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
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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