BILL ANALYSIS Ó AB 1328 Page 1 ASSEMBLY THIRD READING AB 1328 (Weber) As Introduced February 27, 2015 Majority vote -------------------------------------------------------------------- |Committee |Votes |Ayes |Noes | | | | | | | | | | | |----------------+------+--------------------+-----------------------| |Public Safety |4-2 |Quirk, Gonzalez, |Melendez, Lackey | | | |Jones-Sawyer, | | | | |Santiago | | -------------------------------------------------------------------- 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 may instruct the jury that the intentional failure to disclose the materials and information occurred and that the jury shall 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: AB 1328 Page 2 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; 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, AB 1328 Page 3 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. 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 AB 1328 Page 4 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: 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 of justice." Brady, 373 United States 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. California Attorneys for Criminal Justice (CACJ) does not see sufficient action by judges, judicial council, or the California 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."Analysis Prepared by: Gregory Pagan / PUB. S. / AB 1328 Page 5 (916) 319-3744 FN: 0000142