BILL ANALYSIS Ó
AB 1909
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Date of Hearing: April 12, 2016
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1909 (Lopez) - As Amended March 28, 2016
As Proposed to be Amended in Committee
SUMMARY: Expands existing provisions of law that make it a
felony for a peace officer to willfully and intentionally tamper
with evidence to include a prosecutor who willfully and
intentionally withholds exculpatory evidence. Specifically,
this bill:
1)Provides that a prosecuting attorney who knowingly, willfully,
and intentionally wrongfully alters, modifies, or withholds
any physical matter, digital image, video recording, or
relevant exculpatory material or information that is required
to be disclosed, with the specific intent that the physical
matter, digital image, video recording, or relevant
exculpatory material or information will be concealed or
destroyed, or fraudulently represented as the original
evidence upon a trial, proceeding, or inquiry is guilty of a
felony.
2) Makes the felony offense of a prosecuting attorney who
willfully and intentionally withholds exculpatory evidence
punishable by 16 months, 2, or 3 years in a county jail.
EXISTING LAW:
AB 1909
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1)Makes it a misdemeanor for a person to knowingly, willfully,
and intentionally alter, modify, plant, place, manufacture,
conceal, or move any physical matter, with specific intent
that the action will result in a person being charged with a
crime, or with the specific intent that the physical matter be
will be wrongfully produced as genuine or true upon any trial,
proceeding or inquiry. (Pen. Code, § 141, subd. (a).)
2)Makes it a felony for a peace officer to knowingly, willfully,
and intentionally alter, modify, plant, place, manufacture,
conceal, or move any physical matter, with specific intent
that the action will result in a person being charged with a
crime, or with the specific intent that the physical matter be
will be wrongfully produced as genuine or true upon any trial,
proceeding or inquiry. (Pen. Code, § 141, subd. (b).)
3)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,
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scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence at the trial.
(Pen. Code, § 1054.1.)
4)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. (Pen. Code, § 1054.3 subd. (a).)
5)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. (Pen. Code, § 1054.5, subd. (b).)
6)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. (Pen. Code, § 1054.5,
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subd. (c).)
7)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. (Pen. Code, § 1054.7.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Prosecutorial
misconduct is an epidemic in our nation. Bad-acting
prosecutors tarnish the image of otherwise hard-working,
justice-seeking, and law-abiding prosecutors. However, this
small group of bad-acting prosecutors have a destructive
impact on our criminal justice system. Not only do these
bad-acting prosecutors put their conviction rate ahead of
seeking justice, these bad actors often send innocent people
to prison for a very long time. These bad actions forces the
public to lose confidence in the system while costing the
systems millions of dollars in costly appeals.
AB 1909 would provide much needed oversight, accountability,
and criminal consequences for these bad actors. Currently,
there are no criminal consequences for prosecutors who
violates the rules and send innocent people to prison. The
sanctions currently in place rarely, if ever, are used against
these bad actors. These bad-acting prosecutors must be held
accountable for their life-altering misdeeds. This measure
would provide a much needed deterrent effect and hopefully
lessen the number of wrongfully convicted.
2)Background: In a criminal trial, a defendant is presumed
innocent and the prosecution has the burden to prove beyond a
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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 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 (1963) 373 U.S. 83,
the Supreme Court held that a defendant has a constitutionally
protected privilege to request and obtain from the prosecution
evidence that is either material to the guilt of the defendant
or relevant to the punishment to be imposed. 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
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discovery, however, an informal discovery request must be made
before a party can request formal court enforcement of
discovery. (Pen. Code, § 1054.5, subd.(b).)
3)Current Remedies: 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. (Pen.
Code, § 1054. 3, subd.(a).) If either party intentionally
fails to disclose the required evidence, the court may make
any order necessary to enforce the disclosure requirements,
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. 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.
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 post-conviction stage. And 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; Dewar, A Fair
Trial Remedy for Brady Violations , Yale Law Journal (2006) p.
1454.]
"When a prosecutor is inclined against disclosing a piece of
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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 "when 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 post-conviction 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 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.)
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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 to the other
their evidence to the other before trial, within the rime
limits set by law. Failure to follow the 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
[description of the evidence that was not disclosed] within
the legal time period."
"In evaluating the weight and significance of that evidence, you
may consider the effect, if any, of that late discovery."
Is this instruction sufficient to remedy possible prejudice as a
result of late disclosure of required evidence rather than
criminalizing this conduct?
5)Argument in Support: According to the California Attorneys
for Criminal Justice, "" This bill would create criminal
penalties for bad-acting prosecuting attorneys that knowingly
and intentionally withhold exculpatory evidence from the
defense in violation of their ethical, state and
constitutional duties under Brady v. Maryland, 373 U.S. 83
(1963).
