Gov pitches discovery reform changes during State of the State
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Governor Kathy Hochul proposed a series of changes to New York’s discovery laws during her State of the State address on Tuesday. Photo by Darren McGee/ Office of Governor Kathy Hochul
By Jacob Kaye
Governor Kathy Hochul proposed a series of changes to the state’s discovery reforms during her annual State of the State address Tuesday.
Repeating a complaint often lodged by prosecutors about the 2019 reforms to the state’s discovery laws, Hochul said that it’s time New York lessened the consequences for district attorneys who miss their evidence-sharing deadlines.
As the law currently stands, cases are too often thrown out on technicalities related to discovery errors by prosecutors, Hochul claimed.
“I'll fight to finally close those loopholes that were created in our discovery laws that delay trials and lead to cases being thrown out on minor technicalities,” Hochul said.
Hochul’s proposals serve as her latest attempt to modify the discovery laws which were passed alongside a similarly controversial package of bail reforms in 2019. Both reforms went into effect in 2020, a little more than a year before Hochul assumed the governor’s office.
In almost all of her years as governor, Hochul has worked to change elements of the reforms in ways that were lauded by prosecutors and law enforcement, and condemned by criminal justice advocates and public defenders who say the governor’s efforts have stripped the reforms of their purpose. The sentiment from advocates was no different on Tuesday.
Public defense firms, who earlier in the week launched a coalition to protect the reforms in anticipation of Hochul’s proposals and potential further proposals from lawmakers, said if enacted, the changes to discovery reform outlined by Hochul on Tuesday would trample over defendants’ right to a fair trial.
As part of her proposal, Hochul pitched partially disconnecting discovery violations from the speedy trial clock.
Currently, if a defendant successfully challenges a prosecutor’s discovery compliance, the time between the certification of compliance and the challenge is retroactively counted against the prosecution’s speedy trial clock. With the added time, there is a chance the case could be dismissed for a speedy trial violation.
“This loophole inadvertently incentivizes delays in order to have cases easily thrown out on technicalities,” the governor’s State of the State book read.
To address the “loophole,” Hochul said the law should be changed “to ensure that a discovery error is addressed in a manner proportional to the discovery error itself rather than as a technical mechanism to have an entire case dismissed.”
“These changes will promote timely review that will improve case processing times, reduce delays that keep individuals incarcerated pre-trial, and prevent dismissals based on technicalities that deny justice for victims and the people of the State of New York,” Hochul’s State of the State book read.
The governor also proposed making a series of changes to the process for obtaining, submitting and sharing discovery.
Hochul said she’d propose to lawmakers a tweak to the laws that would allow for the automatic redaction of sensitive information in discovery documents, including a witness’ address and personal data unrelated to the case. As it currently stands, getting permission to redact information in discovery documents can sometimes turn into a lengthy litigation process.
The governor also said she wants to change the required amount of time before prosecutors can present a defendant’s statements to a grand jury. Currently, prosecutors need to provide a 48-hour notice before the presentation of a defendant’s statements to a grand jury. Hochul wants to cut the notice time down to 24 hours.
In explaining the change, Hochul cited the fact that not all counties in New York have five-day grand juries
“These changes will ensure procedural fairness, streamline case processing, and safeguard sensitive information,” Hochul’s State of the State book read.
The governor’s proposals found a fan on Tuesday in Mayor Eric Adams, who has said in recent weeks that he would push lawmakers to make changes to the discovery reforms during the 2025 legislative session.
“Governor Hochul and our administration agree that we must make changes to the criminal justice system to prevent repeat offenders from doing further harm to our communities,” Adams said in a statement. “We are asking for real change through discovery reform to preserve the best parts of the 2019 reforms, while reducing undue burdens on our prosecutors, so we can speed up criminal cases, achieve swift and fair justice, and keep recidivists from repeatedly endangering New Yorkers.”
Queens District Attorney Melinda Katz also applauded Hochul for the proposals.
“The governor’s common-sense proposals will ensure that defendants continue to receive discovery early in the pendency of case, while ensuring that fewer cases are dismissed due to technicalities that have nothing to do with the merit of the prosecution,” Katz said in a statement to the Eagle.
Prosecutors, including Katz, have long argued that the reforms to discovery have led to an increase in case dismissals.
In 2019, around 2,570 cases in New York were dismissed by judges for speedy trial violations, according to Office of Court Administration data. That number jumped to 3,889 in 2023, the most recent year data is available.
In addition to data collected by OCA, the state’s Division of Criminal Justice Services also collects data on case dismissals. While the numbers vary, generally speaking, DCJS numbers also show an increase in case dismissals post-reforms.
However, OCA data also shows that indicted felonies, the most extreme cases, have maintained a relatively similar dismissal rate since the reforms went into effect.
Citing the data and changes made to the law over the years, public defense groups and advocates on Tuesday said the governor’s proposals are not justified.
“Despite the claims outlined in the governor’s proposal, there are no loopholes or provisions allowing for meritless dismissals based on technicalities,” Brooklyn Defenders said in a statement. “Any attempts to shift the burden to the defense or to eliminate enforcement of prosecutors’ obligations will bring us back to an era of coerced pleas, wrongful convictions, and pre-trial delays.”
The Legal Aid Society, which launched the “Alliance to Protect Kalief’s Law” on Monday, said the proposed changes aren’t needed because current discovery law allows for prosecutors to miss deadlines, as long as they weren’t diligently attempting to meet them.
Diligent prosecutors are not penalized for inadvertent mistakes, and reopening the discovery debate serves only to distract us from addressing the known drivers of violence in our communities and the proven solutions to combat them: access to stable and secure housing, as well as community-based health and mental health services,” a spokesperson for the public defense firm said in a statement.
