AB 1328: Criminal procedure: withholding of evidence.

Existing law requires the prosecuting attorney to disclose to the defendant or his or her attorney certain materials and information, including statements of all defendants and any exculpatory evidence, as specified. Existing law authorizes a court to grant a motion to disqualify a district attorney from performing an authorized duty, subject to specified procedural requirements.

This bill would authorize a court, upon receiving information that the prosecuting attorney has deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, to make a finding, supported by clear and convincing evidence, that a violation occurred. If the court makes such a finding, the bill would require the court to inform the State Bar of California of that 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 conclusion of trial, seriously limited the ability of a defendant to present a defense. The bill would authorize a court to disqualify an individual prosecuting attorney from a case if the court finds that a violation occurred in bad faith. The bill would also authorize, upon a determination by a court to disqualify an individual prosecuting attorney from a case, the defendant or his or her counsel to file and serve a notice of a motion to disqualify the prosecuting attorneys office if there is sufficient evidence that other employees of the prosecuting attorneys office knowingly and in bad faith participated in or sanctioned the intentional withholding of the relevant or material exculpatory evidence or information and that withholding is part of a pattern and practice of violations. The bill would specify that its provisions do not limit the authority or discretion of, or any requirement placed upon, the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, requirements, remedies, or actions.