New York’s Top Court Leaves Questions Unanswered on Discovery Laws

A recent decision by New York’s high court about the state’s “discovery reform” law is being touted as a win for people facing trial across the state. But the unanimous and fairly narrow opinion issued in People v. Bay leaves open questions, including when a prosecutor’s delay in sharing evidence with the defense should result in the case’s dismissal.

The case concerns the application of a 2020 law changing the discovery process in New York criminal cases. “Discovery” is the process through which litigants exchange information. In a criminal case, it is how defense attorneys and their clients learn what proof prosecutors may offer at trial — giving them a chance to evaluate the strength of the case and make critical strategic decisions. In turn, defense attorneys will provide prosecutors reciprocal discovery, usually an indication of any potential defenses they might offer at trial.

Prior to 2020, New York operated under the “blindfold law” — a reference to the fact that prosecutors could wait until the eve of trial to disclose important evidence. This often meant that New Yorkers had to make a choice: accept a plea offer without seeing all the evidence against them or risk going to trial and facing stiffer penalties, referred to as the “trial penalty.” Defense attorneys were also required to make written motions to obtain evidence. (Some prosecutors’ offices were more open with discovery as a matter of practice, but it varied widely depending on jurisdiction.)

The discovery reform law, which went into effect on January 1, 2020, put New York on par with 46 other states operating under an “open file discovery” system. Under the new law, prosecutors must turn over all materials “that relate to the subject matter of” the case within a specified time period. Prosecutors are then required to file a “certificate of compliance” stating that they have exercised “good faith and due diligence” in gathering and disclosing the evidence. That includes a good faith effort to determine whether discoverable items exist and to obtain them if they are not already in the prosecutor’s possession. The law deems records of law enforcement agencies, like police, to be in the prosecutor’s possession, but prosecutors must coordinate with those agencies to obtain them.

Critically, the new legislation tethered discovery compliance to a defendant’s “speedy trial” rights — that is, they are entitled to have the case against them dismissed if it is not prosecuted within a specific period. A properly filed compliance certificate “stops the clock,” preventing a case from timing out on speedy trial grounds. But a defective certificate, such as one filed before all evidence is turned over, does not, even if discovery is only later determined to have been incomplete. As a result, discovery errors or misconduct that invalidates a previously filed certificate of compliance can, in some cases, risk dismissal of the case on speedy trial grounds. (Other remedies for noncompliance exist, but only apply in the rare case where there is an error before the speedy trial clock expires.)

How courts should evaluate certificates of compliance and late disclosure of discovery is at the heart of Bay.

The defendant, Michael Bay, was arrested in Cortland, New York, for harassment based on a domestic violence incident. The prosecutor turned over discovery to the defense and filed a certificate of compliance and statement of trial readiness. Defense counsel then asked for the recording of a 911 call and specific police paperwork, both of which are commonplace in most criminal cases. The prosecutor said that those items did not exist, and the judge accepted that assurance.

But both did in fact exist. The prosecution provided the defense attorney with the previously requested police paperwork and 911 call recording one week before the scheduled trial date.

Bay’s attorney quickly moved to dismiss the case, arguing that the late disclosure rendered the prosecution’s previously filed certificate of compliance invalid, or “illusory,” and that it had therefore failed to stop the speedy trial clock. Because the time had now expired, the attorney argued, moving forward would violate Bay’s speedy trial rights. Cortland City Court denied the motion, Bay was found guilty, and Cortland County Court affirmed on appeal. The county court reasoned that the prosecution did not know about the missing items when they filed their certificate, and therefore the prosecution’s statement of readiness was not filed in “bad faith.” The items were also not used by either side at trial and the defense did not claim the late disclosure impacted their case.

On December 14, 2023, New York’s highest court reversed, issuing a unanimous decision that dismissed the case on speedy trial grounds. The court reasoned that prosecutors failed to show that they had exercised “reasonable diligence” and made reasonable efforts to identify everything that the defendant was entitled to under the new discovery law — including the 911 call and related documentation. Importantly, the court found that the prosecution was unable to demonstrate the steps taken to determine whether the evidence the defense requested did exist. Therefore, the certificate of compliance was not proper when it was filed, the statement of trial readiness was illusory, and the speedy trial clock had never been stopped.

Critically, the court made clear that dismissal is not required for every belated disclosure. “There is no rule of ‘strict liability,’” the court said, as the discovery law does not “require or anticipate a ‘perfect prosecutor.’” Instead, what matters is the prosecution’s due diligence in identifying and disclosing discovery items before filing a certificate of compliance. Where that diligence is absent, or unclear, good faith alone cannot compensate, nor can timely post-certification disclosure.

The decision also highlighted that the trial court had a responsibility to facilitate compliance with these new discovery obligations. In particular, the court should have ensured that defense inquiries about discovery obligations were adequately addressed and documented in open court.

That theme also arose in oral argument, where the judges noted that there was little evidence in the record describing what prosecutors had done to obtain discovery. In its decision, the court restated those concerns, noting that without this evidence they could not determine whether prosecutors had exercised due diligence and made reasonable inquiries. Prosecutors should, the court said, make a clear and detailed record in the lower court detailing their efforts to uncover evidence that the defense might need.

Bay is already reshaping how discovery practice works in the state. Defense attorneys view it as a win: a case binding on trial courts that explicitly states that a prosecutor cannot rely on good faith alone. The court’s clear instructions about what prosecutors should have done in the case are also likely to shape how prosecutors think about — and document — the work of collecting and sharing evidence to which the defense might be entitled.

The guidance provided in Bay on how the discovery law should be applied was sorely needed, but many questions remain. In the run-up to oral argument, advocates from multiple organizations submitted briefs, with one noting that “the statutory scheme change has produced a litany of conflicting and contradictory cases all over New York State with still only limited appellate authority.” In that context, Bay did not offer a bright line rule for what is or is not diligence on the part of prosecutors; rather, the court reasoned that this requires a case-by-case analysis by the trial court judge. Nor did the court explain what it means for something to “relate to the subject of matter of the case.”

Another open question involves jurisdictions where the sharing of documents between law enforcement agencies and prosecutors has been automated in order to streamline the process. How do prosecutors document their diligence in cases where discovery is shared automatically, not at the request of the prosecutor?

Time will tell how Bay impacts those cases, and others across the state. But it is surely not the last time the New York high court will be asked to weigh in on discovery issues.

Brianna Seid is a counsel at the Brennan Center for Justice.