BILL ANALYSIS Ó AB 1328 Page 1 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 AB 1328 Page 2 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 AB 1328 Page 3 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 AB 1328 Page 4 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 AB 1328 Page 5 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 AB 1328 Page 6 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 AB 1328 Page 7 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 AB 1328 Page 8 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 AB 1328 Page 9 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 AB 1328 Page 10 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 AB 1328 Page 11 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