BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1328|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 1328
Author: Weber (D)
Amended: 9/4/15 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 7/14/15
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
ASSEMBLY FLOOR: 41-36, 6/1/15 - See last page for vote
SUBJECT: Criminal procedure: withholding of evidence
SOURCE: California Attorneys for Criminal Justice
DIGEST: This bill requires a court to inform the State Bar if
it has clear and convincing evidence that a prosecutor
deliberately and intentionally withheld relevant exculpatory
materials or information in violation of the law and allows the
court to disqualify a prosecutor's office when other employees
of the prosecuting office knowingly and in bad faith sanctioned
the intentional withholding of the relevant or material
exculpatory evidence.
Senate Floor Amendments of 9/4/15 1) require the court to
finding supported by clear and convincing evidence that the
prosecuting attorney deliberately and intentionally withheld
relevant or material exculpatory evidence or information in
violation of the law before informing the state bar; 2) provide
that the prosecutor can be disqualified if he or she acted in
bad faith; 3) provide that in order to disqualify the
prosecuting attorney's office there must be sufficient evidence
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that other employees of the prosecuting attorney's office
knowingly and in bad faith participated in a sanctioned or
intentional withholding of the relevant exculpatory evidence;
and, 4) make technical and conforming changes.
ANALYSIS:
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
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.
(Penal 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
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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. (Penal Code §1054.3(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
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).)
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. (Penal Code
§1054.5(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
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law enforcement. (Penal Code §1054.7.)
This bill:
1)Provides that if a court finds by clear and convincing
evidence that a prosecuting attorney has deliberately and
intentionally withheld relevant or material exculpatory
evidence or information in violation of the law, has shall
inform the 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.
2)Provides that a court may disqualify an individual prosecuting
attorney from a case if the court determines that the
prosecuting acted in bad faith.
3)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 and
in bad faith participated in or sanctioned the intentional
withholding of the relevant or material exculpatory materials
or information and that withholding is part of a pattern and
practice of violations.
4)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.
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
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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 §1054.5(b).)
Under this bill, if a court determines by clear and convincing
evidence that a prosecuting attorney has deliberately and
intentionally withheld relevant or material exculpatory evidence
or information in violation of the law and that violation was in
bad faith and the impact of withholding contributed to a guilty
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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.
This bill provides that in a situation where the court
determines that the prosecuting attorney acted in bad faith it
may disqualify the prosecutor.
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 and in
bad faith 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified 9/4/15)
California Attorneys for Criminal Justice (source)
California Public Defenders Association
Legal Services for Prisoners with Children
OPPOSITION: (Verified 9/4/15)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers 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
ASSEMBLY FLOOR: 41-36, 6/1/15
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AYES: Alejo, Bloom, Bonta, Brown, Burke, Campos, Chau, Chiu,
Chu, Dababneh, Daly, Eggman, Frazier, Cristina Garcia, Eduardo
Garcia, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández,
Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty, Mullin,
Nazarian, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams,
Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Bonilla, Brough,
Chang, Chávez, Cooley, Dahle, Dodd, Beth Gaines, Gallagher,
Gatto, Gray, Grove, Hadley, Harper, Irwin, Jones, Kim, Lackey,
Linder, Maienschein, Mathis, Mayes, Medina, Melendez,
Obernolte, O'Donnell, Patterson, Steinorth, Wagner, Waldron,
Wilk, Wood
NO VOTE RECORDED: Calderon, Cooper, Olsen
Prepared by:Mary Kennedy / PUB. S. /
9/9/15 9:24:15
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