BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1328 Hearing Date: July 14, 2015
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|Author: |Weber |
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|Version: |July 8, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Discovery: Prosecutorial Duty to Disclose Information
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation:AB 885 (Ammiano) Vetoed 2014
Support: (all support to prior version of the bill) California
Public Defenders Association; Legal Services for
Prisoners with Children
Opposition:(all opposition to prior version of the
bill)Association of Deputy District Attorneys;
Association for Los Angeles Deputy Sheriffs;
California Association of Code Enforcement Officers;
California College and University Police Chiefs
Association; California Narcotic Officers Association;
California State Sheriffs' Association; California
Police Chiefs Association; Judicial Council; Los
Angeles County District Attorney's Office; Los
Angeles Police Protective League; Office of the San
Diego County District Attorney; Riverside Sheriffs
Association
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Assembly Floor Vote: 41 - 36
PURPOSE
The purpose of this bill is to require a court to inform the
State Bar if it finds that a prosecutor deliberately and
intentionally withheld relevant exculpatory materials or
information in violation of the law and to allow the court on
its own motion to disqualify a person or an office from
prosecuting a case when it finds a prosecutor deliberately and
intentionally withheld relevant exculpatory materials under
specified circumstances.
Existing law 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:
The names and addresses of persons the prosecutor
intends to call as witnesses at trial;
Statements of all defendants;
All relevant real evidence seized or obtained as a part
of the investigation of the offenses charged;
The existence of a felony conviction of any material
witness whose credibility is likely to be critical to the
outcome of the trial; and
Any exculpatory evidence.
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.
(Penal Code Section 1054.1.)
Existing law requires the defendant and his or her attorney to
disclose to the prosecuting attorney:
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
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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,
Any real evidence which the defendant intends to offer
in evidence at the trial. (Penal Code § 1054.3(a).)
Existing law 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. (Penal Code §1054.5(b).)
Existing law 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. (Penal Code §
1054.5(c).)
Existing law 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. (Penal Code § 1054.7.)
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This bill provides that if a court determines that a prosecuting
attorney has deliberately and intentionally withheld relevant
exculpatory materials or information in violation of the law,
the court shall inform he State Bar of California of the
violation if the prosecuting attorney acted in bad faith and the
impact of the withholding contributed to a guilty verdict,
guilty or nolo contendere plea, or if identified before the
conclusion of the trial seriously limited the ability of a
defendant to present a defense.
This bill provides that a hearing to consider with a prosecuting
attorney or his or her office should be disqualified shall be
initiated only upon the court's own motion.
This bill provides that upon its own motion, a court may
disqualify an individual prosecuting attorney from a case if the
court determines that the prosecuting attorney deliberately and
intentionally withheld relevant exculpatory materials or
information in that case in violation of the law and that the
prosecuting attorney acted in bad faith.
This bill provides that the court may also disqualify the
prosecuting attorney's office if there is sufficient evidence
that other employees of the prosecuting attorney's office
knowingly participated in or sanctioned the intentional
withholding of the relevant exculpatory materials or information
and that withholding is part of a pattern and practice of
violations.
This bill provides that this section does not limit the
authority or discretion of the court or other individuals to
make reports to the State Bar regarding the same conduct or
otherwise limit other available legal authority, remedies, or
actions.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
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content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the sponsor:
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 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. Brady and a Fair Trial
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
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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, 373 U.S. 83 (1963),
the U.S. Supreme Court held that where a prosecutor in a
criminal case withholds material evidence from the accused
person that is favorable to the accused, this violates the Due
Process Clause of the 14th Amendment. (Ibid at 87, see also
Giglio v. United States, 405 U.S. 150 (1972).) Brady and Giglio
impose on prosecutors a duty to disclose to the defendant
material evidence that would be favorable to the accused. 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 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. (Penal
Code Section 1054.5(b).)
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3. Sanctions for "Brady" Violations
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. (Penal Code §1054. 3(a).) Failure to divulge this
information may result in a variety of sanctions being imposed
on the prosecution including, e.g., striking a witnesses'
testimony or complete reversal of a conviction. "Reversal is
required when there is a 'reasonable possibility' that the error
materially affected the verdict." (United States v. Goldberg,
582 F.2d 483, 488 (9th Cir. 1978), cert. denied, 440 U.S. 973,
59 L. Ed. 2d 790, 99 S. Ct. 1538 (1979).) A federal court
recently described why this obligation is imposed: "Prosecutors
are entrusted with the authority and responsibility to protect
public safety and uphold the integrity of the judicial system.
They perform the latter, in part, by ensuring that criminal
defendants are offered all potentially exculpatory or impeaching
information." (Lackey v. Lewis County, 2009 U.S. Dist. LEXIS
94674 (D. Wash. 2009).) 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.
While sanctions exist for "Brady" violations it is unclear how
effective they have been. 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 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. 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;
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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:
[W]hen 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 postconviction
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 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
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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 their
evidence to the other side before trial, within the
time limits set by law. Failure to follow this 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: _________________ [within the legal time period].
In evaluating the weight and significance of that
evidence, you may consider the effect, if any, of that
late disclosure.
"[However, the fact that the defendant's attorney
failed to disclose evidence [within the legal time
period] is not evidence that the defendant committed a
crime.] ?
5. Report to the State Bar
Under this bill, if a court determines that a prosecuting
attorney has deliberately and intentionally withheld
relevant exculpatory materials or information in violation
of the law and that violation was in bad faith and the
impact of withholding contributed to a guilty verdict,
guilty or nolo contendere plea or seriously limited the
ability of the defendant to present a defense then the
court shall report the attorney to the State Bar.
6. Disqualification of the Attorney or the Office
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This bill provides that in a situation where the court
determines that the prosecuting attorney deliberately and
intentionally withheld relevant exculpatory materials or
information in violation of the law and when the
prosecuting attorney acted in bad faith, the court on its
own motion may disqualify the individual prosecuting
attorney from a case.
The bill also allows the court to disqualify the
prosecuting attorney's office if there is sufficient
evidence that other employees of the prosecuting attorney's
office knowingly participated in or sanctioned the
intentional withholding of the relevant exculpatory
materials or information and that withholding was part of a
pattern and practice of violations.
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