BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 885|
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THIRD READING
Bill No: AB 885
Author: Ammiano (D)
Amended: 8/22/14 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/24/14
AYES: Hancock, De Le�n, Liu, Mitchell, Steinberg
NOES: Anderson, Knight
ASSEMBLY FLOOR : 41-27, 1/27/14 - See last page for vote
SUBJECT : Discovery: prosecutorial duty to disclose
information
SOURCE : California Attorneys for Criminal Justice
DIGEST : This bill authorizes a court in any criminal trial or
proceeding in which the court has determined that the
prosecuting attorney has intentionally or knowingly failed to
disclose certain materials and information, as specified, to
instruct the jury that the failure to disclose has occurred and
that the jury shall consider the failure to disclose in
determining whether reasonable doubt of the defendant's guilt
exists.
Senate Floor Amendments of 8/22/14 clarify provisions apply only
to intentional or knowingly acts of withholding evidence, and
states that the jury instruction shall consider the intentional
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or knowing failure to disclose evidence in determining whether
reasonable doubt of the defendant's guilt exists.
ANALYSIS :
Existing law:
1. Requires the prosecuting attorney to disclose to the
defendant or his/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:
A. The names and addresses of persons the prosecutor
intends to call as witnesses at trial;
B. Statements of all defendants;
C. All relevant real evidence seized or obtained as a
part of the investigation of the offenses charged;
D. The existence of a felony conviction of any material
witness whose credibility is likely to be critical to
the outcome of the trial;
E. Any exculpatory evidence; and
F. 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.
2. Requires the defendant and his/her attorney to disclose to
the prosecuting attorney:
A. The names and addresses of persons, other than the
defendant, he/she intends to call as witnesses at
trial, together with any relevant written or recorded
statements of those persons, or reports of the
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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.
3. 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.
4. 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.
5. 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
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law enforcement.
This bill:
1. Authorizes a court in any criminal trial or proceeding in
which the court has determined that the prosecuting attorney
has intentionally or knowingly failed to disclose certain
materials and information, as specified, to instruct the jury
that the failure to disclose has occurred and that the jury
shall consider the failure to disclose in determining whether
reasonable doubt of the defendant's guilt exists.
2. Provides that nothing shall be construed to limit any other
remedy available under law.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 8/25/14)
California Attorneys for Criminal Justice (source)
American Civil Liberties Union
California CURE
California Public Defenders Association
Californians United for a Responsible Budget
Fair Chance Project
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
San Francisco Public Defender
Taxpayers for Improving Public Safety
OPPOSITION : (Verified 8/25/14)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Narcotic Officers' Association
Judicial Council
Los Angeles County District Attorney's Office
Los Angeles Police Protective League
Riverside Sheriffs' Association
ARGUMENTS IN SUPPORT : Friends Committee on Legislation
writes, "Currently the remedy for failing to disclose evidence
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to the defense is mostly limited to corrective action after the
fact, such as ordering a new trial or overturning a guilty
verdict. In as much as these are important legal safeguards,
they still result in a gross miscarriage of justice for those
individuals who wrongly convicted and who languish behind bars
for years - often decades - before obtaining relief. This bill
would result in more just verdicts by giving a defendant a means
to counter a prosecutor's failure to disclose relevant
information during the trial.
"Justice is not served when innocent people are wrongly
convicted; nor is public safety enhanced when the actual
perpetrator remains at large. Wrongful convictions undermine
the perceived legitimacy of our criminal justice system. By
helping to prevent them this bill will protect the accused from
prosecutorial overreach and will help prevent innocent people
from being incarcerated for crimes they did commit. These
measures will help restore confidence in our legal system and
respect for the law. It is also far less expensive and less
time consuming to correct these errors during the initial trial
rather than going through the appellate process."
ARGUMENTS IN 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. Indeed, such remains true even in the situation
where evidence is disclosed after closing argument but before
deliberations.
"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 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
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court to determine whether a piece of information would have
altered a result that has not yet been reached."
ASSEMBLY FLOOR : 41-27, 1/27/14
AYES: Ammiano, Atkins, Bloom, Bocanegra, Bonta, Bradford,
Brown, Buchanan, Ian Calderon, Campos, Chau, Chesbro,
Dababneh, Dickinson, Fong, Frazier, Garcia, Gomez, Gonzalez,
Gordon, Hall, Roger Hern�ndez, Holden, Jones-Sawyer, Levine,
Lowenthal, Mullin, Nazarian, Pan, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Weber,
Wieckowski, Yamada, John A. P�rez
NOES: Achadjian, Allen, Bigelow, Ch�vez, Conway, Cooley, Dahle,
Donnelly, Beth Gaines, Gatto, Gorell, Gray, Grove, Hagman,
Harkey, Jones, Linder, Maienschein, Mansoor, Melendez,
Morrell, Muratsuchi, Patterson, Perea, Wagner, Waldron, Wilk
NO VOTE RECORDED: Alejo, Bonilla, Daly, Eggman, Fox, Logue,
Medina, Nestande, Olsen, V. Manuel P�rez, Quirk-Silva,
Williams
JG:d 8/25/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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