Existing law makes it a misdemeanor for a person, or a felony for a peace officer, to knowingly, willfully, intentionally, and wrongfully alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, or video recording, with the specific intent that the action will result in a person being charged with a crime.

This bill would make it a felony punishable by imprisonment for 16 months or 2 or 3 years for a prosecuting attorney to intentionally and in bad faith alter, modify, or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor for a person, or a felony for a peace officer, to knowingly, willfully, intentionally, and wrongfully alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, or video recording, with the specific intent that the action will result in a person being charged with a crime.

This bill would make it a felony punishable by imprisonment for 16 months or 2 or 3 years for a prosecuting attorney to intentionally and in bad faith alter, modify, or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor for a person, or a felony for a peace officer, to knowingly, willfully, intentionally, and wrongfully alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, or video recording, with the specific intent that the action will result in a person being charged with a crime.

This bill would make it a felony punishable by imprisonment for 16 months, months or 2 or 3 years for a prosecuting attorney to knowingly, willfully, intentionally, and wrongfully intentionally and in bad faith alter, modify, or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information that is required to be disclosed information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor for a person, or a felony for a peace officer, to knowingly, willfully, intentionally, and wrongfully alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, or video recording, with the specific intent that the action will result in a person being charged with a crime.

This bill would make it a felony punishable by imprisonment for 2, 3, or 5 16 months, or 2 or 3 years for a prosecuting attorney to knowingly, willfully, intentionally, and wrongfully alter, modify, or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information that is required to be disclosed with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, amended by Proposition 21, an initiative measure enacted by voters at the March 7, 2000, statewide primary election, makes a person who maliciously commits specified destructive acts with respect to anothers property guilty of vandalism. The initiative measure reduced from $50,000 to $400 or more, the amount of damage caused by the vandalism that would result in punishment by imprisonment in state prison or a county jail for a term not exceeding one year, by a fine of not more than $10,000, or by both that fine and imprisonment, as specified. Existing law states if the amount of damage is less than $400, vandalism is punishable by imprisonment in a county jail not exceeding one year, by a fine of not more than $1,000, or by both that fine and imprisonment.

This bill would increase the damages threshold for determining the level of punishment for vandalism from $400 to $950.

Proposition 21 prohibits the Legislature from amending that act except by a roll call vote, two-thirds of the membership of each house concurring.

Because the bill would increase the threshold of vandalism damages that would result in specified punishment and thereby amend a provision of that initiative measure, it would therefore require a ²/₃ vote.

 THIRD READING  

Bill No: AB 1909

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 6/28/16

AYES: Hancock, Glazer, Leno, Liu, Monning, Stone

NOES: Anderson

SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza, Nielsen

NO VOTE RECORDED: Bates

ASSEMBLY FLOOR: 60-18, 6/2/16 - See last page for vote

SUBJECT:

SOURCE: California Attorneys for Criminal Justice

DIGEST: This bill expands existing provisions of law that make it a felony for a peace officer to willfully and intentionally tamper with evidence to include a prosecutor who intentionally and in bad faith withholds exculpatory evidence.

ANALYSIS:

Existing law:

1. Makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. (Penal Code § 141 (a).)
2. Makes it a felony for a peace officer to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. (Penal Code §141 (b).)
3. 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).)
4. 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, subd. (b).)
5. 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).)
6. 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 a prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a jail felony punishable by 16 months, two or three years.

Background

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 Section 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 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 16 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.)

According to the sponsor, the California Attorneys for Criminal Justice:

This bill would create criminal penalties for bad-acting prosecuting attorneys that knowingly and intentionally withhold exculpatory evidence from the defense in violation of their ethical, state and constitutional duties under Brady v. Maryland, 373 U.S. 83 (1963).

Firstly, we would like to acknowledge that the large majority of prosecuting attorneys do their jobs well, with integrity and dignity. These prosecutors seek to find justice above all other matters. However, the small group of bad-actors spoil the reputation of prosecutors.

