BILL ANALYSIS Ó
AB 885
Page 1
Date of Hearing: May 7, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 885 (Ammiano) - As Amended: April 29, 2013
SUMMARY : Provides that in any criminal trial or proceeding in
which the court determines that the prosecuting attorney has
failed to disclose materials and information required under law,
the court shall instruct the jury that the intentional failure
to disclose the materials and information occurred and that the
jury may consider the failure to disclose as circumstantial
evidence to support the presence of reasonable doubt. Specifies
that nothing in this bill shall be construed to limit any other
remedy available under law.
EXISTING LAW :
1)Requires the prosecuting attorney to disclose to the defendant
or his or her attorney all of the following materials and
information, if it is in the possession of the prosecuting
attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies:
a) The names and addresses of persons the prosecutor
intends to call as witnesses at trial;
b) Statements of all defendants;
c) All relevant real evidence seized or obtained as a part
of the investigation of the offenses charged;
d) The existence of a felony conviction of any material
witness whose credibility is likely to be critical to the
outcome of the trial; and
e) Any exculpatory evidence.
f) Relevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor
intends to call at the trial, including any reports or
AB 885
Page 2
statements of experts made in conjunction with the case,
including the results of physical or mental examinations,
scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence at the trial.
(Penal Code Section 1054.1.)
2)Requires the defendant and his or her attorney to disclose to
the prosecuting attorney:
a) The names and addresses of persons, other than the
defendant, he or she intends to call as witnesses at trial,
together with any relevant written or recorded statements
of those persons, or reports of the statements of those
persons, including any reports or statements of experts
made in connection with the case, and including the results
of physical or mental examinations, scientific tests,
experiments, or comparisons which the defendant intends to
offer in evidence at the trial; and,
b) Any real evidence which the defendant intends to offer
in evidence at the trial. [Penal Code Section 1054.3(a).]
3)States, before a party may seek court enforcement of any of
the required disclosures, the party shall make an informal
request of opposing counsel for the desired materials and
information. If within 15 days the opposing counsel fails to
provide the materials and information requested, the party may
seek a court order. Upon a showing that a party has not
complied with the disclosure requirements and upon a showing
that the moving party complied with the informal discovery
procedure provided in this subdivision, a court may make any
order necessary to enforce the provisions of this chapter,
including, but not limited to, immediate disclosure, contempt
proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of
the matter, or any other lawful order. Further, the court may
advise the jury of any failure or refusal to disclose and of
any untimely disclosure. [Penal Code Section 1054.5(b).]
4)Allows a court to prohibit the testimony of a witness upon a
finding that a party has failed to provide materials as
required only if all other sanctions have been exhausted. The
court shall not dismiss a charge unless required to do so by
the Constitution of the United States. [Penal Code Section
1054.5(c).]
AB 885
Page 3
5)Provides that the required disclosures shall be made at least
30 days prior to the trial, unless good cause is shown why a
disclosure should be denied, restricted, or deferred. If the
material and information becomes known to, or comes into the
possession of, a party within 30 days of trial, disclosure
shall be made immediately, unless good cause is shown why a
disclosure should be denied, restricted, or deferred. "Good
cause" is limited to threats or possible danger to the safety
of a victim or witness, possible loss or destruction of
evidence, or possible compromise of other investigations by
law enforcement. (Penal Code Section 1054.7.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The remedy
proposed by AB 885 is designed to be an immediate response to
Brady violations that could avoid lengthy and costly appeals,
and wrongful outcomes of trials. It merely permits a court to
inform a jury that a particular piece of evidence favorable to
the defense was improperly concealed or was otherwise not
provided to the defense. The jury is free to disregard this
information or consider it in weighing all the evidence in
front of them. For example, if a defendant claims that he was
at a different location at the time of a crime and the
prosecutor hides evidence of a witness who corroborates the
defendant's story, the jury can consider the defendant's claim
in the full context. This jury instruction remedy has been
explored and endorsed by numerous law review articles
including 'A Fair Trial Remedy for Brady Violations,' by
Elizabeth Napier Dewar, in the Yale Law Review."
