BILL ANALYSIS Ó
AB 1909
Page 1
Date of Hearing: May 4, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
1909 (Lopez) - As Amended April 19, 2016
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill expands existing provisions of law which 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, and makes the
felony offense punishable by 16 months, 2, or 3 years in a
county jail.
AB 1909
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FISCAL EFFECT:
Likely minor fiscal impact to the Department of Corrections and
Rehabilitation (CDCR). If one prosecutor were convicted per
year for tampering with evidence, who had a prior or current
qualifying felony that required state imprisonment, the annual
cost to CDCR would be approximately $29,000 the first year and
$58,000 the second year, $87,000 the third year.
Minor, nonreimbursable costs for incarceration, offset to a
degree by increased fine revenue, to the extent the misdemeanor
results in incarceration.
COMMENTS:
1)Background. Current law 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 will be wrongfully produced as
genuine or true upon any trial, proceeding or inquiry.
Current law makes it a felony for a peace officer to
knowingly, willfully, and intentionally alter, modify, plant,
place, manufacture, conceal, or move any physical matter,
digital image, video recording, or other exculpatory material,
with specific intent that the action will result in a person
being charged with a crime, or with the specific intent that
the evidence will be wrongfully produced as genuine or true
upon any trial, proceeding or inquiry.
2)Purpose. According to the author, bad-acting prosecutors
AB 1909
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tarnish the image of otherwise hard-working, justice-seeking,
and law-abiding prosecutors, and they have a destructive
impact on our criminal justice system. Their bad actions often
send innocent people to prison for a very long time. These
actions force the public to lose confidence in the system
while costing the systems millions of dollars in costly
appeals.
The author further states, "AB 1909 would provide much needed
oversight, accountability, and criminal consequences for these
bad actors. Currently, there are no criminal consequences for
prosecutors who violate 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."
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. ? a recent empirical study of
all 5,760 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."
3)Support: According to the California Attorneys for Criminal
Justice, "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 incarcerated for a long time. These
bad-acting prosecutors rarely, if ever, face any actually
consequences for their actions."
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4)Opposition. According to the California District Attorneys
Association, "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.
"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.
Analysis Prepared by:Pedro Reyes / APPR. / (916)
319-2081
AB 1909
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