BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1909


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          ASSEMBLY THIRD READING


          AB  
          1909 (Lopez)


          As Amended  May 27, 2016


          Majority vote


           ------------------------------------------------------------------- 
          |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           |                     |
          |                |     |                      |                     |
          |                |     |                      |                     |
           ------------------------------------------------------------------- 


          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,  








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          this bill:
          1)Provides that a prosecuting attorney who intentionally and in  
            bad faith alters, modifies, or withholds any physical matter,  
            digital image, video recording, or relevant exculpatory  
            material or information, knowing it is relevant and material  
            to the outcome of the case, 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 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."









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          Analysis Prepared by:                                             
                          Gregory Pagan / PUB. S. / (916) 319-3744  FN:  
          0003070