2)Background : In a criminal trial, a defendant is presumed
innocent and the prosecution has the burden to prove beyond a
reasonable doubt that the defendant is guilty. In order to
ensure a fair trial, the prosecuting attorney has a
constitutional and statutory duty to disclose specified
information to the defendant. The jury instructions on
reasonable doubt states, "Proof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the
charge is true. The evidence need not eliminate all possible
doubt because everything in life is open to some possible or
imaginary doubt. In deciding whether the People have proved
AB 885
Page 4
their case beyond a reasonable doubt, you must impartially
compare and consider all the evidence that was received
throughout the entire trial. Unless the evidence proves the
defendant[s] guilty beyond a reasonable doubt, (he/she/they)
(is/are) entitled to an acquittal and you must find
(him/her/them) not guilty." (CALCRIM No. 103.)
In the landmark case of Brady v. Maryland (1963) 373 U.S. 83,
the Supreme Court held that a defendant has a constitutionally
protected privilege to request and obtain from the prosecution
evidence that is either material to the guilt of the defendant
or relevant to the punishment to be imposed. The Supreme
Court in a later case explained "[u]nder the Due Process
Clause of the Fourteenth Amendment, criminal prosecutions must
comport with prevailing notions of fundamental fairness. We
have long interpreted this standard of fairness to require
that criminal defendants be afforded a meaningful opportunity
to present a complete defense. To safeguard that right, the
Court has developed 'what might loosely be called the area of
constitutionally guaranteed access to evidence.' [Citing
United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.]
Taken together, this group of constitutional privileges
delivers exculpatory evidence into the hands of the accused,
thereby protecting the innocent from erroneous conviction and
ensuring the integrity of our criminal justice system."
[California v. Trombetta (1984) 467 U.S. 479, 485.]
Even in the absence of a specific request, the prosecution has a
constitutional duty to turn over exculpatory evidence that
would raise a reasonable doubt about the defendant's guilt.
[United States v. Agurs (1996) 427 U.S. 97,112.] Generally, a
specific request is not necessary for parties to receive
discovery, however, an informal discovery request must be made
before a party can request formal court enforcement of
discovery. [Penal Code Section 1054.5(b).]
3)Jury Instructions : There is currently a jury instruction
regarding untimely disclosure of discovery which covers the
late disclosure by either the prosecution or defense. CALCRIM
No. 306 states:
" Both the People and the defense must disclose their evidence
to the other side before trial, within the time limits set by
law. Failure to follow this rule may deny the other side the
chance to produce all relevant evidence, to counter opposing
AB 885
Page 5
evidence, or to receive a fair trial.
"An attorney for the (People/defense) failed to disclose:
_________________
[within the legal time period].
"In evaluating the weight and significance of that evidence, you
may consider the effect, if any, of that late disclosure.
"[However, the fact that the defendant's attorney failed to
disclose evidence [within the legal time period] is not
evidence that the defendant committed a crime.]
"
"[You must not consider the fact that an attorney for
defendant ___________________ failed
to disclose evidence when you decide the charges against
defendant[s] ___________________ .]"
This bill requires the court, when there has been a failure to
disclose materials required under Brady or the Penal Code, to
instruct the jury that the prosecuting attorney failed to
disclose materials and information required under the law, and
that the jury may consider the failure to disclose as
circumstantial evidence to support the presence of reasonable
doubt.
4)Current Remedies : The prosecuting attorney is required, both
constitutionally and statutorily, to disclose specified
information and materials to the defendant. In California,
the defendant is also statutorily required to disclose
specified information and materials to the prosecution.
