BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1328


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          Date of Hearing:  April 14, 2015
          Chief Counsel:     Gregory Pagan

                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                     1328 (Weber) - As Introduced  February 27, 2015



          
          SUMMARY:  Provides that in any criminal trial or proceeding in  
          which the court determines that the prosecuting attorney has  
          intentionally or knowingly failed to disclose relevant materials  
          and information required to be disclosed by 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 intentional or knowing failure to disclose in  
          determining whether reasonable doubt of the defendant's guilt  
          exists. 

          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  








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               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; 

             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.   
               (Pen. Code, § 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.  (Pen. Code, § 1054.3 subd.(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  








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            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.  (Pen. Code, § 1054.5, subd.(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.  (Pen. Code, § 1054.5,  
            subd.(c).)

          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.  (Pen. Code, § 1054.7.)

          FISCAL EFFECT:  Unknown

          COMMENTS:
          1)Author's Statement:  According to the author, "The United  
            States Supreme Court has made clear that prosecutors are  
            required by the Constitution to provide the defense with all  
            evidence that may be favorable to a defendant. Prosecutors are  
            not independent parties who may "win at all costs." Instead,  
            they are officers of the court whose exclusive obligation is  
            to pursue the "truth" and to ensure due process of the law. "A  
            prosecutor that withholds evidence on demand of an accused  
            which, if made available, would tend to exculpate him or  
            reduce the penalty helps shape a trial that bears heavily on  
            the defendant. That casts the prosecutor in the role of an  
            architect of a proceeding that does not comport with standards  








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            of justice." Brady, 373 U.S. 83, 88. In addition, prosecutors  
            are required to ensure that law enforcement officers involved  
            in the case also provide all evidence in their possession that  
            may be favorable to the defense

          "There is a growing problem with prosecutorial misconduct  
            throughout the country and in California. As recently as this  
            February, 9th Circuit Judge Alex Kozinski has described  
            rampant Brady violations as a growing "epidemic." Kozinski  
            says that judges must put a stop to such injustice. CACJ does  
            not see sufficient action by judges, judicial council, or the  
            CA Supreme Court; as such, CACJ believes there is a necessity  
            to take legislative actions to address this injustice of  
            "epidemic" proportions to the defendant in California."

          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  
            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  








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            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.  (Pen. Code, § 1054.5, subd.(b).)

          3)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.  (Pen.  
            Code, § 1054. 3, subd.(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 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  








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            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  
            decision to acquit, the remedy would provide more immediate  
            relief than a post-conviction 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  








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            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.)


          4)CALCRIM 306 Jury Instruction:  In addition to sanctions,  
            untimely disclosure of required evidence is addressed in the  
            CALCRIM 306 jury instruction, which reads in relevant part:

          "Both the People and the defense must disclose to the other  
            their evidence to the other before trial, within the rime  
            limits set by law.  Failure to follow the rule may deny the  
            other side the chance to produce all relevant evidence, to  
            counter opposing evidence, or to receive a fair trial."

          "An Attorney for the (People/Defense) failed to disclose  
            [description of the evidence that was not disclosed] within  
            the legal time period."

          "In evaluating the weight and significance of that evidence, you  
            may consider the effect, if any, of that late discovery."

          Is this instruction sufficient to remedy possible prejudice as a  
            result of late disclosure of required evidence?  
           
          5)Governor's Veto of AB 885 (Ammiano):  AB 885 (Ammiano) of the  
            2013-14 Legislative Session was identical to this bill in that  
            it provided that in any criminal trial or proceeding in which  
            the court determines that the prosecuting attorney has  
            intentionally or knowingly failed to disclose relevant  








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            materials and information required to be disclosed by 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 intentional or knowing failure to  
            disclose in determining whether reasonable doubt of the  
            defendant's guilt exists.  AB 885 was vetoed by the Governor.   
            The Governor in his veto message stated, "AB 885 would allow a  
            court to instruct a jury to consider intentional or knowing  
            prosecutorial discovery violations in determining whether  
            reasonable doubt exists in criminal case.

          "Prosecutorial misconduct should never be tolerated.

          "This bill, however, would be a sharp departure from current  
            practice that looks to the Judiciary to decide how juries  
            should be instructed.  Under current law, judges have an array  
            of remedies at their disposal if a discovery violation comes  
            to light during the trial." 

