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New discovery law not ready for court


With the recently enacted changes to its discovery law, New York is about to join 46 other states in the adoption of open-file discovery in criminal court cases. As the first major update in the state’s discovery laws since 1979, change is welcome. But the changes taking effect on Jan. 1 risk imposing an enormous unfunded mandate on local law enforcement agencies without necessarily helping defendants. Rather than leveling the playing field, as the law’s supporters intended, the law, as currently written, may merely tilt the field in a different direction.

What most Americans know of jurisprudence they glean from television shows like “Law & Order,” “Blue Bloods” or “Judge Judy.” There, litigation appears relatively straightforward, with simple rules of evidence and procedure.

In reality, many court cases more nearly resemble chess matches, and assessments of risk and reward may sometimes have relatively little to do with a particular case. For example, prosecutors may need to estimate how the sharing of evidence in one case may affect other cases or conviction rates in general. Or prosecutors and defense attorneys alike may need to consider the possibility of establishing unfavorable precedents.

Discovery has a long history in English and U.S. common law, but before the advent of open-file in the 1970s, statutes in most states were based on the 1963 U.S. Supreme Court ruling Brady v. Maryland. According to that decision, the prosecution is required to provide the defense with any exculpatory evidence in its possession. The defense may also request additional information on a piece-by-piece basis, but the prosecution has no obligation to share any other evidence it has collected unless ordered to do so. It is up to the defense to file motions for anything it believes the prosecution has. Thus, defendants have no accurate way of assessing the strength of the case against them, except by the nature of any plea deal that the prosecution may offer.

In principle, open-file discovery aims to remedy this defect by ensuring that both sides have access to all the available evidence and have a full view of the case.

Unfortunately, few of the statutes as they currently stand — including New York’s — achieve anything like equality. And they impose requirements on law enforcement agencies that would likely result in enormous expense, assuming those agencies were able — or willing — to collect all the available evidence.

The New York statute requires most evidence to be turned over to the local district attorney in time frames ranging from 48 hours to 30 days, after indictment or arraignment, depending on the category of evidence. But it does not include any mechanism for ensuring that all the evidence is collected, or that the evidence collected includes all — or even any — exculpatory evidence.

The temptation here is obvious. Duke University Law School Professor Ben Grunwald, writing in the Connecticut Law Review in 2017, suggested that some agencies might opt to under-collect in order to comply with their states’ statutes. He further wrote that prosecutors might resort to such strong-arm tactics as the use of “exploding” plea agreements — agreements that expire before the discovery period runs out — because of the time constraints.

And according to Grunwald, no accurate data exists to show clearly whether defendants do better under open-file statutes than under Brady. But substantial anecdotal evidence suggests that conviction rates remain roughly similar, he writes. The two sides simply face different sets of hurdles under open-file in getting to their desired finish lines.

In Nassau County, Freeport Mayor Robert Kennedy and District Attorney Madeline Singas have both commented on the huge potential increase in the cost to law enforcement when the statute takes effect next year. The Grunwald report bears out their fears, citing one North Carolina case in which more than 10,000 separate text messages had to be logged as evidence and collated as part of discovery.

The issue is further complicated in New York by the recent enactment of a statute abolishing cash bail for most nonviolent crimes. While the new law provides welcome relief, especially for low-income or indigent defendants, offers that avoid or reduce jail time have been among the most potent inducements at a prosecutor’s disposal.

It is clear that New York’s discovery laws needed updating. But problems with the statute itself, and the speed with which it is being imposed on police departments already burdened with rising costs, suggest that lawmakers should have taken more time to craft the statute and given local agencies more lead time in its implementation. It is a good idea, poorly executed.