BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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8
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AB 885 (Ammiano)
As Amended April 29, 2013
Hearing date: June 24, 2014
Penal Code
MK:mc
DISCOVERY:
PROSECUTORIAL DUTY TO DISCLOSE INFORMATION
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation: None
Support: San Francisco Public Defender; California Public
Defenders Association; Legal Services for Prisoners
with Children; Fair Chance Project; Californians United
for a Responsible Budget; American Civil Liberties
Union; California CURE; Taxpayers for Improving Public
Safety
Opposition:Association for Los Angeles Deputy Sheriffs;
California Narcotic Officers' Association; Los Angeles
District Attorney's Office; Los Angeles Police
Protective League; Riverside Sheriffs' Association;
California District Attorneys Association; California
State Sheriffs' Association; Judicial Council
Assembly Floor Vote: Ayes 41 - Noes 27
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KEY ISSUE
SHOULD THE LAW PROVIDE THAT IF A PROSECUTOR FAILS TO DISCLOSE
MATERIALS AND INFORMATION AS REQUIRED UNDER THE LAW, THE COURT SHALL
INSTRUCT THE JURY THAT THE FAILURE OCCURRED AND THAT THEY MAY
CONSIDER IT AS CIRCUMSTANTIAL EVIDENCE TO SUPPORT THE PRESENCE OF
REASONABLE DOUBT?
PURPOSE
The purpose of this bill is to provide that when a prosecutor
fails to disclose materials and information as required by law,
the court shall instruct the jury that the failure occurred and
they may consider it as circumstantial evidence to support the
presence of reasonable doubt.
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:
The names and addresses of persons the prosecutor
intends to call as witnesses at trial;
Statements of all defendants;
All relevant real evidence seized or obtained as a part
of the investigation of the offenses charged;
The existence of a felony conviction of any material
witness whose credibility is likely to be critical to the
outcome of the trial;
Any exculpatory evidence; and
Relevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor
intends to call at the trial, including any reports or
statements of experts made in conjunction with the case,
including the results of physical or mental examinations,
scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence at the trial.
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(Penal Code � 1054.1.)
Existing law requires the defendant and his or her attorney to
disclose to the prosecuting attorney:
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
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
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(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
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� 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 in any criminal trial or proceeding in
which the court determines the prosecuting attorney has failed
to disclose specified materials and information required under
current law the court shall instruct the jury that the
intentional failure to disclose the materials and information
occurred and that the jury may consider the failure to disclose
as circumstantial evidence to support the presence of reasonable
doubt.
This bill provides that nothing shall be construed to limit any
other remedy available under law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
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prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
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enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
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.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills - bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
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prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The United States Constitution requires prosecutors in
criminal cases to provide an accused and his/her
attorney all evidence in their possession that may
indicate innocence, erode the credibility of a witness
or is otherwise favorable to the defense [Brady v.
Maryland, 373 U.S. 83 (1963)].
The United States Supreme Court has made clear that
prosecutors are required by the Constitution to provide
the defense with all evidence that may be favorable to
a defendant. Prosecutors are not independent parties
who may "win at all costs." Instead, they are officers
of the court whose exclusive obligation is to pursue
the "truth" and to ensure due process of the law. "A
prosecutor that withholds evidence on demand of an
accused which, if made available, would tend to
exculpate him or reduce the penalty helps shape a trial
that bears heavily on the defendant. That casts the
prosecutor in the role of an architect of a proceeding
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that does not comport with standards of justice."
Brady, 373 U.S. 83, 88. In addition, prosecutors are
required to ensure that law enforcement officers
involved in the case also provide all evidence in their
possession that may be favorable to the defense.
If a prosecutor withholds evidence and a conviction
results, the accused may ask for a new trial while they
sit in a prison cell. However, California law allows a
trial to continue even after a court has identified a
violation. As a result, there are numerous cases in
which persons are convicted based on unfair trials or
are erroneously convicted.
