BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 1328


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          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:










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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. /  








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          (916) 319-3744    FN: 0000142