Discovering how to Deal with Discovery: Lessons from New York’s Reforms to Evidence-Sharing Practices
By Bryn Herrschaft-Eckman, Senior Research Associate
As part of the overarching goal of creating a fairer and more equitable criminal legal system, the 2019 New York Criminal Justice Reform Act made sweeping changes to how evidence was shared between prosecutors and defenders. Pulling from a process evaluation of its implementation, here are some recommendations for prosecutors to manage the shift.
Discovery is the process of sharing materials and evidence between prosecutors and defenders. It is a critical part of ensuring the criminal legal process is fair, transparent, and efficient, and that both the prosecution and the defense can effectively prepare for trial by accessing relevant case information. Historically in New York, it was not uncommon for defense counsels to receive discovery from the prosecution on the eve of trial. As a result, state discovery laws were widely referred to as “blindfold laws” because defense cases routinely had to be crafted without all of the evidence available to them. As part of the overarching goal of creating a fairer and more equitable criminal legal system, the 2019 New York Criminal Justice Reform Act—while also making changes to bail, pretrial services, and appearance tickets—created more prescriptive guidelines around discovery procedures, requiring a broader scope of information to be shared among stakeholders earlier in the case – or risk case dismissal. This dramatically changed the policies, practices, and procedures.
The 2019 New York Criminal Justice Reform Act . . . created more prescriptive guidelines around discovery procedures, requiring a broader scope of information to be shared among stakeholders earlier in the case – or risk case dismissal.
Reform Requirements Overhauled Prosecutorial Practices
For the past three years, CUNY ISLG has been studying implementation of the Act, gathering on-the-ground perspectives from the stakeholders responsible for putting the policy into practice. As detailed in CUNY ISLG’s latest fact sheet, Reform in Action: Discovery & Evidence-Sharing, the legislative provisions exponentially increased the volume of discovery that district attorney’s (DA’s) offices had to turn over to defense attorneys. Though discovery changes impacted law enforcement and public defenders as well, staff in DA’s offices across the state discussed several implementation challenges that compounded their day-to-day practice in both anticipated and unanticipated ways.
As a result of these monumental shifts, DA’s office staff expressed increased concern that they were now spending the majority of their time tracking down discovery and less time preparing cases and advocating for victims and communities. This increase in paperwork and the volume of discovery required to be shared in compliance with the legislative provision led to detrimental impacts on the morale of staff, leading to staff burnout and retention issues. Additionally, many offices felt they did not receive ample funding[1] to make the appropriate staff hires to meet increased demand, or felt they were by unable to hire new staff due to competition from employers who offered remote work options after offices began to reopen after COVID-19 lockdowns.
The discovery provisions remained an area of substantial gaps and significant challenges for prosecutors in the months and years after the initial reform rollouts in 2020. Prosecutors continue to grapple with the volume of discovery required by the legislation, and a commonly noted criticism of the law during our interviews with prosecutors included a perceived increase in dismissal due to missing discovery that may not necessarily add to the strength of evidence in the case. However, in the face of these challenges, certain DA’s offices were able to implement innovative strategies to address the changes to discovery policies that were helpful in managing discovery workloads and, in turn, addressing staff burnout and morale.
Recommendations to Create Better Practices
The recommendations below draw on specific lessons from the experiences of prosecutors in New York in grappling with implementation challenges. They can be used as a guide for local-level practitioners and stakeholders in New York as they continue to address the challenges posed to prosecutors with discovery reform as well as for other jurisdictions across the country tasked with implementing similar changes to the discovery process. CUNY ISLG will be releasing a final report later this month that provides additional recommendations for state-level partners drawing on our work over the past three years.
Create or enhance positions for specialized staff to assist with expanded discovery workloads
For prosecutor’s offices handling an increase in discovery volume, creating specialized positions such as “discovery expediters” are essential in not only assisting with the increased demand and workload but also in reducing burnout and improving morale for current staff. These specialized staff can be dedicated to processing the increased volume of discovery necessary under the new legislation, allowing Assistant District Attorneys (ADAs) to dedicate the majority of their time to case preparation and victim advocacy instead of gathering paperwork to comply with discovery requirements. Though resources and funding for these additional positions were a challenge, some agencies looked across their existing staffing lines and shifted resources to ensure that these types of mechanisms, critical to getting the necessary work done, were funded.
Formalize a process to prioritize stronger cases and divert others to free up limited prosecutorial resources
Setting up processes to triage and prioritize cases can help DA’s offices increase efficiency and reduce caseloads without risking community safety. Reconsidering these types of strategies was important in the face of discovery reform, as it significantly expanded the number of cases that needed to be “trial-ready” and forced prosecutors to prioritize the cases they did not want to risk being dismissed because of missed discovery requirements. Efforts to triage cases also follow trends among DAs who are shifting office culture away from conviction as the main measure of success and focusing prosecutorial strategy on the cases that cause the most harm.
Setting up processes to triage and prioritize cases can help DA’s offices increase efficiency and reduce caseloads without risking community safety.
These strategies can be operationalized through early case assessment units that screen all arrests referred to the DA’s office and determine which cases should be pursued. This process has been found to be effective in eliminating weaker cases, accelerating case processing, and, as a result, saving court resources.[2] Assessment units can also make decisions to divert cases pre-arraignment – seeking alternative programs for eligible individuals with more limited criminal histories or specific charges such as cases involving substance use. Studies have shown that not formally prosecuting people arrested on low-level, nonviolent misdemeanors can lead to a decrease in the likelihood of future contact with the criminal legal system—as well as improved community safety.[3] These diversion efforts are designed to off-ramp lower-level cases, leading to a reduction in case processing demands at DA’s offices. Through both early case assessment and diversion of lower-level cases, prosecutors can prioritize their resources, focusing their efforts on gathering and sharing all of the necessary discovery for the most serious cases that pose the greatest harm to the community.[4]
[1] The Recent FY 2024 Budget includes significant funding to support the implementation of discovery reform for both prosecutors and defenders to the tune of $170 million, including $50 million for discovery technology improvements in New York City specifically.
[2] Early Case Assessment – An Evaluation (New York: Vera Institute of Justice, 1975), https://www.vera.org/publications/early-case-assessment-an-evaluation
[3] Agan, A., Doleac, J.L., & Harvey, A, Misdemeanor Prosecution (Cambridge, Massachusetts: National Bureau of Economic Research, 2022), https://media.wbur.org/wp/2021/03/SCDAO-Misdemeanor-Prosecution-Report-1.pdf
[4] Prosecutorial Diversion Literature Review – Bibliography (Research Triangle Park, North Carolina: Innovation Prosecution Solutions & RTI International, 2020), https://innovativeprosecutionsolutions.org/wp-content/uploads/2020/09/Literature-Review-on-Prosecutor-Led-Diversion.pdf
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