BILL ANALYSIS Ó AB 1909 Page 1 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, AB 1909 Page 2 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: AB 1909 Page 3 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. AB 1909 Page 4 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 AB 1909 Page 5 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." AB 1909 Page 6 Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0003070