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 ****