'Discovery' is a key issue holding up NYS budget talks: Here's what to know about it
The New York State Capitol in Albany is seen on Feb. 25, 2024. A debate over the “discovery” law — an element of criminal trials — is one of the main stumbling blocks for New York lawmakers trying to settle the state budget for the year. Credit: Newsday/Thomas A. Ferrara
ALBANY — It’s not strictly a dollars and cents issue, but the debate over “discovery” — an element of criminal trials — is one of the main stumbling blocks for New York lawmakers trying to settle the state budget for the year.
It’s also tied to an increase in criminal cases being dismissed overwhelmingly driven by the five boroughs of New York City, statistics show — because prosecutors could not meet speedy trial requirements.
Here’s a look at what the issue is, its political importance and history, and where Gov. Kathy Hochul and state legislators are on the issue:
Q: Lawmakers keep saying they are stalled over “discovery.” What are they talking about?
A: Discovery refers to the investigation of evidence — and the sharing of the evidence — in a criminal proceeding. The American Bar Association describes it as the “formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.”
Q: Why would prosecutors and defenders share evidence?
A: "Discovery enables the parties to know before the trial begins what evidence may be presented. It is designed to prevent ‘trial by ambush,’ where one side doesn’t learn of the other side's evidence or witnesses until the trial, when there’s no time to obtain answering evidence," according to the American Bar Association.
Practically speaking, the exchange also can help the two sides reach a resolution before the case even heads to trial. A prosecutor might realize the charges don’t withstand scrutiny. A defendant might realize cooperating and bargaining is the best option.
It’s important to know that, despite the impression television might give, very, very few cases actually go to trial.
Q: What’s the New York history on this?
A: For years, defense attorneys say, district attorneys too often waited until the eve of a trial to turn over materials, handicapping a defendant’s ability to decide whether to plea bargain or go to trial.
New York overhauled its discovery law in 2019, along with other criminal justice changes. The new law makes prosecutors share evidence sooner and, practically speaking, ties their discovery obligations to speedy trial guarantees — a trial within 90 days for most misdemeanors and six months for many felonies.
The issues are linked because prosecutors must certify they have turned over all required materials and are ready for trial. If a defense attorney shows that’s not true, prosecutors must correct the error.
Sometimes, judges will dismiss a case because it becomes obvious the prosecutor can’t correct the error and begin the trial in time to meet speedy trial requirements. Or prosecutors themselves will acknowledge this.
As a result, prosecutors say they have dismissed thousands of low-level cases when they recognized speedy-trial requirements would not be met.
Q: How many dismissals?
A: There was a huge increase from 2021 to 2022 — the statewide total almost doubled. But along with discovery changes, a pandemic backlog of cases and staffing issues are said to have been factors.
Since then, growth has begun to level off, though there are still increases. And geography plays a big role in the issue — 94% of the state’s increase in 2024 occurred in the five boroughs of New York City.
Keep in mind that most dismissals aren’t related to speedy trial considerations. Charges can be dropped for a variety of reasons.
Q: What are the details about the geographic differences.
A: In New York City, 27% of the dismissals in 2024 were due to the speedy trial law, according to the state Office of Court Administration.
In the rest of the state? It was 2%.
That’s a rate that has held steady since 2021.
In Suffolk County, it was 2%. In Nassau County, it was 2%. In Westchester, it was 4%.
It’s perhaps no surprise that New York City prosecutors have led the charge for amending the discovery law.
Q: What’s happening now politically?
A: Hochul has pushed to give prosecutors more leeway. Among the ideas floated have been limiting the window for defense attorneys to file objections about discovery or pausing the speedy-trial clock when a defense motion is filed.
Another idea is to specifically ask judges to weigh the “harm” a discovery mistake makes on a person’s case. Another is to say prosecutors must turn over material that is “relevant” to a case rather than all material “related” to a case.
Q: What are the Senate and Assembly saying?
A: They say they don’t want cases dismissed on technicalities, but they also don’t want to give back all the leverage to prosecutors.
“What we’re grappling with is setting a standard that doesn’t allow people to go free who deserve to be incarcerated, but also ensures due process,” Senate Deputy Majority Leader Michael Gianaris (D-Astoria) said. “Because if we create a system where there are no consequences for the withholding of key evidence, then we’re going to have innocent people thrown in jail.”
Q: How are talks progressing?
A: Slowly, but it seems to focus on key pillars such as good faith, due diligence and harm.
That means a district attorney’s office must act in good faith to investigate and share the evidence and must take due diligence to show it undertook an earnest and energetic effort to share the evidence.
In 2023, New York’s highest court upheld the discovery law in People v. Bay, the first such case to come before it, saying prosecutors need not be perfect but must demonstrate due diligence. In that case, a prosecutor had said a 911 call did not exist only to later admit the opposite.
Harm is about whether an omission of evidence has hurt the accused's ability to defend himself in court. And it is perhaps the key focus of talks, according to sources.
Sources say talks center on codifying the court’s Bay ruling while perhaps adding a provision to expressly direct judges to weigh whether a discovery error imperils a person’s ability to present a defense.
