BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1909|
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THIRD READING
Bill No: AB 1909
Author: Lopez (D)
Amended: 5/27/16 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 6/28/16
AYES: Hancock, Glazer, Leno, Liu, Monning, Stone
NOES: Anderson
SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/11/16
AYES: Lara, Beall, Hill, McGuire, Mendoza, Nielsen
NO VOTE RECORDED: Bates
ASSEMBLY FLOOR: 60-18, 6/2/16 - See last page for vote
SUBJECT: Falsifying evidence
SOURCE: California Attorneys for Criminal Justice
DIGEST: This bill 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 intentionally
and in bad faith withholds exculpatory evidence.
ANALYSIS:
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
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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).)
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. (Penal Code §141 (b).)
3)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).)
4)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. (Penal Code § 1054.5, subd. (b).)
5)Allows a court to prohibit the testimony of a witness upon a
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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).)
6)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
jail felony punishable by 16 months, two or three years.
Background
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
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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,
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 16 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.)
According to the sponsor, 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
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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. 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
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According to the Senate Appropriations Committee:
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 bill, 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
attorney is charged and convicted of this jail felony.
Department of Justice 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.
SUPPORT: (Verified8/12/16)
California Attorneys for Criminal Justice (source)
Alameda County Public Defender
California Public Defenders Association
Communities United Restorative Youth Justice
Santa Ana Boys and Men of Color
OPPOSITION: (Verified8/12/16)
None received
ASSEMBLY FLOOR: 60-18, 6/2/16
AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom,
Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau,
Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman,
Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto,
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Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger
Hernández, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Lopez,
Low, Maienschein, McCarty, Medina, Mullin, Nazarian,
O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas,
Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood,
Rendon
NOES: Travis Allen, Bigelow, Brough, Chávez, Dahle, Grove,
Harper, Jones, Kim, Mathis, Mayes, Melendez, Obernolte,
Patterson, Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Beth Gaines, Linder
Prepared by:Mary Kennedy / PUB. S. /
8/15/16 20:17:22
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