CACJ has made it an organizational priority to highlight and address issues of prosecutorial misconduct. In 2014, prominent 9th Circuit Justice, Alex Kozinski, stated that prosecutorial misconduct is an epidemic in our criminal justice system. Nationwide, we’ve seen stories of innocent persons being sent to prison for decades because of a bad-acting prosecutor placing their self-interest and conviction rate ahead of seeking justice.

This epidemic has created a much larger growing lack of confidence in our criminal justice system. According to the National Registry of Exonerations, a project of the University of Michigan Law School, there has been 1.700 exonerations nationwide since 1989. Forty five (45) percent of the exonerations found were as a result of official misconduct, which is AB 1909 Page 6 defined as police, prosecutors, or other governmental officials significantly abusing their authority or the judicial process in a manner that contributed to the exoneree’s conviction. California has also experienced a number of Brady violations.

In a report by the Veritas Initiative from the Santa Clara School of Law, a review on 10 years of prosecutorial misconduct occurring in California showed that California court repeatedly failed to take meaningful action when the court found that the prosecutorial misconduct was harmful.

Current law, as passed last year in AB 1328, requires a court to notify the state bar of such a knowing and intentional Brady violation. However, besides this option, there are no criminal consequences for such intentional acts. When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentence, and incarceration for a long time. These bad-acting prosecutors rarely, if ever, face any actually consequences for their actions.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• State prisons: Likely minor, if any, increase in state costs (General Fund) for new commitments to state prison. This bill is unlikely to have an impact on the state prison population, as it is projected that the incidence of a prosecuting attorney with a qualifying serious or violent felony conviction that would prompt a state prison sentence would be rare. To the extent one commitment to state prison should result from this bill, annual costs of $29,000 (General Fund) could be incurred.
• Local jails: Potential minor increase in non-reimbursable local enforcement and incarceration costs (Local Funds), offset to a degree by fine revenue to the extent a prosecuting attorney is charged and convicted of this jail felony. Department of Justice statistics indicate no felony convictions and only five misdemeanor convictions over the past three years for the existing offense of intentionally altering or concealing evidence.

SUPPORT: (Verified 8/12/16)

California Attorneys for Criminal Justice (source)

Alameda County Public Defender

California Public Defenders Association

Communities United Restorative Youth Justice

Santa Ana Boys and Men of Color

OPPOSITION: (Verified 8/12/16)

None received

ASSEMBLY FLOOR: 60-18, 6/2/16

AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon

NOES: Travis Allen, Bigelow, Brough, Chávez, Dahle, Grove, Harper, Jones, Kim, Mathis, Mayes, Melendez, Obernolte, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Beth Gaines, Linder

Prepared by:

8/15/16 20:17:22

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1909 (Lopez) - Falsifying evidence

This bill does not meet the criteria for referral to the Suspense File.

Bill Summary:

AB 1909 would provide that a prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any evidence, knowing that it is relevant and material to the outcome of the case is guilty of a felony, as specified.

Fiscal Impact:

• State prisons: Likely minor, if any, increase in state costs (General Fund) for new commitments to state prison. This bill is unlikely to have an impact on the state prison population, as it is projected that the incidence of a prosecuting attorney with a qualifying serious or violent felony conviction that would prompt a state prison sentence would be rare. To the extent one commitment to state prison should result from this measure, annual costs of $29,000 (General Fund) could be incurred.
• Local jails: Potential minor increase in non-reimbursable local enforcement and incarceration costs (Local Funds), offset to a degree by fine revenue to the extent a prosecuting attorney is charged and convicted of this jail felony. DOJ statistics indicate no felony convictions and only five misdemeanor convictions over the past three years for the existing offense of intentionally altering or concealing evidence.

Background:

Existing law makes it a misdemeanor for a person, or a felony for a peace officer, to knowingly, willfully, intentionally, and wrongfully alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, or video recording, with the specific intent that the action will result in a person being charged with a crime. Existing law provides that a felony offense is punishable by two, three, or five years in state prison. (Penal Code § 141(b).)

