Legal Aid Lawyer's Thought-Provoking Essay On Lack Of Discovery In Criminal Cases In New York State Appears In The New York Law Journal
THURSDAY, MAY 16, 2013

Thomas M. O'Brien, a Staff Attorney in The Legal Aid Society's Criminal Practice Special Litigation Unit, is the author of a thought-provoking essay on the lack of discovery in criminal defenses cases in New York State. O'Brien's essay appeared in the May 6, 2013 issue of The New York Law Journal.

Prisoners of Discovery
Thomas M. O'Brien
New York Law Journal

It is well known that lawyers practicing criminal defense in New York State receive much less discovery than their counterparts in civil litigation. It is too little, and it typically comes too late. Delays in producing that discovery frustrate effective representation of criminal defendants in so many ways, from investigation to plea negotiation to trial preparation.

Discovery delay for the accused in a criminal case, especially when incarcerated pretrial, is far more onerous than delay for a civil litigant. The accused may spend extra weeks or months in jail because critical disclosure has been delayed by the prosecution.

The delay is the result of what has become the perverse interplay of two statutes intended to benefit criminal defendants. One is Article 240 of the Criminal Procedure Law, enacted to ensure a fair trial by providing the accused with some of the relevant information in the hands of the government. The other is CPL §30.30, the Speedy Trial Law, which requires the prosecution to be "ready" for trial within 90 days, for a misdemeanor, or six months, for a felony. The legislative purpose was that each person accused of a crime would have a prompt trial with at least some information about the prosecution's case.

The reality has drifted far from that goal. The New York Law Journal reported this year that the Bronx alone has over 900 felonies that have been pending for more than two years (Jan. 16). As for misdemeanors, the mean age of a case in New York City in 2011 at the time of jury verdict was 414 days.1 As has been shown in this publication, prosecutors regularly prolong the life of a case with promiscuous "ready for trial" declarations made off-calendar, when no one is in court, only to be "not ready" when the trial date arrives (March 25, 2009). ADAs in some large offices commonly declare "ready for trial" on the first day of a misdemeanor, thus disabling the speedy-trial clock at the outset of a case (Aug. 16, 2010).

A root of the delayed discovery problem is in a 1985 ruling by the Court of Appeals, People v. Anderson,2 that the prosecution could still be "ready for trial" even if it had not provided the defense with the discovery required by Article 240. Since then, courts regularly rule that delays in providing discovery are simply not charged against the prosecution.3 "[D]iscovery failures have no bearing on the People's readiness" is a frequent refrain.4

By decoupling disclosure delays from any speedy-trial consequences, the Anderson decision and its progeny effectively eliminated any meaningful deterrent to discovery delay. The opinion cited measures in CPL §240.70, such as preclusion of evidence, as sanctions to be employed instead of speedy-trial dismissal. Use of such discretionary sanctions for delayed discovery, however, has proven to be a rarity. Given the hundreds of thousands of criminal cases brought every year, the scarcity of decisions penalizing the prosecution for discovery delay underlines the reality that judicial sanctions for delay are, in effect, non-existent.5 And other statutory "sanctions," such as a continuance, are hardly a blessing for the party who must spend the additional period in jail.

Here is a 2013 decision illustrating the price of delayed discovery. In People v. Ocasio, a Bronx court addressed a period of almost seven months' delay during which the prosecution repeatedly failed to produce discovery in the form of test results of the complainant's DNA. The opinion acknowledged that "the People have failed to substantiate the reasons for the long delay."6

Nevertheless, charging the prosecution not a single day of the seven months, the court denied the speedy-trial release motion. It did not remark on the anomaly of the incarcerated and only defendant, paying such a heavy price for the prosecution's inexcusable delay. If ultimately acquitted, he will have spent an extra 202 days in jail for this discovery failing alone.

