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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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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