BILL ANALYSIS �
AB 885
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CONCURRENCE IN SENATE AMENDMENTS
AB 885 (Ammiano)
As Amended August 22, 2014
Majority vote
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|ASSEMBLY: |41-27|(January 27, |SENATE: |21-14|(August 28, |
| | |2014) | | |2014) |
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Original Committee Reference: PUB. S.
SUMMARY : Provides that in any criminal trial or proceeding in
which the court determines that the prosecuting attorney has
intentionally or knowingly failed to disclose materials and
information required under law, the court may instruct the jury
that the intentional or knowing failure to disclose the
materials and information occurred and that the jury shall
consider the intentional or knowing failure to disclose in
determining whether reasonable doubt of the defendant's guilt
exists.
The Senate amendments delete the provision that the prosecuting
attorney's knowing and intentional failure to disclose materials
and information required under law may be considered by the jury
as circumstantial evidence to support the presence of reasonable
doubt and state instead that it shall be considered in
determining whether reasonable doubt of the defendant's guilt
exists.
EXISTING LAW :
1)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:
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
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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 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.
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
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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
law enforcement.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : According to the author, "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."
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0005429
AB 885
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