BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1909 Hearing Date: June 28, 2016
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|Author: |Lopez |
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|Version: |May 27, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Falsifying Evidence
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation: AB 256 (Jones-Sawyer) Chapter 463,
Stats. 2015
AB 1328 (Weber) Chapter 467, Stats. 2015
Support: Alameda County Public Defender; California Public
Defenders Association; Communities United Restorative
Youth Justice; Santa Ana Boys and Men of Color
Opposition:None known
Assembly Floor Vote: 60 - 18
PURPOSE
The purpose of this bill is to expand 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
intentionally and in bad faith withholds exculpatory evidence.
Existing law makes it a misdemeanor for a person to knowingly,
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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. (Penal Code § 141 (a).)
Existing 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, 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. (Penal Code §141 (b).)
Existing law 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: a) The names
and addresses of persons the prosecutor intends to call as
witnesses at trial; b) Statements of all defendants; 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. (Penal Code §141 (a).)
Exiting law 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. (Penal Code
§1054.3 (a).)
Existing law states, before a party may seek court enforcement
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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. (Penal Code § 1054.5, subd. (b).)
Existing law 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. (Penal Code §
1054.5 (c).)
Existing law 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. (Penal Code § 1054.7.)
This bill 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 that 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
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jail felony punishable by 16 months, 2 or 3 years.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
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population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Current law does not adequately provide a deterrent for
bad-acting prosecutors from withholding exculpatory evidence
from the defense. Current law 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
incarceration for a long time. These bad-acting prosecutors
rarely, if ever, face any actually consequences for their
actions. AB 1909 would provide an actual consequence for
such bad actors in hopes of deterring such unscrupulous
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actions.
One of the most comprehensive studies on the issue of
prosecutorial misconduct in California comes from the
Veritas Initiative out of Santa Clara University. See
Preventable Error: A Report on Prosecutorial Misconduct
in California.
Last year, Judge Alex Kozinski highlighted the issue
making national headlines coming out of Riverside
County. Judge Kozinski famously stated in 2014 that
prosecutorial misconduct is an epidemic in our
country.
2. Brady and a Fair Trial
In a criminal trial, a defendant is presumed innocent and the
prosecution has the burden to prove beyond a reasonable doubt
that the defendant is guilty. In order to ensure a fair trial,
the prosecuting attorney has a constitutional and statutory duty
to disclose specified information to the defendant. The jury
instructions on reasonable doubt states, "Proof beyond a
reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open
to some possible or imaginary doubt. In deciding whether the
people have proved their case beyond a reasonable doubt, you
must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence
proves the defendant[s] guilty beyond a reasonable doubt,
(he/she/they) (is/are) entitled to an acquittal and you must
find (him/her/them) not guilty." (CALCRIM No. 103.)
In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963),
the U.S. Supreme Court held that where a prosecutor in a
criminal case withholds material evidence from the accused
person that is favorable to the accused, this violates the Due
Process Clause of the 14th Amendment. (Ibid at 87, see also
Giglio v. United States, 405 U.S. 150 (1972).) Brady and Giglio
impose on prosecutors a duty to disclose to the defendant
material evidence that would be favorable to the accused. The
Supreme Court in a later case explained "[u]nder the Due Process
Clause of the Fourteenth Amendment, criminal prosecutions must
comport with prevailing notions of fundamental fairness. We have
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long interpreted this standard of fairness to require that
criminal defendants be afforded a meaningful opportunity to
present a complete defense. To safeguard that right, the Court
has developed 'what might loosely be called the area of
constitutionally guaranteed access to evidence.' [Citing United
States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.] Taken
together, this group of constitutional privileges delivers
exculpatory evidence into the hands of the accused, thereby
protecting the innocent from erroneous conviction and ensuring
the integrity of our criminal justice system." (California v.
Trombetta (1984) 467 U.S. 479, 485.)
Even in the absence of a specific request, the prosecution has a
constitutional duty to turn over exculpatory evidence that would
raise a reasonable doubt about the defendant's guilt. (United
States v. Agurs (1996) 427 U.S. 97,112.) Generally, a specific
request is not necessary for parties to receive discovery,
however, an informal discovery request must be made before a
party can request formal court enforcement of discovery. (Penal
Code Section 1054.5(b).)
3. Sanctions for "Brady" Violations
The prosecuting attorney is required, both constitutionally and
statutorily, to disclose specified information and materials to
the defendant. In California, the defendant is also statutorily
required to disclose specified information and materials to the
prosecution. (Penal Code §1054. 3(a).) Failure to divulge this
information may result in a variety of sanctions being imposed
on the prosecution including, e.g., striking a witnesses'
testimony or complete reversal of a conviction. "Reversal is
required when there is a 'reasonable possibility' that the error
materially affected the verdict." (United States v. Goldberg,
582 F.2d 483, 488 (9th Cir. 1978), cert. denied, 440 U.S. 973,
59 L. Ed. 2d 790, 99 S. Ct. 1538 (1979).) A federal court
recently described why this obligation is imposed: "Prosecutors
are entrusted with the authority and responsibility to protect
public safety and uphold the integrity of the judicial system.
They perform the latter, in part, by ensuring that criminal
defendants are offered all potentially exculpatory or impeaching
information." (Lackey v. Lewis County, 2009 U.S. Dist. LEXIS
94674 (D. Wash. 2009).) The court may also advise the jury of
any failure or refusal to disclose and of any untimely
disclosure. (Penal Code Section 1054. 5(b).) Under existing law,
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courts have the discretion in determining the appropriate
sanction that should be imposed because of the untimely
disclosure of discoverable records and evidence.
