The Need for Discovery Reform in New York to Protect Survivors of Sexual Assault and Domestic Violence and other crime victims

Lesley Brovner & Mark Peters
April 25, 2025

As of this writing, New York State’s budget is now 20 days overdue. The hold-up is less about money and more about changing the State’s discovery rules when it comes to criminal cases. Several years ago, the State changed the laws and put very onerous burdens on prosecutors. The goal was increased transparency and fairness in the criminal justice system. Unfortunately, the results were a far less just system. The results have been multiple serious crimes going unpunished because DA’s Offices have made minor technical (and non-prejudicial) errors in the discovery process. Other cases went unprosecuted because DA’s Offices lacked the resources to keep up with the massive new discovery obligations. Multiple DA’s, as well as advocates who fight on behalf of crime victims, have been lobbying for changes to increase justice in the system. Peters Brovner stands with the prosecutors and advocates.

What is Discovery?

Discovery is the process by which each side in a legal action — whether criminal or civil — must provide information (primarily documents and testimony) to the other side. In the criminal context, the prosecutor’s office has a legally mandated obligation to provide a wide range of evidence, including any evidence the prosecutor or the police have that could be exculpatory. This is designed to ensure that defendants have a full and fair opportunity to defend themselves at trial and to give the defendants sufficient information to determine if they want to take plea deals.

What happened when Discovery was reformed in NYS in 2020?

In 2020, NYS radically altered its discovery laws. While these changes may have been made with good intentions, they are deeply problematic. The changes made included:

  • The amount of information/number and types of documents that prosecutors were required to hand over dramatically increased.
  • The timeline for producing those documents was radically decreased.
  • The consequences for failing to hand over those documents became far more dire and has often included outright dismissal of the criminal charges.
  • Information on witnesses that was required to be handed over was expanded and prosecutors were required to do searches to find information that was not in their possession.
  • Prosecutors were required to give defense counsel the ability to contact their witnesses, as part of the initial discovery.

What were the problems with Discovery Reform?

Discovery is important and defendants must have the information needed to defend themselves. However, the discovery reforms noted above have placed tremendous new burdens on prosecutors and have had negative consequences.

Specifically, the 2020 discovery reform significantly increased prosecutors’ discovery obligations without providing resources with which to meet them. It has often proven impossible for prosecutors to meet the new requirements, especially given the shortened timeframes imposed for producing all of the new material. Because prosecutors were not allotted sufficient resources to manage the new onerous rules, too many cases went unprosecuted.

The resulting problems included:

  • Neither the prosecutors nor police were properly prepared and staffed to produce all the material that they were now required to produce. Nor were defense counsel prepared to receive the information. There was a massive amount of data that had to be either physically or electronically transmitted to the defense counsel. This required systems that were not in place; moreover, defense counsel were often unprepared to receive the information so that at times the information, after being sent, was kicked back to the prosecutors.
  • No one was prepared for the amount of time it would take to redact the private information of witnesses from discovery documents and videos and recordings.
  • It became virtually impossible to go forward with misdemeanor cases – some of which are quite serious – because of the short time allowed to produce the information and the sheer number of misdemeanor cases.
  • Additionally, because this discovery was required before pleas could be taken unless that requirement was waived by defense counsel, fewer pleas were taken, and more cases were dismissed.
  • Furthermore, prosecutors had very little time to prepare for trials because they needed to spend so much of their time dealing with discovery. Therefore, they did not have time to investigate and try the same number of cases as before discovery reform, which led to defendants getting more generous plea offers and more cases being reduced to misdemeanors and then dismissed.

What is the current state of Discovery Reform?

The State Legislature initially dropped from their budget bill proposed changes that would have prevented the dismissal of sexual assault and domestic violence cases (among others) simply because prosecutors missed a deadline to provide discovery.

The proposed changes would have avoided the dismissal of cases where prosecutors exercise “good faith and due diligence” in their discovery obligations, even if additional discovery is later unearthed. While dismissal would still be an option – especially where the prosecutor does not act in good faith – judges would have greater flexibility to render more appropriate penalties. Further, the changes would eliminate some of the gamesmanship of discovery by limiting defense counsel to 35 days in which to object to discovery productions, so that they cannot run out the clock and only object after the time for a “speedy trial” has passed.

What is needed now?

The legislature should act to protect crime victims, including survivors of sexual assault and domestic violence, by revising this harsh, dangerous and unjust provision in the law.

  • Prosecutors need more time to provide discovery.
  • Prosecutors need more resources to provide this discovery.
  • The sanctions should be modified such that good cases are not dismissed based on technical violations of the rules.

Peters Brovner stands with advocates calling for reform to New York State’s criminal discovery laws in light of their harmful impact on crime victims, including the survivors of sexual assault and domestic abuse.