New York Legislature. Photo Credit: Shutterstock

New York legislators are pushing a new proposal to reform the state's laws on discovery that would establish a stringent schedule for prosecutors and defense attorneys to exchange evidence and material they intend to use at trial early on in a criminal proceeding.

The bills contains most of the provisions Gov. Andrew Cuomo included in his executive budget last week that would update the state's decades-old laws on discoverable material, which can currently be withheld from defendants until just days before their trial.

The bill is sponsored by Assemblyman Joe Lentol, D-Brooklyn, and State Sen. Jamaal Bailey, D-Bronx. Both lawmakers chair their respective Codes Committee, which typically reviews legislation involving criminal justice reform before it heads to the floor for a vote.

Bailey said the legislation will benefit both prosecutors and defendants by moving criminal cases forward while allowing open disclosure of discoverable material.

“The earlier we get relevant and discoverable information in the hands of a defendant, they can either know that there's no case against them and they can proceed toward a path to getting it dismissed, or there is evidence that they may have committed a crime,” Bailey said.

Instead of being under the prosecutor's discretion, most material intended to be used at trial would be due to the defense within 15 days of an individual's arraignment. The prosecution will then have to file a certificate of compliance with the court. At that point, the defendant will have 30 days after the prosecutor has filed the certificate to disclose any material they intend to present at trial.

Additional discovery would then be due to the defendant no later than 15 days before a trial is scheduled to begin, according to the bill. Prosecutors would also not be deemed ready for trial by the court until after they file their certificate of compliance.

Those deadlines currently don't exist in state law. Prosecutors have to automatically provide material to the defense that could help their case against charges, but all other material can be withheld until just days before trial.

“New York for too long has had a 'hide the ball' strategy that unnecessarily delays criminal cases,” Lentol said. “It is time to remove the blindfold and resolve cases fairly.”

There have been concerns in the past from opponents of discovery reform about the vulnerability of some discoverable material, such as witness information, that they have argued could be tampered with ahead of trial. If a defendant has details on a witness, for example, they may seek out that person, opponents have argued.

The new bill would allow prosecutors or the defense to seek a protective order from the judge in a case if the release of information would result in physical injury, harassment, or reveal the identity of an undercover police officer, Lentol said. That builds on existing laws with felony charges for witness intimidation and tampering.

Other areas that have implemented discovery reform haven't seen an uptick in those problems, Lentol said. The Brooklyn District Attorney's Office has already reformed its own policies on discovery, sharing information with defendants early on in cases.

“Other states—and some New York counties—provide broad discovery up front, without any increase in witness tampering or similar issues,” he said.

The bill has a few bonus provisions that are absent from Cuomo's proposal. Prosecutors would be required to disclose certain information in their possession at a defendant's arraignment, for example. According to the legislation, that could include police reports, witness statements, electronic recordings, and other material on hand at the time.

“By expediting discovery, both sides get a clearer view of the strengths and weaknesses of the other's case,” Lentol said. “This will facilitate fair results.”

It would also allow either side to conduct a pretrial deposition of an individual relevant to the case, like a police officer, expert witness, or someone who's expected to testify at trial. That deposition could then be used by either side to negotiate a plea deal or prepare their case. That provision was not included in Cuomo's proposal last week.

“We are hopeful that the governor will amend his proposal to include depositions and expand the provisions for discovery in negotiated plea cases,” Lentol said.

But, like Cuomo's proposal, lawmakers also included a provision that would allow defendants to consider all of the discoverable evidence against them before they agree to a plea deal. That's not currently allowed. Bailey said the provision will give defendants the tools to choose their best path forward.

“There's the potential for them to be able to plea, but being able to plea with information as opposed to pleading blindfolded,” Bailey said. “The majority of our cases are resolved via plea rather than trial. It would be helpful for defendants to know exactly what they're pleading to.”

While many of the reforms align with what Cuomo included in his state budget proposal, Bailey said he's planning to push for the bill to be passed outside of the spending plan, which is due at the end of March. That would allow the reforms to begin sooner. The bill would enact the changes 90 days after it's signed into law, according to the legislation.

“In the past we've had to get this done in the state budget because of the state Senate, but I'm hopeful that we can get these things done legislatively,” Bailey said.

The District Attorneys Association of the State of New York, which represents the legislative priorities of the state's prosecutors, did not offer comment on the bill.

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