Testimony for State Senate Codes Committee on Implementation of Pre-Trial Discovery

September 9, 2019

Written Testimony of Cyrus R. Vance Jr., New York County District Attorney

New York State Senate Standing Committee on Codes

Public Hearing on

“Implementation of Pre-trial Discovery Reform”

Senator Bailey and members of the committee, thank you for holding this hearing on the implementation of pre-trial discovery reform. It is important to have this discussion to adequately prepare for the sweeping changes that will take effect on January 1, 2020.

I will start by saying that it gives me great pride that we live in a time of record-low crime and incarceration rates here in New York and that, as such, we are able to take this moment in history to now address long-needed criminal justice reform. I think I can safely say that everyone at the hearing wants the fairest criminal justice system possible for your constituents – the people we serve on behalf of the State of New York – that we all welcome changes aimed at achieving that goal, and that we appreciate that you recognize that passing reform legislation cannot be the end of the conversation if the reforms are going to have any chance at succeeding. Rather, for these reforms to be successful, District Attorney’s offices need access to the resources necessary to implement these changes – resources that far exceed what we presently have.

Because this hearing is directed at the implementation of pre-trial discovery reform, I will cabin the bulk of my remarks to that topic. I would be remiss, however, not to mention that the bail reforms passed will also require the allocation of significant resources in order to succeed. For example, the statute eliminates the possibility of cash bail for a substantial percentage of cases and contemplates, instead, allowing the court to order release with non-monetary conditions. But no funding has been allocated to creating and expanding pre-trial services across the state, despite the fact that significantly more cases will now be referred to such services and the services will need to provide much greater supports than they currently do. In Manhattan, for instance, of the 9,459 cases where bail was set last year, we estimate that the defendants in 6,735 (or 71 percent) of those cases would be released under the new law because they were not charged with a “qualifying offense.” The remaining 2,724 (29 percent) of those defendants – those who were charged with qualifying offenses – would be eligible for bail or detention. A considerable proportion of cases in both categories – mandatory release and qualifying offenses – will have non-monetary conditions set by the court, and there needs to be capacity to appropriately supervise these defendants. Last year, there were 1,040 defendants placed on Supervised Release in Manhattan – it is likely that that figure will increase five-fold or more come January because of the large number of cases that will fall under mandatory release. Indeed, the Vera Institute of Justice, which has studied this issue extensively, estimates that across the state it will cost $75 million a year to roll-out pre-trial services and supervised release as contemplated by the statute.

Turning to discovery reform. Since 2009, I have advocated for legislative reform of New York’s discovery rules, and I have significantly opened discovery practices in our office to the extent practicable with the resources we currently have. And, although we welcome legislative reform, we cannot implement changes successfully without adequate resources. The particular reforms passed require significant personnel and technology increases. So, too, in addition to necessitating additional resources for prosecutor’s offices, the legislation necessarily requires additional resources for our police departments and other law enforcement partners, so that we can work together to meet our discovery obligations.

To that end, the pre-trial discovery reform significantly decreases the amount of time that prosecutors have to comply with our discovery obligations and it significantly increases the scope of discoverable materials as well as the number of cases for which full discovery is required. For most cases, the new legislation will require us to turn over discovery materials to the defendant within fifteen days. Such discoverable materials in a typical case in 2020 may encompass – in addition to the names of victims and witnesses – thousands of text messages, medical records including x-rays or other imaging, insurance records, financial records, historical cell site data, search warrants for computers and cell phones, photographs, hours of surveillance videos from private businesses or police units, transcripts of various proceedings, recordings from police body cameras, and many other sources of evidence.

Importantly, the new discovery requirements apply to all cases, including those resolved by pleas, unless the defense waives. Currently, more than 97 percent of cases are resolved by guilty pleas, often to the benefit of defendants, and those cases do not require full discovery. Being mandated now, however, to provide such a significant quantity of information in most cases constitutes a seismic shift in the demands placed upon prosecutors – one that would render it impossible to comply without an increase in resources. In Manhattan alone, we estimate that these changes will require what amounts to full trial discovery on approximately 32,000 additional cases annually.

Each of the 62 District Attorney’s offices in this state has a unique set of needs based on caseloads and current personnel and technology resources. The offices are working diligently to determine what those specific needs are and to prepare for the changes we will need to make. For example, in Manhattan, we conducted a pilot, focused on document acquisition and review, in which we asked each assistant district attorney to treat one newly acquired case as though discovery reform was already implemented – i.e., to, within fifteen days, attempt to gather all of the discoverable material, review it, analyze it, make necessary redactions, and turn it over. Through that exercise, it became evident that what we anticipated was true – the sheer volume of materials we need to gather, analyze, and deliver to the defense in that fifteen-day period is incredible and we need a significant increase in personnel and technology resources to successfully meet our new mandate.  

Based in part on the data we gathered from that pilot, we estimate that we will need an increase in personnel and technology resources amounting to well over $20 million each year. That estimate encompasses our need to increase our litigation support unit from roughly 20 employees to roughly 70 employees to obtain the various documents the statute requires us to disclose within fifteen days. The figure also includes our need to add additional investigators, as well as dozens more analysts and paralegals to analyze, review, and redact sensitive information from the documents, audio materials, and video materials, within that fifteen-day period. We also anticipate needing more assistant district attorneys to manage the workloads and navigate the ligation that the legislation will inevitably create.

Moreover, the most efficient – and indeed perhaps the only practical – way for our offices to meet these demands is to create an e-discovery platform that will allow us to promptly deliver discoverable materials to the defense. So, too, large-set data analysis tools, social media analysis tools, data storage, work stations, and scanners are all technological resources that will be vital to the success of these reforms. And all of that is not to mention the more basic technological resources that will be required in the less populated counties across the state – some of which have to coordinate with dozens of police departments to obtain discoverable materials, operate in several different county courts across large swaths of land, and may not even presently have the capacity to track or manage large portions of their caseloads.

Complying with the new discovery laws is not simply about resources. We must also ensure witness safety and the cooperation of witnesses. The new discovery statute mandates that the District Attorney provide the name and adequate contact information for all persons who have information relevant to any charge, within fifteen days of the defendant’s first appearance in criminal court.   As indicated, currently less than three percent of cases go to trial, so, historically, the identities and statements of victims and witnesses have been protected from disclosure. Now, the requirement that we hand over to defendants rosters of who has spoken out against them just fifteen days after their first appearance, absent a protective order, is a change that undoubtedly will dissuade witnesses who live in all neighborhoods from reporting crime or agreeing to testify as witnesses. For those witnesses whose identities we will know, the discovery reform poses additional logistical concerns. On that score, within this fifteen-day period, prosecutors will now have to interview any person who has case-related information (not just witnesses we intend to call at trial), inform them that we must turn over their names and contact information, address their safety and privacy concerns in hopes of helping them overcome their reluctance to cooperate, and in fact hand over their contact information to the defendant. All this will require substantial additional prosecutorial resources. And, indeed, several offices have been working on creating an electronic portal that allows defense attorneys to contact witnesses without displaying the witness’s sensitive personal contact information to combat that chilling effect that the laws will have on witness participation and to help ensure the safety of witnesses who do participate with law enforcement.

In short, we want these reforms to succeed and we intend to do everything possible to meet this new mandate. Without adequate resources, however, we simply will not be able to do so. I would like to thank the committee again for recognizing the importance of holding this hearing and continuing this conversation. I want the fairest criminal justice system possible for your constituents and ask that you do everything in your power to help us successfully implement these reforms, which will hopefully get us closer to achieving that goal.