By Hannah E. Meyers

  All prosecutors are required to hand over relevant material to defense attorneys prior to trial, a process referred to as “discovery.” Discovery is fundamental to a fair trial because it is impossible for defendants to make informed plea-bargain decisions if they do not know the strength of the evidence that prosecutors have against them. However, New York’s 2019 discovery statute, Criminal Procedure Law Article 245 (“245”), has crippled the state’s criminal justice system with an untenable compliance burden that prevents it from being either just or appropriately adversarial. It has forced district attorneys’ offices to triage cases and has harmed both the victims of crime and, in the long run, many criminal offenders. The NYS Legislature can correct the systemic harms caused by 245 and increase fairness to defendants, reduce administrative burdens on police and prosecutors, and rebalance risk so that the consequences of noncompliance align with substantive impacts on due process. New York’s new discovery rules, which went into effect in January 2020, were such an extreme and far-reaching version of “reform” that even famously progressive Manhattan District Attorney Alvin Bragg recently complained: “My Office’s lawyers and support staff continue their herculean efforts in managing discovery-related obligations.” The Legal Aid Society, which represents and advocates for criminal defendants, correctly crowed that, rather than simply reinforcing prosecutors’ discovery duties, as intended, 245 “is transforming New York State’s criminal justice system.” The new discovery obligations are indeed so herculean that NYS prosecutors have been able to meet them within the mandated time frames on only 21% of cases. In statewide local courts, they are met on 16% of cases, and in NYC local courts, that number dwindles to 13%. And because discovery must now be met within New York’s preexisting “speedy trial” time windows, on pain of automatic dismissal, thousands of viable cases have been thrown out—not because justice demands it but simply because the compliance burden has proved too great. In NYC courts, dismissals rose from 44% of all disposed cases in 2019, to 69% in 2021. Statewide, dismissals rose by 14% in that period. Meanwhile, guilty pleas fell in NYC from 45% to 21%—and statewide, from 49% to 33%—as defense attorneys have, correctly, become more confident that cases will be dismissed rather than go to trial.

New York: Manhattan Institute, 2023. 43p.