Under existing law, upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, a court may make a finding supported by clear and convincing evidence that a violation occurred. The court is required to inform the State Bar of that violation, and may hold a hearing to consider whether a violation in fact occurred, 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.

If a court finds that a violation occurred in bad faith, the court may disqualify an individual prosecuting attorney from a case. Upon a determination by a court to disqualify an individual prosecuting attorney, the defendant or his or her counsel may file and serve a notice of a motion to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s 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. (Penal Code § 1424.5.)

Under existing law, a court is required to notify the State Bar of any of the following:

• A final order of contempt imposed against an attorney that may involve grounds warranting discipline under this chapter. The court entering the final order shall transmit to the State Bar a copy of the relevant minutes, final order, and transcript, if one exists.
• Whenever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.
• The imposition of any judicial sanctions against an attorney, except sanctions for failure to make discovery or monetary sanctions of less than $1,000.
• The imposition of any civil penalty upon an attorney pursuant to Family Code § 8620.
• A violation described in Penal Code § 1424.5 described above.

The State Bar is required to investigate any matter reported as to the appropriateness of initiating disciplinary action against the attorney. (Business and Professions Code § 6086.7.)

In the study, Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 (K. Ridolfi, Veritas Initiative, Santa Clara University School of Law, 2010), which provides a quantitative and actionable study on the extent of prosecutorial misconduct in California, how the justice system identifies and addresses it, and its cost and consequences, including the wrongful conviction of innocent people, the Executive Summary notes the following:

The Misconduct Study shows that those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.

Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor.

The failure of judges, prosecutors and the California State Bar to live up to their responsibilities to report, monitor and discipline prosecutorial misconduct fosters misconduct, undercuts public trust and casts a cloud over those prosecutors who do their jobs properly. The problem is critical.

Proposed Law:

This bill would provide that a prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to Penal Code § 1170(h) for 16 months, or two or three years.

Prior Legislation:

AB 256 (Jones-Sawyer) Chapter 463/2015 expands the prohibition against knowingly, willfully, and intentionally tampering with evidence to include video recordings owned by another.

AB 1328 (Weber) Chapter 467/2015 provides that if a court determines that a prosecuting attorney has deliberately and intentionally withheld relevant exculpatory material or information in violation of the law, the court shall notify the State Bar of California 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 prior to the conclusion of trial seriously limited the ability to present a defense. This bill authorizes a court, upon its own motion, to disqualify a prosecuting attorney from a case, if the court determines that he or she deliberately and intentionally withheld relevant exculpatory material or information in violation of the law and that the prosecuting attorney acted in bad faith.

Staff Comments:

By making it a felony for a prosecuting attorney to intentionally modify or withhold evidence, as specified, this bill could result in felony rather than misdemeanor convictions, resulting in imprisonment in county jail for 16 months, two years, or three years. It is estimated that the occurrences in which a prosecuting attorney would additionally have a current or prior felony conviction for a serious or violent felony would be rare. As a result, minor, if any, state incarceration costs are estimated to result from this measure.

The number of future felony convictions is unknown but anticipated to be minor. Statistics from the Department of Justice indicate no felony convictions and only five misdemeanor convictions over the past three years for the existing offense.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1909 Hearing Date: June 28, 2016

Subject: Falsifying Evidence

HISTORY

Source: California Attorneys for Criminal Justice

Prior Legislation: AB 256 (Jones-Sawyer) Chapter 463, Stats. 2015

AB 1328 (Weber) Chapter 467, Stats. 2015

Support: Alameda County Public Defender; California Public Defenders Association; Communities United Restorative Youth Justice; Santa Ana Boys and Men of Color

Opposition: None known

Assembly Floor Vote: 60 - 18

PURPOSE

The purpose of this bill is to expand existing provisions of law that make it a felony for a peace officer to willfully and intentionally tamper with evidence to include a prosecutor who intentionally and in bad faith withholds exculpatory evidence.

