New York Overhauls Pretrial Discovery Rules, Capital Region DA's Weigh In | WAMC

New York Overhauls Pretrial Discovery Rules, Capital Region DA's Weigh In

Sep 13, 2019

District Attorneys across New York state are preparing for changes involving pre-trial evidence rules that include requiring prosecutors to share information with the defense much earlier in a criminal case.

New York state lawmakers recently passed a major overhaul of laws specifying what evidence must be turned over to defendants facing criminal charges.

The tweaks to the discovery process accelerate the timeline for sharing evidence at the earliest stages of a case.

Schenectady County D.A. Robert Carney says D.A.'s are going to need to increase their budgets between 25 to 50 percent just to comply with the revised laws. And he's asking for another lawyer and two paralegals to be able to manage digital evidence.   "Automatic discovery means we  have to basically do everything we do  now when we try a case, compile all these records and documents that under current law we have to do just to actually try the case. But the law will require us to do that within 15 days of arrest in very single case. Now, we only try 5 percent of our cases. That means in 95 percent of our cases we aren't doing that work. But now, going forward, we'll have to do it in 100 percent of our cases. And it's not just a question of getting the file from police and turning that over, it means compiling scientific reports, expert testimony, things that ae just very labor-intensive. We live in a time where every case has digital evidence. We're having body cams worn by police officers, we have dash cams, we have surveillance cameras, we have cameras in interview rooms. All of that produces mounds of digital evidence that has to be reviewed and determined what its evidentiary significance is, watched by DA's ADA's in real time, and then that all has to be sent to the defense within 15 days of arraignment. It's just not possible to comply with that."

Carney argues the law came out of the state budget process without hearings or testimony and no recognition of the practical impact on prosecutor's offices.   "It's just not a good way to make policy. When you do something like that without talking to the people that are gonna have to implement it, and looking at the practicalities of the cost, and the amount of effort that has to go into doing it..."

Carney says if prosecutors don’t meet time restraints imposed by new discovery regulations, there are sanctions and a possible "speedy trial" dismissal.

Jennifer Laurin, a University of Texas law professor who studies discovery law, says until this change, New York state had the most-closed system that guaranteed the least access to information from the prosecution for the defense.  "And also distinctive and important is that New York's amended discovery laws include provisions requiring that that discovery be disclosed to the defense even before a plea. Whereas. in the past, a trial was contemplated as the place, point in time when discovery would be used."

Again, Carney:  "Theoretically under the law, somebody charged with a speeding ticket is entitled to automatic discovery of body cam footage of the office that issued that ticket. That means we somehow have to give body cam footage to everybody who gets charged with a traffic ticket and if we don't do it it's grounds to dismiss it because we failed to comply with discovery?”

Albany County D.A. David Soares says the challenge now for prosecutors and law enforcement across the state is merging the variety of different technologies that exist within each police department and local DA's offices.   "Take for example the SUNY case, the SUNY bus case that I think is a fairly popular one that people will recall. There was a call to a 911 center, and SUNY's campus falls within three separate jurisdictions.

CDTA Bus Fight: From 9-1-1 To Trial

So the call was made in Colonie, Colonie re-routes it to Albany and Albany re-routes it to the SUNY police on campus. And so we have to gather all of that data and turn that around. We also have to gather, if multiple agencies respond to one event, we have the obligation to turn over all of that information from the multiple agencies, which, I don't mean to sound as if I'm complaining, we're not. It's just a matter of having to find practical solutions for what is going to be a manpower challenge as well as technical challenge.”

Also under the changes, should a defendant facing felony charges be offered a plea deal, information must be shared at least three days before the defendant's deadline to accept that deal.

The new automatic discovery rules take effect January 1st