruling: Case dismissed,” he said.
His office told New York Focus that, last month, a judge dismissed a case against a man accused of forcible touching and taking pictures of his neighbor without her consent because prosecutors failed to turn over documents showing the defendant’s location in custody. It can’t speak to judges’ actions in other jurisdictions, but “thousands of cases are now dismissed annually, for reasons that have nothing to do with fairness or justice,” Bragg’s office said in a statement.
Public defenders cast doubt on the “technicalities” argument. They point to court rulings, including a 2023 decision from New York’s highest court, which affirmed discovery reform’s mandate that judges only toss a case for discovery reasons if the prosecutor failed to exercise “due diligence” in turning over the required material. The court wrote that the law “does not require or anticipate a ‘perfect prosecutor.’”
In a 2023 survey, 60 percent of judicial offices in New York City said that police records made it “very difficult” to meet discovery deadlines.
“Cases aren’t being thrown out over ‘technicalities’ or because defense attorneys are ‘gaming the system,’ but because prosecutors — despite generous deadlines — fail to provide evidence to support the charges,” the Bronx Defenders argued. “No evidence, no case.”
There’s seemingly no reliable data available to evaluate whether a significant number of cases are getting tossed on such technicalities, but other numbers provide some insight. They show a likely massive increase in overall discovery-related dismissals in New York City.
Data published by the state Office of Court Administration show that the proportion of New York City cases being thrown out over pretrial deadline violations has quintupled: Five percent of cases finished in the first 11 months of 2019 — the year before discovery reform went into effect and the earliest data available — were thrown out over “speedy trial” violations, compared to 27 percent last year.
The most common speedy pretrial dismissals stem from prosecutors’ failure to turn over required evidence, meaning discovery reform likely drove the spike.
Outside of New York City, however, those types of dismissals remained low, hovering between 1 and 2.5 percent.
“From Richmond County [Staten Island] to Chautauqua County and everywhere in between, the unintended consequences of the 2020 Discovery Statute have led to the dismissal of thousands of felony and misdemeanor cases or the dramatic reduction of charges across our State,” DA McMahon of the District Attorney Association of the State of New York said in a statement.
State data show that speedy trial dismissals in Chautauqua County, in the southwestern tip of the state, are rare — less than half a percent of finished cases every year since 2019. Overall dismissal rates in the county have decreased since discovery reform took effect.
Asked about the discrepancy, a spokesperson for McMahon said that he “is alluding to the fact that this is a statewide issue. Part of the problem with the current statute is that not only are cases being dismissed but charges are also being drastically reduced.”
Chautauqua County DA Jason Schmidt did not respond to requests for comment.
Defense attorneys say dismissal rates are partially dependent on police departments, which may offer some explanation for the New York City numbers. Prosecutors rely on the departments to share police records, which they’re required to hand over during discovery. If the cops don’t send materials or send them late, it puts prosecutors at risk of shirking their discovery obligations.
“The NYPD is a problem,” said Condliffe of the Legal Aid Society. “They’re just not transparent, particularly when it comes to certain items. Like they do not want to share police misconduct information that’s required to be disclosed.”
In a 2023 survey, 60 percent of judicial offices in New York City said that police records made it “very difficult” to meet discovery deadlines; 36 percent in the rest of the state said the same.
The NYPD did not respond to a request for comment.
State lawmakers have proposed a fix for that. Last month, Assemblymember Micah Lasher and Senator Zellnor Myrie introduced a bill — supported by both district attorneys and public defenders — that would give prosecutors direct access to certain police records.
Hochul’s office has another idea. Her discovery proposal would create a distinction between records to which DAs’ offices should legally have access — like police records — and those that are in its immediate, “actual” possession.
The law would still require prosecutors to hand over police records — at least at some point. Rather than forcing them to turn everything over on deadline, Hochul’s proposal would limit that requirement to what is in their actual possession, allowing prosecutors to get to the rest of it later. If the police haven’t yet turned over a crucial report or witness statement, prosecutors can move a case forward without obtaining it and handing it over in the legal time frame — yet again allowing prosecutors to blindfold defendants, public defenders argue.
In response to a detailed list of questions, Hochul’s office emailed the transcript of a recent press conference that did not answer them.
Lasher, who previously served as Hochul’s policy director, said that he supports “thoughtful improvements” to the discovery law, but he’s still “carefully reviewing” the governor’s proposal.
“The system before discovery reform, which depended on coercive plea deals, was no one’s idea of justice,” the assemblymember said in a statement, “but neither is a system where valid criminal charges are dropped because prosecutors are overwhelmed by administrative burdens and forced to triage cases.”
The state legislature will hear from prosecutors and defense attorneys during a Thursday budget hearing, then craft its response to the governor’s proposal. The governor’s office and Senate and Assembly leaders will then haggle over language, and pass whatever compromise they reach as part of the state budget, due April 1.