BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1909 (Lopez) - Falsifying evidence
-----------------------------------------------------------------
| |
| |
| |
-----------------------------------------------------------------
|--------------------------------+--------------------------------|
| | |
|Version: May 27, 2016 |Policy Vote: PUB. S. 6 - 1 |
| | |
|--------------------------------+--------------------------------|
| | |
|Urgency: No |Mandate: Yes |
| | |
|--------------------------------+--------------------------------|
| | |
|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
| | |
-----------------------------------------------------------------
This bill does not meet the criteria for referral to the
Suspense File.
Bill
Summary: AB 1909 would provide that a prosecuting attorney who
intentionally and in bad faith alters, modifies, or withholds
any evidence, knowing that it is relevant and material to the
outcome of the case is guilty of a felony, as specified.
Fiscal
Impact:
State prisons : Likely minor, if any, increase in state costs
(General Fund) for new commitments to state prison. This bill
is unlikely to have an impact on the state prison population,
as it is projected that the incidence of a prosecuting
attorney with a qualifying serious or violent felony
conviction that would prompt a state prison sentence would be
rare. To the extent one commitment to state prison should
result from this measure, annual costs of $29,000 (General
Fund) could be incurred.
Local jails : Potential minor increase in non-reimbursable
local enforcement and incarceration costs (Local Funds),
offset to a degree by fine revenue to the extent a prosecuting
AB 1909 (Lopez) Page 1 of
?
attorney is charged and convicted of this jail felony. DOJ
statistics indicate no felony convictions and only five
misdemeanor convictions over the past three years for the
existing offense of intentionally altering or concealing
evidence.
Background: Existing law makes it a misdemeanor for a person, or a felony
for a peace officer, to knowingly, willfully, intentionally, and
wrongfully alter, modify, plant, place, manufacture, conceal, or
move any physical matter, digital image, or video recording,
with the specific intent that the action will result in a person
being charged with a crime. Existing law provides that a felony
offense is punishable by two, three, or five years in state
prison. (Penal Code § 141(b).)
Under existing law, upon receiving information that a
prosecuting attorney may have deliberately and intentionally
withheld relevant or material exculpatory evidence or
information in violation of law, a court may make a finding
supported by clear and convincing evidence that a violation
occurred. The court is required to inform the State Bar of that
violation, and may hold a hearing to consider whether a
violation in fact occurred, if the prosecuting attorney acted in
bad faith and the impact of the withholding contributed to a
guilty verdict, guilty or nolo contendere plea, or, if
identified before conclusion of trial, seriously limited the
ability of a defendant to present a defense.
If a court finds that a violation occurred in bad faith, the
court may disqualify an individual prosecuting attorney from a
case. Upon a determination by a court to disqualify an
individual prosecuting attorney, the defendant or his or her
counsel may file and serve a notice of a motion to disqualify
the prosecuting attorney's office if there is sufficient
evidence that other employees of the prosecuting attorney's
office knowingly and in bad faith participated in or sanctioned
the intentional withholding of the relevant or material
exculpatory evidence or information and that withholding is part
of a pattern and practice of violations. (Penal Code § 1424.5.)
AB 1909 (Lopez) Page 2 of
?
Under existing law, a court is required to notify the State Bar
of any of the following:
A final order of contempt imposed against an attorney
that may involve grounds warranting discipline under this
chapter. The court entering the final order shall transmit
to the State Bar a copy of the relevant minutes, final
order, and transcript, if one exists.
Whenever a modification or reversal of a judgment in a
judicial proceeding is based in whole or in part on the
misconduct, incompetent representation, or willful
misrepresentation of an attorney.
The imposition of any judicial sanctions against an
attorney, except sanctions for failure to make discovery or
monetary sanctions of less than $1,000.
The imposition of any civil penalty upon an attorney
pursuant to Family Code § 8620.
A violation described in Penal Code § 1424.5 described
above.
The State Bar is required to investigate any matter reported as
to the appropriateness of initiating disciplinary action against
the attorney. (Business and Professions Code § 6086.7.)
In the study, Preventable Error: A Report on Prosecutorial
Misconduct in California 1997-2009 (K. Ridolfi, Veritas
Initiative, Santa Clara University School of Law, 2010), which
provides a quantitative and actionable study on the extent of
prosecutorial misconduct in California, how the justice system
identifies and addresses it, and its cost and consequences,
including the wrongful conviction of innocent people, the
Executive Summary notes the following:
The Misconduct Study shows that those empowered to
address the problem-California state and federal
AB 1909 (Lopez) Page 3 of
?
courts, prosecutors and the California State
Bar-repeatedly fail to take meaningful action.
Courts fail to report prosecutorial misconduct
(despite having a statutory obligation to do so),
prosecutors deny that it occurred, and the
California State Bar almost never disciplines it.
Significantly, of the 4,741 public disciplinary
actions reported in the California State Bar
Journal from January 1997 to September 2009, only
10 involved prosecutors, and only six of these were
for conduct in the handling of a criminal case.
That means that the State Bar publicly disciplined
only one percent of the prosecutors in the 600
cases in which the courts found prosecutorial
misconduct and NCIP researchers identified the
prosecutor.
The failure of judges, prosecutors and the
California State Bar to live up to their
responsibilities to report, monitor and discipline
prosecutorial misconduct fosters misconduct,
undercuts public trust and casts a cloud over those
prosecutors who do their jobs properly. The problem
is critical.
Proposed Law:
This bill would provide 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 felony punishable by imprisonment pursuant to Penal
Code § 1170(h) for 16 months, or two or three years.
AB 1909 (Lopez) Page 4 of
?
Prior
Legislation: AB 256 (Jones-Sawyer) Chapter 463/2015 expands the
prohibition against knowingly, willfully, and intentionally
tampering with evidence to include video recordings owned by
another.
AB 1328 (Weber) Chapter 467/2015 provides that if a court
determines that a prosecuting attorney has deliberately and
intentionally withheld relevant exculpatory material or
information in violation of the law, the court shall notify the
State Bar of California if the prosecuting attorney acted in bad
faith and the impact of the withholding contributed to a guilty
verdict, guilty or nolo contendere plea, or if identified prior
to the conclusion of trial seriously limited the ability to
present a defense. This bill authorizes a court, upon its own
motion, to disqualify a prosecuting attorney from a case, if the
court determines that he or she deliberately and intentionally
withheld relevant exculpatory material or information in
violation of the law and that the prosecuting attorney acted in
bad faith.
Staff
Comments: By making it a felony for a prosecuting attorney to
intentionally modify or withhold evidence, as specified, this
bill could result in felony rather than misdemeanor convictions,
resulting in imprisonment in county jail for 16 months, two
years, or three years. It is estimated that the occurrences in
which a prosecuting attorney would additionally have a current
or prior felony conviction for a serious or violent felony would
be rare. As a result, minor, if any, state incarceration costs
are estimated to result from this measure.
The number of future felony convictions is unknown but
anticipated to be minor. Statistics from the Department of
Justice indicate no felony convictions and only five misdemeanor
convictions over the past three years for the existing offense.
-- END --
AB 1909 (Lopez) Page 5 of
?