The remedy proposed by AB 885 is designed to be an
immediate response to Brady violations that could avoid
lengthy and costly appeals, and wrongful outcomes of
trials. It merely permits a court to inform a jury
that a particular piece of evidence favorable to the
defense was improperly concealed or was otherwise not
provided to the defense. The jury is free to disregard
this information or consider it in weighing all the
evidence in front of them. For example, if a defendant
claims that he was at a different location at the time
of a crime and the prosecutor hides evidence of a
witness who corroborates the defendant's story, the
jury can consider the defendant's claim in the full
context. This jury instruction remedy has been
explored and endorsed by numerous law review articles
including "A Fair Trial Remedy for Brady Violations,"
by Elizabeth Napier Dewar, in the Yale Law Review.
Case law makes clear that it doesn't matter if the act
was intentional or not, withholding evidence in any
case is a clear violation of the constitution.
2. Brady and a Fair Trial
In a criminal trial, a defendant is presumed innocent and the
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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 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.)
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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 � 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 � 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
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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
during or shortly before a trial, the trial court
should consider instructing the jury on Brady law and
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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. Jury Instruction
This bill provides that when the prosecutor fails to disclose
Brady information or information required under Penal Code
Section 1054.2 the court shall issue a jury instruction
regarding the failure to disclose and that the jury may consider
failure to disclose as circumstantial evidence to support the
presence of reasonable doubt.
There is an existing jury instruction for when there is late
discovery by either the prosecution or the defense but it is
different than the jury instruction contemplated here. CALCRIM
No. 306 states in part:
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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].
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. Support
In support, San Francisco Public Defender Jeff Adachi, states:
This proposed legislation would provide much-needed
accountability for prosecutors who fail to turn over
discovery. The consequences of these routine
violations became clear to San Franciscans in 2010,
when two scandals thrust Brady issues into the
spotlight: A massive breakdown of the SFPD crime lab
and the revelation that thousands of people may have
been convicted based on the testimony of officers with
hidden criminal violations. The investigations that
ensued resulted in countless hours of work for defense
attorneys, police and prosecutors alike, a tremendous
waste of resources for the cash-strapped court system.
The failure of prosecutors to turn over evidence that
may be favorable to the defense continues to challenge
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the integrity of the court system throughout
California. The passage of AB 885 would be an
important first step in rectifying the noncompliance
with the constitutional mandates of Brady.
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6. Opposition
The California District Attorneys Association opposes this bill,
stating:
That said, the most significant infirmity of AB 885 is
the fact that it is useless when considered in the
context of a trial. As of the time of the trial
court's instruction conference (usually before closing
argument, so the advocates can argue the proper
instructions), should the defense have discovered the
Brady/discovery violation by then (so as to ask for
this new instruction), the trial court can always
reopen the evidence to admit the up-to-then-suppressed
material. Having thus been admitted, it is no longer
suppressed, and thus no longer represents a Brady
violation; see, e.g., People v. Verdugo (2010) 50
Cal.4th 279, 281. Indeed, such remains true even in
the situation where evidence is disclosed after closing
argument but before deliberations; see, People v.
Wright (1985) 39 Cal.3d 576, 590-591 [trial court
allowed parties to reopen to consider late evidence;
affirmed].
Even in the more common, but still rare, situation of
the finding of suppressed discovery after the verdict
(which could well result in granting of habeas corpus,
so the defense has an appropriate remedy to pursue), it
is far too late to trigger application of AB 885's
curative instruction. Thus, this statutory fix would
come early enough for the issue to be remedied
completely (rendering the instruction unnecessary), or
so late as to be entirely moot.
AB 885 would essentially require a court to preassess
whether information is Brady material, which raises an
additional problem. Materiality in the context of
Brady requires a showing that there is a reasonable
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probability that the disclosure of the information
would have altered the result of the trial. It would
be a logic-defying feat of judicial wisdom for a trial
court to determine whether a piece of information would
have altered a result that has not yet been reached.
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