[Penal Code Section 1054. 3(a).] If either party
intentionally fails to disclose the required evidence, the
court may make any order necessary to enforce the disclosure
requirements, including, but not limited to, immediate
disclosure, contempt proceedings, delaying or prohibiting the
testimony of a witness or the presentation of real evidence,
continuance of the matter, or any other lawful order. The
court may also advise the jury of any failure or refusal to
disclose and of any untimely disclosure. [Penal Code Section
1054. 5(b).] Under existing law, courts have the discretion
in determining the appropriate sanction that should be imposed
AB 885
Page 6
because of the untimely disclosure of discoverable records and
evidence.
According to a Yale Law Journal article, "[a] prosecutor's
violation of the obligation to disclose favorable evidence
accounts for more miscarriages of justice than any other type
of malpractice, but is rarely sanctioned by courts, and almost
never by disciplinary bodies." The very nature of Brady
violations-that evidence was suppressed-means that defendants
learn of violations in their cases only fortuitously, when the
evidence surfaces through an alternate channel. Nevertheless,
a recent empirical study of all 5760 capital convictions in
the United States from 1973 to 1995 found that prosecutorial
suppressions of evidence accounted for sixteen percent of
reversals at the state postconviction stage. And a study of
11,000 cases involving prosecutorial misconduct in the years
since the Brady decision identified 381 homicide convictions
that were vacated "because prosecutors hid evidence or
allowed witnesses to lie." [Footnotes omitted; Dewar, A Fair
Trial Remedy for Brady Violations , Yale Law Journal (2006) p.
1454.]
"When a prosecutor is inclined against disclosing a piece of
arguably favorable evidence, few considerations weigh in favor
of disclosure. Trial courts are reticent to grant motions to
compel disclosure of alleged Brady evidence, examine
government files, or hold prosecutors in contempt. Defendants
only rarely unearth suppressions. And, even when they do,
their convictions are rarely overturned because they face a
tremendous burden on appeal: showing that the suppression
raises a 'reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.' Finally, lawyers' professional
associations do not frequently discipline prosecutors for even
the most egregious Brady violations." (Footnotes omitted; Id.
at p. 1456.)
The author of the article proposed "when suppressed favorable
evidence comes to light during or shortly before a trial, the
trial court should consider instructing the jury on Brady law
and allowing the defendant to argue that the government's
failure to disclose the evidence raises a reasonable doubt
about the defendant's guilt. . . .[I]nstead of curing the
Brady violation through reversal on appeal, the remedy
corrects the trial itself. In contributing to a jury's
AB 885
Page 7
decision to acquit, the remedy would provide more immediate
relief than a postconviction reversal. Yet, because the
remedy would not free or even grant a new trial to defendants
of whose guilt the government has sufficient evidence, the
remedy would not run afoul of those who decry the social costs
of other 'punishments' for prosecutors, such as overturning
convictions or dismissing charges. (Footnotes omitted; Id. at
pp. 1456-1457.)
"The remedy would exist primarily for the benefit of defendants
when the government's tardiness or failure to disclose
favorable evidence permanently prejudiced the defense.
Permanent prejudice might consist of the disintegration of
tangible evidence or the death or disappearance of a witness
or alternative suspect. In such cases, neither granting a
continuance for further investigation nor the fact that the
defendant may be able to make some use of the belatedly
disclosed evidence is a sufficient remedy." (Footnotes
omitted; Id. at p. 1458.)
5)Arguments in Support :
a) The California Attorneys for Criminal Justice (the
sponsor of this bill) states, "The United States
Constitution creates protections requiring prosecutors in
criminal cases to provide an accused and his/her attorney
all evidence in their possession that may indicate
innocence, erode the credibility of a witness or is
otherwise favorable to the defense. Brady v. Maryland, 373
U.S. 83 (1963). California law requires reciprocal
disclosure pursuant to California Penal Code 1054.1.
Specifically, section 1054.1(c) requires all relevant real
evidence seized or obtained as a part of the investigation
of the offense charged. However, California law does allow
a trial to continue despite the court's identification of a
violation of this constitutional right. As a result of
these Brady violations, many people have been wrongly
convicted in unfair trials.