ALBANY — It’s not strictly a dollars and cents issue, but the debate over “discovery” — an element of criminal trials — is one of the main stumbling blocks for New York lawmakers trying to settle the state budget for the year.
It’s also tied to an increase in criminal cases being dismissed overwhelmingly driven by the five boroughs of New York City, statistics show — because prosecutors could not meet speedy trial requirements.
Here’s a look at what the issue is, its political importance and history, and where Gov. Kathy Hochul and state legislators are on the issue:
Q: Lawmakers keep saying they are stalled over “discovery.” What are they talking about?
A: Discovery refers to the investigation of evidence — and the sharing of the evidence — in a criminal proceeding. The American Bar Association describes it as the “formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.”
Q: Why would prosecutors and defenders share evidence?
A: "Discovery enables the parties to know before the trial begins what evidence may be presented. It is designed to prevent ‘trial by ambush,’ where one side doesn’t learn of the other side's evidence or witnesses until the trial, when there’s no time to obtain answering evidence," according to the American Bar Association.
Practically speaking, the exchange also can help the two sides reach a resolution before the case even heads to trial. A prosecutor might realize the charges don’t withstand scrutiny. A defendant might realize cooperating and bargaining is the best option.
It’s important to know that, despite the impression television might give, very, very few cases actually go to trial.
Q: What’s the New York history on this?
A: For years, defense attorneys say, district attorneys too often waited until the eve of a trial to turn over materials, handicapping a defendant’s ability to decide whether to plea bargain or go to trial.
New York overhauled its discovery law in 2019, along with other criminal justice changes. The new law makes prosecutors share evidence sooner and, practically speaking, ties their discovery obligations to speedy trial guarantees — a trial within 90 days for most misdemeanors and six months for many felonies.
The issues are linked because prosecutors must certify they have turned over all required materials and are ready for trial. If a defense attorney shows that’s not true, prosecutors must correct the error.
Sometimes, judges will dismiss a case because it becomes obvious the prosecutor can’t correct the error and begin the trial in time to meet speedy trial requirements. Or prosecutors themselves will acknowledge this.
As a result, prosecutors say they have dismissed thousands of low-level cases when they recognized speedy-trial requirements would not be met.
Q: How many dismissals?
A: There was a huge increase from 2021 to 2022 — the statewide total almost doubled. But along with discovery changes, a pandemic backlog of cases and staffing issues are said to have been factors.
Since then, growth has begun to level off, though there are still increases. And geography plays a big role in the issue — 94% of the state’s increase in 2024 occurred in the five boroughs of New York City.
Keep in mind that most dismissals aren’t related to speedy trial considerations. Charges can be dropped for a variety of reasons.
Q: What are the details about the geographic differences.
A: In New York City, 27% of the dismissals in 2024 were due to the speedy trial law, according to the state Office of Court Administration.
In the rest of the state? It was 2%.
That’s a rate that has held steady since 2021.
In Suffolk County, it was 2%. In Nassau County, it was 2%. In Westchester, it was 4%.
It’s perhaps no surprise that New York City prosecutors have led the charge for amending the discovery law.
Q: What’s happening now politically?
A: Hochul has pushed to give prosecutors more leeway. Among the ideas floated have been limiting the window for defense attorneys to file objections about discovery or pausing the speedy-trial clock when a defense motion is filed.
Another idea is to specifically ask judges to weigh the “harm” a discovery mistake makes on a person’s case. Another is to say prosecutors must turn over material that is “relevant” to a case rather than all material “related” to a case.
Q: What are the Senate and Assembly saying?
A: They say they don’t want cases dismissed on technicalities, but they also don’t want to give back all the leverage to prosecutors.
“What we’re grappling with is setting a standard that doesn’t allow people to go free who deserve to be incarcerated, but also ensures due process,” Senate Deputy Majority Leader Michael Gianaris (D-Astoria) said. “Because if we create a system where there are no consequences for the withholding of key evidence, then we’re going to have innocent people thrown in jail.”
Q: How are talks progressing?
A: Slowly, but it seems to focus on key pillars such as good faith, due diligence and harm.
That means a district attorney’s office must act in good faith to investigate and share the evidence and must take due diligence to show it undertook an earnest and energetic effort to share the evidence.
In 2023, New York’s highest court upheld the discovery law in People v. Bay, the first such case to come before it, saying prosecutors need not be perfect but must demonstrate due diligence. In that case, a prosecutor had said a 911 call did not exist only to later admit the opposite.
Harm is about whether an omission of evidence has hurt the accused's ability to defend himself in court. And it is perhaps the key focus of talks, according to sources.
Sources say talks center on codifying the court’s Bay ruling while perhaps adding a provision to expressly direct judges to weigh whether a discovery error imperils a person’s ability to present a defense.
Picture-perfect adoptable pets ... Go fly a kite in Babylon ... Knicks Game 4 reaction ... Get the latest news and more great videos at NewsdayTV
Picture-perfect adoptable pets ... Go fly a kite in Babylon ... Knicks Game 4 reaction ... Get the latest news and more great videos at NewsdayTV