Consequences of Delay

For the accused person kept in jail awaiting trial in New York City, the experience of being sent back to Rikers Island for another month or two after the prosecution has failed to turn over a videotape or medical records or the results of a scientific test is much more than the aggravation that discovery delay may mean for others. The presumably innocent defendant experiences every day of the additional incarceration in real time, but the speedy-trial clock records nothing.

A substantial majority of the 12,000 daily inmates at Rikers Island are awaiting trial. The constitutional abstraction "deprivation of liberty" does not convey the daily experience of a pretrial detainee in that setting.

It is an extremely violent environment, with incidents of assaults and slashings increasing every year since 2008.7 In 2012 alone, The New York Times reported four legal settlements approaching or exceeding $1 million in cases of inmates murdered or brutally beaten while at Rikers.8 The constant dread and tension in this atmosphere is combined with an acute boredom that pretrial detainees must endure. Unlike sentenced prisoners, those awaiting trial are in general not eligible to participate in work or educational programs.

Added to the injury of these extra weeks and months of confinement, fear, and boredom, there is insult: some detainees must wear orange jumpsuits.

I have heard senior officials in criminal justice dismiss the significance of delayed discovery, saying "You get everything by the time of trial anyway."

But making prolonged incarceration the price of discovery can have the ultimate effect of defeating the very occurrence of the trial. It is now well-established, as the New York City Criminal Justice Agency has found in its studies, that for the 31 percent of defendants who are confined for the duration of the case, detention dramatically increases the likelihood of conviction.9 The result often comes about by guilty plea, because longer detention increases "the leverage of detention" wielded by the prosecution.10 In this way, the absence of a meaningful sanction in current law operates as a virtual incentive to delayed disclosure.

This state of affairs highlights the urgent need for reform of New York's speedy-trial and discovery laws. The New York County District Attorney, Cyrus Vance, has acknowledged that, "New York is among the most restrictive states in terms of providing criminal discovery."11 Indeed, New York is in the company of such states as Alabama, Georgia, Kentucky, Louisiana, South Carolina, Tennessee and Texas in the paucity of pretrial information it requires prosecutors to provide.

In addition, repair of the bail laws, as Chief Judge Jonathan Lippman advocated in his State of the Judiciary address, could help alleviate the plight of discovery detainees. Most of those awaiting trial in jail are there because they are too impoverished to afford bail, even in amounts as low as $500. Expanding pretrial release and affordable bail would reduce the over-population of indigent people at Rikers Island, and save some of them from spending prolonged periods in jail as the price of defending against the accusations by the state.

Thomas M. O'Brien is an attorney with the special litigation unit of the criminal defense practice of The Legal Aid Society.


  1. 2011 Annual Report, Criminal Court of the City of New York, p.53.
  2. 66 NY2d 529 (1985).
  3. See, e.g., People v. Caussade, 162 AD2d 4, 8 (2d Dept. 1990); People v. Cecala, 27 Misc.3d 135(A) (App. Term 2d Dept. 2010); People v. Thomas, 26 Misc.3d 144 (App. Term 2d Dept. 2010).
  4. People v. Wright, 50 AD3d 429, 430 (1st Dept. 2008).
  5. For a rare example, see People v. Archer, 31 Misc.3d 1225(A) (Crim. Ct. Bronx Co. 2011) (stating that preclusion is a "very harsh sanction," only for "flagrant" violation of discovery rules).
  6. People v. Ocasio, 959 NYS2d 898 (Sup. Ct. Bronx Co. 2013), slip op. at 9.
  7. See
  8. Benjamin Weiser, "City Agrees to Pay $850,000 to End Suit Over Inmate's 2009 Beating Death," New York Times, Nov. 29, 2012.
  9. CJA Research Brief No. 18, Bail, Detention & Felony Case Outcomes, p.5 (September 2008).
  10. Id. at 7.
  11. Cyrus R. Vance, Jr., " Expanding Criminal Discovery Responsibly," NYLJ, June 21, 2012.