BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                       AB 1909|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   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  








                                                                    AB 1909  
                                                                    Page  2


            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  







                                                                    AB 1909  
                                                                    Page  3


            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  







                                                                    AB 1909  
                                                                    Page  4


          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  







                                                                    AB 1909  
                                                                    Page  5


            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







                                                                    AB 1909  
                                                                    Page  6




          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,  







                                                                    AB 1909  
                                                                    Page  7


            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


                                   ****  END  ****