Existing law makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. (Penal Code § 141 (a).)

Existing law makes it a felony for a peace officer to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. (Penal Code §141 (b).)

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: a) The names and addresses of persons the prosecutor intends to call as witnesses at trial; b) Statements of all defendants; Makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. (Penal Code §141 (a).)

Exiting law 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).)

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, subd. (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 § 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 a prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a jail felony punishable by 16 months, 2 or 3 years.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

Current law does not adequately provide a deterrent for bad-acting prosecutors from withholding exculpatory evidence from the defense. Current law requires a court to notify the state bar of such a knowing and intentional Brady violation. However, besides this option, there are no criminal consequences for such intentional acts. When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentence, and incarceration for a long time. These bad-acting prosecutors rarely, if ever, face any actually consequences for their actions. AB 1909 would provide an actual consequence for such bad actors in hopes of deterring such unscrupulous actions.

One of the most comprehensive studies on the issue of prosecutorial misconduct in California comes from the Veritas Initiative out of Santa Clara University. See Preventable Error: A Report on Prosecutorial Misconduct in California.

Last year, Judge Alex Kozinski highlighted the issue making national headlines coming out of Riverside County. Judge Kozinski famously stated in 2014 that prosecutorial misconduct is an epidemic in our country.

2. Brady and a Fair Trial

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 criminal case withholds material evidence from the accused person that is favorable to the accused, this violates the Due Process Clause of the 14^th 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 Section 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 Section 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 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 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. CALCRIM 306 Jury Instruction

In addition to sanctions, untimely disclosure of required evidence is addressed in the CALCRIM 306 jury instruction, which reads in relevant part:

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: _________________ <describe evidence that was not disclosed> [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. Jail Felony for Intentionally and in Bad Faith Altering, Modifying or Withholding Physical Evidence

This bill would make it a jail felony for a prosecuting attorney to intentionally and in bad faith alter, modify or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case with the specific intent that the material or information will be concealed or destroyed or fraudulently represented as the original evidence upon a trial, proceeding or inquiry.

6. Support

According to the California Attorneys for Criminal Justice:

This bill would create criminal penalties for bad-acting prosecuting attorneys that knowingly and intentionally withhold exculpatory evidence from the defense in violation of their ethical, state and constitutional duties under Brady v. Maryland, 373 U.S. 83 (1963).

Firstly, we would like to acknowledge that the large majority of prosecuting attorneys do their jobs well, with integrity and dignity. These prosecutors seek to find justice above all other matters. However, the small group of bad-actors spoil the reputation of prosecutors.

CACJ has made it an organizational priority to highlight and address issues of prosecutorial misconduct. In 2014, prominent 9th Circuit Justice, Alex Kozinski, stated that prosecutorial misconduct is an epidemic in our criminal justice system. Nationwide, we’ve seen stories of innocent persons being sent to prison for decades because of a bad-acting prosecutor placing their self-interest and conviction rate ahead of seeking justice.

This epidemic has created a much larger growing lack of confidence in our criminal justice system. According to the National Registry of Exonerations, a project of the University of Michigan Law School, there has been 1.700 exonerations nationwide since 1989. Forty five (45) percent of the exonerations found were as a result of official misconduct, which is AB 1909 Page 6 defined as police, prosecutors, or other governmental officials significantly abusing their authority or the judicial process in a manner that contributed to the exoneree’s conviction. California has also experienced a number of Brady violations.

In a report by the Veritas Initiative from the Santa Clara School of Law, a review on 10 years of prosecutorial misconduct occurring in California showed that California court repeatedly failed to take meaningful action when the court found that the prosecutorial misconduct was harmful.