"Firstly, we would like to acknowledge that the large majority
of prosecuting attorneys do their jobs well, with integrity
and dignity. These prosecutors seek to find justice above all
other matters. However, the small group of bad-actors spoil
the reputation of prosecutors.
"CACJ has made it an organizational priority to highlight and
address issues of prosecutorial misconduct. In 2014, prominent
9th Circuit Justice, Alex Kozinski, stated that prosecutorial
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misconduct is an epidemic in our criminal justice system.
Nationwide, we've seen stories of innocent persons being sent
to prison for decades because of a bad-acting prosecutor
placing their self-interest and conviction rate ahead of
seeking justice.
"This epidemic has created a much larger growing lack of
confidence in our criminal justice system. According to the
National Registry of Exonerations, a project of the University
of Michigan Law School, there has been 1.700 exonerations
nationwide since 1989. Forty five (45) percent of the
exonerations found were as a result of official misconduct,
which is defined as police, prosecutors, or other governmental
officials significantly abusing their authority or the
judicial process in a manner that contributed to the
exoneree's conviction. California has also experienced a
number of Brady violation.
"In a report by the Veritas Initiative from the Santa Clara
School of Law, a review on 10 years of prosecutorial
misconduct occurring in California showed that California
court repeatedly failed to take meaningful action when the
court found that the prosecutorial misconduct was harmful.
"Current law, as passed last year in AB 1328, requires a court
to notify the state bar of such a knowing and intentional
Brady violation. However, besides this option, there are no
criminal consequences for such intentional acts. When a
prosecutor intentionally withholds exculpatory evidence, an
unknowing and innocent defendant can be convicted, sentence,
and incarceration for a long time. These bad-acting
prosecutors rarely, if ever, face any actually consequences
for their actions."
6)Argument in Opposition: According to the California
District Attorneys Association, "This bill would create a
new felony, applicable only to prosecuting attorneys who
fail to meet their statutory and constitutional discovery
obligations.
"Proposition 115 (1990) established Penal Code section 1054
and codified the principle of reciprocal discovery, under
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which both the prosecution and defense are obligated to
turn over specified materials. When either side fails to
comply with its statutory discovery obligations, PC
1054.5 provides the court with authority to grant a
variety of remedies, depending on the circumstances. The
court may order immediate disclosure of the material,
initiate contempt proceedings, delay or prohibit
testimony, grant a continuance, "or any other lawful
order." Additionally, individual attorneys also face
State Bar sanctions, including potential disbarment, for
unethical conduct, and, in cases involving the
intentional destruction or secreting of evidence,
criminal sanctions under PC 141(a).
"Further, just last year, this Legislature passed AB 1328
(Chapter 467, Statutes of 2015), which requires a court
to inform the State Bar when a prosecutor deliberately
and intentionally withholds relevant or material
exculpatory evidence or information in violation of law,
and also allows for the disqualification of an individual
prosecutor, or even an entire office, when this type of
misconduct is found to exist.
"Now, before the ink is even dry on the Governor's
signature of that bill, comes an outrageous attempt to
criminalize prosecutors for conduct that falls well short
of criminal.
"AB 1909 would make it a felony for a prosecutor to
"knowingly, willfully, intentionally, and wrongfully"
tamper with or withhold physical evidence, along with
"relevant exculpatory material or information". In the
context of criminal discovery, courts have held that
"knowing" violations may include negligent or inadvertent
conduct. Therefore, this bill may criminalize
prosecutors who unintentionally turn over discovery once
trial has commenced.
"As previously mentioned, AB 1909 creates a new felony
applying only to the prosecution, which we believe
violates Proposition 115 (1990). Since the language only
makes it a felony for the prosecutor to engage in this
type of conduct, while the defense attorney would only be
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subject to the misdemeanor in existing PC 141(a),
adopting the measure would upset the constitutionally
mandated balance of reciprocity and duality in both the
requirements and penalties that are the cornerstones of
criminal discovery in California.
"To the extent that discovery violations are committed by
either the prosecution or the defense in a criminal matter,
existing law already provides for a variety of remedies,
including, in egregious cases, prosecution under PC 141(a).
We believe that current sanctions are sufficient to police
this type of misconduct."
7)Prior Legislation:
a) AB 256 (Jones-Sawyer), Chapter 463, Statutes of 2015,
expanded the prohibition against knowingly, willfully, and
intentionally tampering with evidence to include digital
images and video recordings owned by another.
b) AB 1328 (Weber), Chapter 467, Statutes of 2015, required
the court to notify the State Bar if a prosecuting attorney
has intentionally failed to disclose relevant exculpatory
evidence, and authorized 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.
REGISTERED SUPPORT / OPPOSITION:
Support
California Attorneys for Criminal Justice
California Public Defenders Association
Opposition
California District Attorneys Association
Analysis Prepared
by: Gregory Pagan / PUB. S. / (916) 319-3744
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