Op-Ed | Ensuring justice for survivors: Why discovery rules need to change NOW

As an organization that fights for women’s rights, reproductive healthcare, and an end to gender-based violence, the National Organization for Women – New York City (NOW-NYC) is committed to ensuring that survivors of domestic violence, sexual assault and sex trafficking receive justice and safety. In recent years, we have seen a disturbing trend that undermines these goals: the dismissal of gender-based violence cases for reasons unrelated to the merits of the case. The Legislature must take to heart the seriousness of this issue and include Governor Hochul’s proposed discovery amendments in the budget. There is no excuse for standing in the way of these amendments, which victims in every district represented by the members of the legislature deserve.

In 2019, the legislature overhauled discovery laws, which was an important step in improving the criminal justice system’s goals of fairness and transparency. Governor Hochul’s proposal does not roll back these important changes, as some have claimed. The 2019 law created expansive new categories of information that must be turned over; this amendment does not change this. It created tight deadlines for prosecutors and fundamentally linked discovery to the speedy trial clock; the bill does not change this. It is currently the most pro-defendant discovery law in the nation, and it would remain so. It would change is a draconian enforcement mechanism that is currently causing the system to fail crime victims, many of them women who are brutalized at home, on the street, and in the sex trade. Under the current law, hundreds of offenders are being released without consequences, leaving survivors without the protection and justice they deserve.

Here’s how this is happening. Everyone accused of a crime is entitled to a speedy trial, and the discovery law requires prosecutors to turn over evidence in a certain number of days. This makes sense. However, if a prosecutor misses even a single document—no matter how insignificant, and even if the prosecutor did not have the document—the speedy trial clock is considered to have been running retroactively from when the prosecutor turned the original set of evidence over. This means that very often, the case is dismissed on speedy trial grounds without the judge being able to consider whether the prosecutor was at fault for the delay, whether the defendant was harmed by the delay, or whether the document is even relevant.

The amendment offers a practical solution. It would allow for proportional remedies, meaning that cases would not be automatically dismissed due to minor errors. Instead, the law would allow judges to evaluate whether any new material that is turned in after the discovery period has hurt the defendant’s right to a fair trial.

Should late disclosure of a clip of bodycam footage that shows absolutely nothing relevant to the case really call for a dismissal? That isn’t how the criminal justice system is supposed to work. And it isn’t working. The number of cases dismissed in New York City Criminal Court has skyrocketed to 62%. And when a case is dismissed, it’s gone. There’s no record of that crime, no chance to re-file charges, no order of protection for the victim. We cannot allow a minor delay in disclosing a minor document to make the difference between a survivor being defended by an order of protection or being exposed to her abuser.

Governor Hochul’s proposal is an important step toward improving the criminal justice system. It is critical that it passes as part of this budget to ensure that survivors of gender-based violence are given the fair treatment and the justice they deserve. NOW-NYC urges lawmakers to act swiftly. We cannot allow survivors to be victimized twice—once by their abusers and again by a flawed system.