Tucked into the $220 billion state budget that passed this weekend was a revision in a state law that will make it rarer for criminal cases to get tossed out when prosecutors fail to turn over evidence.
The change gives judges more discretion over whether to dismiss criminal cases when prosecutors don’t follow discovery rules. It also clarifies what material they must turn over.
It follows major reforms in 2020 that significantly tightened the rules around evidence. Many prosecutors complained the original law went too far, saying some defendants got their charges dismissed because of minor paperwork errors.
“When a dismissal happens, now you have a victim who's left without justice, and the system doesn't work,” said Tony Jordan, District Attorney in upstate Washington County and president of the District Attorney Association of New York. “It ought not be a gotcha system.”
Defense attorneys say such dismissals are rare, but Jordan, a Republican, says they happened frequently enough that prosecutors had to guard against them by hunting down even inconsequential pieces of evidence. This was especially onerous for large, downstate counties.
“When you have a monolith, like the NYPD and labs and reports,” Jordan said, “everything became litigation over ‘Did you give me that one page of the notebook?’”
The new law allows judges to decide whether a prosecutor who failed to turn over evidence made the mistake in spite of due diligence and a good faith effort.
Lawmakers also passed legislation giving $65 million in new funding to help district attorneys from smaller counties to hire staff and buy the technology to manage what they say can be an overwhelming amount of evidence.
Criminal defense lawyers had pushed back hard against any changes to the 2020 discovery reforms. But in the end, they were mostly untroubled by the changes that were made.
Scott Levy, director of public policy at the Bronx Defenders, said Gov. Kathy Hochul’s initial proposal was much worse in his eyes. He said that version would have gutted speedy trial and discovery rights.
“That conversation was largely driven by fear, not facts. It was not driven by data or evidence, but politics,” he said.
