BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1328


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1328 (Weber)


          As Amended  September 4, 2015


          Majority vote


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          |ASSEMBLY:  |      |(June 1, 2015) |SENATE: |      | (September 10,  |
          |           |41-36 |               |        |26-13 |2015)            |
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          |           |      |               |        |      |                 |
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          Original Committee Reference:  PUB. S.


          SUMMARY:  Requires the court to notify the State Bar if a  
          prosecuting attorney has intentionally or knowingly failed to  
          disclose relevant exculpatory evidence, as specified, and  
          authorizes the court to disqualify the prosecuting attorney from  
          the case, and the prosecuting attorney's office if other  
          employees in the office knowingly participated in, or sanctioned  
          the withholding of the exculpatory evidence.


          The Senate amendments:


          1)Provide that if a court determines that a prosecuting attorney  
            has deliberately and intentionally withheld relevant  
            exculpatory material or information in violation of the law,  
            the court shall notify the State Bar of California if the  
            prosecuting attorney acted in bad faith and the impact of the  
            withholding contributed to a guilty verdict, guilty or nolo  








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            contendere plea, or if identified prior to the conclusion of  
            trial seriously limited the ability to present a defense.


          2)Authorize a court, upon its own motion, to disqualify a  
            prosecuting attorney from a case, if he court determines that  
            deliberately and intentionally withheld relevant exculpatory  
            material or information in violation of the law and that the  
            prosecuting attorney acted in bad faith.


          3)Allow a 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 withholding of the relevant exculpatory  
            material or information and that withholding is part of a  
            pattern or practice of violations.


          4)State that these provisions do not limit the authority or  
            discretion of the court or other individuals to make reports  
            to the State Bar of California regarding the same conduct, or  
            otherwise limit other available legal authority, remedies, or  
            actions.


          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;










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             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,  
               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.  









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          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 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.


          AS PASSED BY THE ASSEMBLY, this bill provided that in any  
          criminal trial or proceeding in which the court determines that  
          the prosecuting attorney has intentionally or knowingly failed  








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          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.
          FISCAL EFFECT:  Unknown.  This bill is keyed non-fiscal by the  
          Legislative Counsel.


          COMMENTS:  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. / (916) 319-3744  FN:  








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