BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1909


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          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.  
          








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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  








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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



















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