          6)Argument in Support:  Citizens United for a Responsible Budget  
            argues, "AB 1328 would allow a court-where there has been a  
            determination of an intentional or knowing failure to disclose  
            certain material information-to instruct the jury that a  
            failure to disclose has occurred and the jury may determine  
            whether reasonable doubt of the defendant's guilt exists. 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 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  








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            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 have both conducted reviews of  
            Brady violations and determined reforms are 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 1328 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."

          7)Argument in Opposition:  The Alameda County District Attorney  
            states, "As you know, Proposition 115 (1990) established Penal  
            Code Section 1054 and codified the principle of reciprocal  
            discovery, under which both the prosecution and defense are  
            obligated to turn over specified materials. When either side  
            fails to comply with its statutory discovery obligations, PC  
            1054.5 provides the court with the authority to grant a  
            variety of remedies, depending on the circumstances. The court  
            many order immediate disclosure of the material, initiate  
            contempt proceedings, delay or prohibit testimony, grant a  
            continuance, "or any other lawful order." Additionally,  
            individual attorneys also face State Bar sanctions, including  
            potential disbarment, for unethical conduct, and, in instances  
            involving the intentional destruction of secreting of  
            evidence, criminal sanctions.

          "AB 1328 authorizes a court in any criminal trial or proceeding  
            in which the court has determined that the prosecuting  
            attorney has intentionally or knowingly failed to disclose  
            relevant materials and information, to instruct the jury that  
            the failure to disclose has occurred and the jury shall  
            consider the failure to disclose in determining whether  
            reasonable doubt of the defendant's guilt exits.

          "CALCRIM 306, which covers all untimely disclosures of required  
            evidence, already addresses the circumstances of late  
            discovery made during trial as contemplated by AB 1328. The  








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            Judicial Council Advisory Committee on Criminal Jury  
            Instructions crafted this CALCRIM 306 with specific and  
            nuanced language following input from judges, prosecutors,  
            defense attorneys, and law professors. The instruction was  
            designed to instruct the jury in a manner consistent with case  
            law and the ethical obligation of the prosecution and defense.  
            CALCRIM 306 applies to both parties by properly reflecting the  
            considerations that should be before the jury: the content of  
            the evidence, and the impact of the timing of its disclosure,  
            while also acknowledging that in some instances, late  
            disclosure may have no effect. 

          "In light of the breadth of the existing CALCRIM instruction,  
            the new instruction envisioned by AB 1328 is unnecessary,  
            duplicative and unbalanced. To the extent that discovery  
            violations are committed by either the prosecution or the  
            defense, existing law already provides the court with a  
            variety of remedies, including a jury instruction. To add  
            another jury instruction, particularly one as prejudicial and  
            one-sided as this is, serves no purpose other than to confuse  
            jurors and frustrate California's criminal discovery process.  
            AB 1328 could also have the unintended consequence of  
            thwarting justice by improperly diverting the jury's attention  
            from the evidence to a procedural issue."
          
          8)Prior Legislation:  AB 885 (Ammiano) of the 2013-14  
            Legislative Session was identical to this bill in that it  
            provided that in any criminal trial or proceeding in which the  
            court determines that the prosecuting attorney has  
            intentionally or knowingly failed to disclose relevant  
            materials and information required to be disclosed by 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 intentional or knowing failure to  
            disclose in determining whether reasonable doubt of the  
             defendant's guilt exists.  AB 885 was vetoed by the Governor.

          REGISTERED SUPPORT / OPPOSITION:
          
          Support

          American Civil Liberties Union








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          Legal Services for Prisoners with Children
          Friends Committeeon Legislation of California
          Californians United for a Responsible Budget

          Opposition

          Alameda County District Attorney's Office
          California District Attorneys Association
          California Judges Association
          Association of Deputy District Attorneys
          Association of Los Angeles Deputy Sheriffs
          California Association of Code Enforcement Officers
          California College and University Police Chiefs Association
          California Narcotics Officers Association 
          Los Angeles Police Protective League
          Riverside Sheriffs Association
          
          Analysis Prepared  
          by:              Gregory Pagan / PUB. S. / (916) 319-3744