BILL ANALYSIS Ó
AB 1328
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ASSEMBLY THIRD READING
AB
1328 (Weber)
As Introduced February 27, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+--------------------+-----------------------|
|Public Safety |4-2 |Quirk, Gonzalez, |Melendez, Lackey |
| | |Jones-Sawyer, | |
| | |Santiago | |
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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:
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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,
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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
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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
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(916) 319-3744 FN: 0000142