BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1328| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1328 Author: Weber (D) Amended: 7/8/15 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 5-2, 7/14/15 AYES: Hancock, Glazer, Leno, Liu, Monning NOES: Anderson, Stone ASSEMBLY FLOOR: 41-36, 6/1/15 - See last page for vote SUBJECT: Criminal procedure: withholding of evidence SOURCE: California Attorneys for Criminal Justice DIGEST: This bill requires a court to inform the State Bar if it finds that a prosecutor deliberately and intentionally withheld relevant exculpatory materials or information in violation of the law and to allow the court on its own motion to disqualify a person or an office from prosecuting a case when it finds a prosecutor deliberately and intentionally withheld relevant exculpatory materials under specified circumstances. ANALYSIS: 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: AB 1328 Page 2 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. (Penal Code §1054.1.) 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. (Penal Code §1054.3(a).) 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 AB 1328 Page 3 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).) 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. (Penal Code §1054.5(c).) 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. (Penal Code §1054.7.) This bill: 1)Provides that if a court determines that a prosecuting attorney has deliberately and intentionally withheld relevant exculpatory materials or information in violation of the law, the court shall inform the State Bar of California of the violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or if identified before the conclusion of the trial seriously limited the ability of a defendant to present a defense. AB 1328 Page 4 2)Provides that a hearing to consider with a prosecuting attorney or his or her office should be disqualified shall be initiated only upon the court's own motion. 3)Provides that upon its own motion, a court may disqualify an individual prosecuting attorney from a case if the court determines that the prosecuting attorney deliberately and intentionally withheld relevant exculpatory materials or information in that case in violation of the law and that the prosecuting attorney acted in bad faith. 4)Provides that the court may also disqualify the prosecuting attorney's office if there is sufficient evidence that other employees of the prosecuting attorney's office knowingly participated in or sanctioned the intentional withholding of the relevant exculpatory materials or information and that withholding is part of a pattern and practice of violations. 5)Provides that this section does not limit the authority or discretion of the court or other individuals to make reports to the State Bar regarding the same conduct or otherwise limit other available legal authority, remedies, or actions. Background In a criminal trial, a defendant is presumed innocent and the 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 AB 1328 Page 5 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.) 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).) Under this bill, if a court determines that a prosecuting attorney has deliberately and intentionally withheld relevant exculpatory materials or information in violation of the law and that violation was in bad faith and the impact of withholding contributed to a guilty verdict, guilty or nolo contendere plea or seriously limited the ability of the defendant to present a defense then the court shall report the attorney to the State Bar. This bill provides that in a situation where the court determines that the prosecuting attorney deliberately and intentionally withheld relevant exculpatory materials or information in violation of the law and when the prosecuting attorney acted in bad faith, the court on its own motion may AB 1328 Page 6 disqualify the individual prosecuting attorney from a case. The bill also allows the court to disqualify the prosecuting attorney's office if there is sufficient evidence that other employees of the prosecuting attorney's office knowingly participated in or sanctioned the intentional withholding of the relevant exculpatory materials or information and that withholding was part of a pattern and practice of violations. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified 7/29/15) California Attorneys for Criminal Justice (source) California Public Defenders Association Legal Services for Prisoners with Children OPPOSITION: (Verified 7/29/15) Association for Los Angeles Deputy Sheriffs Association of Deputy District Attorneys California Association of Code Enforcement Officers California College and University Police Chiefs Association California Narcotic Officers Association California Police Chiefs Association California State Sheriffs' Association Judicial Council Los Angeles County District Attorney's Office Los Angeles Police Protective League Office of the San Diego County District Attorney Riverside Sheriffs Association ASSEMBLY FLOOR: 41-36, 6/1/15 AYES: Alejo, Bloom, Bonta, Brown, Burke, Campos, Chau, Chiu, Chu, Dababneh, Daly, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty, Mullin, Nazarian, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, AB 1328 Page 7 Atkins NOES: Achadjian, Travis Allen, Baker, Bigelow, Bonilla, Brough, Chang, Chávez, Cooley, Dahle, Dodd, Beth Gaines, Gallagher, Gatto, Gray, Grove, Hadley, Harper, Irwin, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Medina, Melendez, Obernolte, O'Donnell, Patterson, Steinorth, Wagner, Waldron, Wilk, Wood NO VOTE RECORDED: Calderon, Cooper, Olsen Prepared by:Mary Kennedy / PUB. S. / 8/13/15 13:38:26 **** END ****