BILL ANALYSIS Ó AB 885 Page 1 ASSEMBLY THIRD READING AB 885 (Ammiano) As Amended April 29, 2013 Majority vote PUBLIC SAFETY 5-2 ----------------------------------------------------------------- |Ayes:|Ammiano, Jones-Sawyer, | | | | |Mitchell, Quirk, Skinner | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Melendez, Waldron | | | | | | | | ----------------------------------------------------------------- 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; AB 885 Page 2 e) Any exculpatory evidence; and 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 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. 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. 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. AB 885 Page 3 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. 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. FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS : 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." Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744 AB 885 Page 4 FN: 0000453