BILL ANALYSIS Ó
AB 1909
Page 1
ASSEMBLY THIRD READING
AB
1909 (Lopez)
As Amended April 19, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |4-2 |Jones-Sawyer, Lopez, |Melendez, Lackey |
| | |Low, Santiago | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |13-5 |Gonzalez, Bloom, |Bigelow, Gallagher, |
| | |Bonilla, Bonta, |Jones, Obernolte, |
| | |Calderon, Daly, |Wagner |
| | |Eggman, Eduardo | |
| | |Garcia, McCarty, | |
| | |Holden, Santiago, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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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,
AB 1909
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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:
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.
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.
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:
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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,
scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence at the trial.
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.
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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.
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.
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.
FISCAL
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EFFECT: According to the Assembly Appropriations Committee,
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: 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."
AB 1909
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Analysis Prepared by:
Gregory Pagan/ PUB. S. / (916) 319-3744 FN:
0002882