Amended in Senate July 8, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1328


Introduced by Assembly Member Weber

February 27, 2015


An act to add Sectionbegin delete 1127jend deletebegin insert 1424.5end insert to the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

AB 1328, as amended, Weber. begin deleteDiscovery: prosecutorial duty to disclose information. end deletebegin insertCriminal procedure: withholding of evidence. end insert

Existing law requires the prosecuting attorney to disclose to the defendant or his or her attorney certain materials and information, including statements of all defendants and any exculpatory evidence, as specified.begin insert Existing law authorizes a court to grant a motion to disqualify a district attorney from performing an authorized duty, subject to specified procedural requirements.end insert

This bill wouldbegin delete authorize a court in any criminal trial or proceeding in whichend deletebegin insert require a court, ifend insert the courtbegin delete has determinedend deletebegin insert determinesend insert that the prosecuting attorney hasbegin delete intentionally or knowingly failed to discloseend deletebegin insert deliberately and intentionally withheldend insert relevantbegin insert exculpatoryend insert materialsbegin delete and information, as specified, to instruct the jury that the failure to disclose has occurred and that the jury shall consider the failure to disclose in determining whether reasonable doubt of the defendant’s guilt exists.end deletebegin insert or information in violation of law, to inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense. The bill would authorize a court to disqualify an individual prosecuting attorney from a case if the court determines that the prosecuting attorney deliberately and intentionally withheld relevant exculpatory materials or information in that case in violation of law and that the prosecuting attorney acted in bad faithend insertbegin insert. The bill would also authorize a court to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s office knowingly participated in or sanctioned the intentional withholding of the relevant exculpatory materials or information and that withholding is part of a pattern and practice of violations. The bill would specify that its provisions do not limit the authority or discretion of the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, remedies, or actions.end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1424.5 is added to the end insertbegin insertPenal Codeend insertbegin insert, end insert2immediately following Section 1424begin insert, to read:end insert

begin insert
3

begin insert1424.5.end insert  

(a) (1) If a court determines that a prosecuting
4attorney has deliberately and intentionally withheld relevant
5exculpatory materials or information in violation of law, the court
6shall inform the State Bar of California of that violation if the
7prosecuting attorney acted in bad faith and the impact of the
8withholding contributed to a guilty verdict, guilty or nolo
9contendere plea, or, if identified before conclusion of trial,
10seriously limited the ability of a defendant to present a defense.

11(2) A hearing to consider whether a prosecuting attorney or his
12or her office should be disqualified pursuant to this section shall
13be initiated only upon the court’s own motion.

14(b) (1) Upon its own motion, a court may disqualify an
15individual prosecuting attorney from a case if the court determines
16that the prosecuting attorney deliberately and intentionally
17withheld relevant exculpatory materials or information in that
18case in violation of law and that the prosecuting attorney acted in
19bad faith.

20(2) The court may also disqualify the prosecuting attorney’s
21office if there is sufficient evidence that other employees of the
P3    1prosecuting attorney’s office knowingly participated in or
2sanctioned the intentional withholding of the relevant exculpatory
3materials or information and that withholding is part of a pattern
4and practice of violations.

5(c) This section does not limit the authority or discretion of the
6court or other individuals to make reports to the State Bar of
7California regarding the same conduct, or otherwise limit other
8available legal authority, remedies, or actions.

end insert
begin delete9

SECTION 1.  

Section 1127j is added to the Penal Code, to read:

10

1127j.  

(a) In any criminal trial or proceeding in which the
11court determines that the prosecuting attorney has intentionally or
12knowingly failed to disclose relevant materials and information
13required under law, including Section 1054.1, except subdivision
14(a) of that section, and Brady v. Maryland (1963) 373 U.S. 83, the
15court may instruct the jury that the intentional or knowing failure
16to disclose the relevant materials and information occurred and
17that the jury shall consider the intentional or knowing failure to
18disclose in determining whether reasonable doubt of the
19defendant’s guilt exists.

20(b) This section does not limit any other remedy available under
21law.

end delete


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