While sanctions exist for "Brady" violations it is unclear how
effective they have been. 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."
The very nature of Brady violations-that evidence was
suppressed-means that defendants learn of violations in their
cases only fortuitously, when the evidence surfaces through an
alternate channel. Nevertheless, a recent empirical study of
all 5760 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 postconviction
stage. A study of 11,000 cases involving prosecutorial
misconduct in the years since the Brady decision identified 381
homicide convictions that were vacated "because prosecutors hid
evidence or allowed witnesses to lie." (Footnotes omitted;
Dewar, A Fair Trial Remedy for Brady Violations, Yale Law
Journal (2006) p. 1454.)
When a prosecutor is inclined against disclosing a
piece of arguably favorable evidence, few
considerations weigh in favor of disclosure. Trial
courts are reticent to grant motions to compel
disclosure of alleged Brady evidence, examine
government files, or hold prosecutors in contempt.
Defendants only rarely unearth suppressions. And, even
when they do, their convictions are rarely overturned
because they face a tremendous burden on appeal:
showing that the suppression raises a 'reasonable
probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have
been different.' Finally, lawyers' professional
associations do not frequently discipline prosecutors
for even the most egregious Brady violations.
(Footnotes omitted; Id. at p. 1456.)
The author of the article proposed:
[W]hen suppressed favorable evidence comes to light
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during or shortly before a trial, the trial court
should consider instructing the jury on Brady law and
allowing the defendant to argue that the government's
failure to disclose the evidence raises a reasonable
doubt about the defendant's guilt. . . .[I]nstead of
curing the Brady violation through reversal on appeal,
the remedy corrects the trial itself. In contributing
to a jury's decision to acquit, the remedy would
provide more immediate relief than a postconviction
reversal. Yet, because the remedy would not free or
even grant a new trial to defendants of whose guilt the
government has sufficient evidence, the remedy would
not run afoul of those who decry the social costs of
other 'punishments' for prosecutors, such as
overturning convictions or dismissing charges.
(Footnotes omitted; Id. at pp. 1456-1457.) The remedy
would exist primarily for the benefit of defendants
when the government's tardiness or failure to disclose
favorable evidence permanently prejudiced the defense.
Permanent prejudice might consist of the disintegration
of tangible evidence or the death or disappearance of a
witness or alternative suspect. In such cases, neither
granting a continuance for further investigation nor
the fact that the defendant may be able to make some
use of the belatedly disclosed evidence is a sufficient
remedy. (Footnotes omitted; Id. at p. 1458.)
4. CALCRIM 306 Jury Instruction
In addition to sanctions, untimely disclosure of required
evidence is addressed in the CALCRIM 306 jury instruction, which
reads in relevant part:
Both the People and the defense must disclose their
evidence to the other side before trial, within the
time limits set by law. Failure to follow this rule
may deny the other side the chance to produce all
relevant evidence, to counter opposing evidence, or to
receive a fair trial.
An attorney for the (People/defense) failed to
disclose: _________________ [within the legal time period].
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In evaluating the weight and significance of that
evidence, you may consider the effect, if any, of that
late disclosure.
"[However, the fact that the defendant's attorney
failed to disclose evidence [within the legal time
period] is not evidence that the defendant committed a
crime.] ?
5. Jail Felony for Intentionally and in Bad Faith Altering,
Modifying or Withholding Physical Evidence
This bill would make it a jail felony for a prosecuting attorney
to intentionally and in bad faith alter, modify or withhold any
physical matter, digital image, video recording, or relevant
exculpatory material or information, knowing that it is relevant
and material to the outcome of the case with the specific intent
that the material or information will be concealed or destroyed
or fraudulently represented as the original evidence upon a
trial, proceeding or inquiry.
6. Support
According to the California Attorneys for Criminal Justice:
This bill would create criminal penalties for
bad-acting prosecuting attorneys that knowingly and
intentionally withhold exculpatory evidence from the
defense in violation of their ethical, state and
constitutional duties under Brady v. Maryland, 373
U.S. 83 (1963).
Firstly, we would like to acknowledge that the large
majority of prosecuting attorneys do their jobs well,
with integrity and dignity. These prosecutors seek to
find justice above all other matters. However, the
small group of bad-actors spoil the reputation of
prosecutors.
CACJ has made it an organizational priority to
highlight and address issues of prosecutorial
misconduct. In 2014, prominent 9th Circuit Justice,
Alex Kozinski, stated that prosecutorial misconduct is
an epidemic in our criminal justice system.
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Nationwide, we've seen stories of innocent persons
being sent to prison for decades because of a
bad-acting prosecutor placing their self-interest and
conviction rate ahead of seeking justice.
This epidemic has created a much larger growing lack
of confidence in our criminal justice system.
According to the National Registry of Exonerations, a
project of the University of Michigan Law School,
there has been 1.700 exonerations nationwide since
1989. Forty five (45) percent of the exonerations
found were as a result of official misconduct, which
is AB 1909 Page 6 defined as police, prosecutors, or
other governmental officials significantly abusing
their authority or the judicial process in a manner
that contributed to the exoneree's conviction.
California has also experienced a number of Brady
violations.
In a report by the Veritas Initiative from the Santa
Clara School of Law, a review on 10 years of
prosecutorial misconduct occurring in California
showed that California court repeatedly failed to take
meaningful action when the court found that the
prosecutorial misconduct was harmful.
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
incarceration for a long time. These bad-acting
prosecutors rarely, if ever, face any actually
consequences for their actions.
-- END -
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