Current law, as passed last year in AB 1328, requires a court to notify the state bar of such a knowing and intentional Brady violation. However, besides this option, there are no criminal consequences for such intentional acts. When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentence, and incarceration for a long time. These bad-acting prosecutors rarely, if ever, face any actually consequences for their actions.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1909

Author:(Lopez)

As Amended Ver:May 27, 2016

Majority vote

SUMMARY: Expands existing provisions of law that make it a felony for a peace officer to willfully and intentionally tamper with evidence to include a prosecutor who willfully and intentionally withholds exculpatory evidence. Specifically, this bill:

1. Provides that a prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry is guilty of a felony.
2. Makes the felony offense of a prosecuting attorney who willfully and intentionally withholds exculpatory evidence punishable by 16 months, 2, or 3 years in a county jail.

EXISTING LAW:

1. Makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry.
2. Makes it a felony for a peace officer to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry.
3. 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:
   1. The names and addresses of persons the prosecutor intends to call as witnesses at trial;
   2. Statements of all defendants;
   3. All relevant real evidence seized or obtained as a part of the investigation of the offenses charged;
   4. The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial;
   5. Any exculpatory evidence; and
   6. 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.
4. Requires the defendant and his or her attorney to disclose to the prosecuting attorney:
   1. 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,
   2. Any real evidence which the defendant intends to offer in evidence at the trial.
5. 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.
6. 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.
7. 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:

According to the Assembly Appropriations Committee, likely minor fiscal impact to the Department of Corrections and Rehabilitation (CDCR). If one prosecutor were convicted per year for tampering with evidence, who had a prior or current qualifying felony that required state imprisonment, the annual cost to CDCR would be approximately $29,000 the first year and $58,000 the second year, $87,000 the third year.

Minor, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the misdemeanor results in incarceration.

COMMENTS:

According to the author, "Prosecutorial misconduct is an epidemic in our nation. Bad-acting prosecutors tarnish the image of otherwise hard-working, justice-seeking, and law-abiding prosecutors. However, this small group of bad-acting prosecutors have a destructive impact on our criminal justice system. Not only do these bad-acting prosecutors put their conviction rate ahead of seeking justice, these bad actors often send innocent people to prison for a very long time. These bad actions forces the public to lose confidence in the system while costing the systems millions of dollars in costly appeals.

"AB 1909 would provide much needed oversight, accountability, and criminal consequences for these bad actors. Currently, there are no criminal consequences for prosecutors who violate the rules and send innocent people to prison. The sanctions currently in place rarely, if ever, are used against these bad actors. These bad-acting prosecutors must be held accountable for their life-altering misdeeds. This measure would provide a much needed deterrent effect and hopefully lessen the number of wrongfully convicted."

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0003070

ASSEMBLY THIRD READING

ATR Bill Id:AB 1909

Author:(Lopez)

As Amended Ver:April 19, 2016

Majority vote

SUMMARY: Expands existing provisions of law that make it a felony for a peace officer to willfully and intentionally tamper with evidence to include a prosecutor who willfully and intentionally withholds exculpatory evidence. Specifically, this bill:

1. Provides that a prosecuting attorney who knowingly, willfully, and intentionally wrongfully alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information that is required to be disclosed, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry is guilty of a felony.
2. Makes the felony offense of a prosecuting attorney who willfully and intentionally withholds exculpatory evidence punishable by 16 months, 2, or 3 years in a county jail.

EXISTING LAW:

1. Makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry.
2. Makes it a felony for a peace officer to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry.
3. 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:
   1. The names and addresses of persons the prosecutor intends to call as witnesses at trial;
   2. Statements of all defendants;
   3. All relevant real evidence seized or obtained as a part of the investigation of the offenses charged;
   4. The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial;
   5. Any exculpatory evidence; and
   6. 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.
4. Requires the defendant and his or her attorney to disclose to the prosecuting attorney:
   1. 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,
   2. Any real evidence which the defendant intends to offer in evidence at the trial.
5. 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.
6. 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.
7. 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:

According to the Assembly Appropriations Committee, likely minor fiscal impact to the Department of Corrections and Rehabilitation (CDCR). If one prosecutor were convicted per year for tampering with evidence, who had a prior or current qualifying felony that required state imprisonment, the annual cost to CDCR would be approximately $29,000 the first year and $58,000 the second year, $87,000 the third year.