"Despite this obligation to provide all evidence that may be
favorable to the defense, there continues to be many
reports of Brady violations throughout California. The
Commission on the Fair Administration of Justice and the
Northern California Innocence Project has both conducted
reviews of Brady violations and determined reforms are
AB 885
Page 8
necessary. Moreover, many law review articles have explored
and endorsed the proposed jury instruction remedy,
including "A Fair Trial Remedy for Brady violations," by
Elizabeth Napier Dewar, in the Yale Law Review.
"AB 885 is essential to maintain the integrity of criminal
trials, provide oversight to overzealous prosecutors, and
afford a legitimate remedy for those injured by Brady
violations."
b) The Taxpayers for Improving Public Safety writes, "This
legislation addresses an important issue for criminal
trials. At a time when budget reductions have adversely
impacted the California judicial system, it is of the
utmost importance that a criminal trial proceed as
expeditiously as possible. In order to do so, prosecutors
must fully comply with Brady v. Maryland. If there is no
sanction for failing to comply, other than to compel a
retrial if the exculpatory evidence is discovered by the
accused or his counsel, it is the State which is the loser
because of the cost of a new trial and reimbursing the
accused for the period of incarceration.
"Although there is no doubt that the significant majority of
trial attorneys in the State's District Attorneys offices
act ethically and as required by both statute and judicial
precedent, this legislation will provide an important
remedy for those few who choose to attempt to skirt the
law. More importantly, this legislation sends a message
that abuse of criminal discovery will not be tolerated by
the Legislature."
6)Argument in Opposition : The California District Attorneys
Association argues, "The current discovery statute, Penal Code
Section 1054.5, contains numerous and significant sanctions
for discovery violations, including continuance, contempt,
jury instruction, prohibiting witness testimony (after
exhaustion of other sanction), and, finally, dismissal (only
if constitutionally compelled). The existing jury instruction
on point, CALCRIM 306, is also quite sufficient, and goes no
further than to advise the jury that, 'in evaluating the
weight and sufficiency of the evidence, you may consider the
effect, if any, of that late disclosure.' This instruction is
drafted as carefully as it is precisely because it does not
follow, logically, that an intentional Brady violation
AB 885
Page 9
necessarily supports the existence of reasonable doubt.
"That said, the most significant infirmity of AB 885 is the fact
that it is useless when considered in the context of a trial.
As of the time of the trial court's instruction conference
(usually before closing argument, so the advocates can argue
the proper instructions), should the defense have discovered
the Brady/discovery violation by then (so as to ask for this
new instruction), the trial court can always reopen the
evidence to admit the up-to-then-suppressed material. Having
thus been admitted, it is no longer suppressed, and thus no
longer represents a Brady violation. Case law clearly
establishes that there can be no Brady violation if the
evidence is still available for trial (even if withheld during
pre-trial discovery); see, e.g., People v. Verdugo (2010) 50
Cal.4th 279, 281. Indeed, such remains true even in the
situation where evidence is disclosed after closing argument
but before deliberations; see People v. Wright (1985) 39
Cal.3d 576, 590-591 [trial court allowed parties to reopen to
consider late evidence; affirmed]. But in the more common,
but still rare, situation of the finding of suppressed
discovery after the verdict (which could well result in
granting of habeas corpus, so the defense has an appropriate
remedy to pursue), it is far too late to trigger application
of AB 885's curative instruction. Thus, this statutory fix
would come early enough for the issue to be remedied
completely (rendering the instruction unnecessary), or so late
as to be entirely moot."
7)Related Legislation : AB 604 (Ammiano) requires, among other
provisions, the court to provide a jury instruction advising
that it may consider whether or not law enforcement followed
specified procedures when determining the reliability of
eyewitness identification. AB 604 is pending a vote on the
Assembly floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice (Sponsor)
California Public Defenders Association
Legal Services for Prisoners with Children
Los Angeles County Alternate Public Defender's Office
Los Angeles County Public Defender
AB 885
Page 10
Taxpayers for Improving Public Safety
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744