Minor, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the misdemeanor results in incarceration.

COMMENTS:

According to the author, "Prosecutorial misconduct is an epidemic in our nation. Bad-acting prosecutors tarnish the image of otherwise hard-working, justice-seeking, and law-abiding prosecutors. However, this small group of bad-acting prosecutors have a destructive impact on our criminal justice system. Not only do these bad-acting prosecutors put their conviction rate ahead of seeking justice, these bad actors often send innocent people to prison for a very long time. These bad actions forces the public to lose confidence in the system while costing the systems millions of dollars in costly appeals.

"AB 1909 would provide much needed oversight, accountability, and criminal consequences for these bad actors. Currently, there are no criminal consequences for prosecutors who violates the rules and send innocent people to prison. The sanctions currently in place rarely, if ever, are used against these bad actors. These bad-acting prosecutors must be held accountable for their life-altering misdeeds. This measure would provide a much needed deterrent effect and hopefully lessen the number of wrongfully convicted.”

Analysis Prepared by: Gregory Pagan/ PUB. S. / (916) 319-3744 FN: 0002882

Date of Hearing: May 4, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1909

Author:(Lopez) – As Amended Ver:April 19, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill expands existing provisions of law which make it a felony for a peace officer to willfully and intentionally tamper with evidence, to include a prosecutor who willfully and intentionally withholds exculpatory evidence, and makes the felony offense punishable by 16 months, 2, or 3 years in a county jail.

FISCAL EFFECT:

Likely minor fiscal impact to the Department of Corrections and Rehabilitation (CDCR). If one prosecutor were convicted per year for tampering with evidence, who had a prior or current qualifying felony that required state imprisonment, the annual cost to CDCR would be approximately $29,000 the first year and $58,000 the second year, $87,000 the third year.

Minor, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the misdemeanor results in incarceration.

COMMENTS:

1. Background. Current law makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry.

Current law makes it a felony for a peace officer to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, video recording, or other exculpatory material, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the evidence will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry.

1. Purpose. According to the author, bad-acting prosecutors tarnish the image of otherwise hard-working, justice-seeking, and law-abiding prosecutors, and they have a destructive impact on our criminal justice system. Their bad actions often send innocent people to prison for a very long time. These actions force the public to lose confidence in the system while costing the systems millions of dollars in costly appeals.

The author further states, “AB 1909 would provide much needed oversight, accountability, and criminal consequences for these bad actors. Currently, there are no criminal consequences for prosecutors who violate the rules and send innocent people to prison. The sanctions currently in place rarely, if ever, are used against these bad actors. These bad-acting prosecutors must be held accountable for their life-altering misdeeds. This measure would provide a much needed deterrent effect and hopefully lessen the number of wrongfully convicted.”

According to a Yale Law Journal article, "[a] prosecutor’s violation of the obligation to 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. … a recent empirical study of all 5,760 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 post-conviction stage.”

1. Support: According to the California Attorneys for Criminal Justice, "Current law, as passed last year in AB 1328, requires a court to notify the state bar of such a knowing and intentional Brady violation. However, besides this option, there are no criminal consequences for such intentional acts. When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentence, and incarcerated for a long time. These bad-acting prosecutors rarely, if ever, face any actually consequences for their actions.”
2. Opposition. According to the California District Attorneys Association, “AB 1909 would make it a felony for a prosecutor to “knowingly, willfully, intentionally, and wrongfully” tamper with or withhold physical evidence, along with “relevant exculpatory material or information”. In the context of criminal discovery, courts have held that “knowing” violations may include negligent or inadvertent conduct. Therefore, this bill may criminalize prosecutors who unintentionally turn over discovery once trial has commenced.

“Further, just last year, this Legislature passed AB 1328 (Chapter 467, Statutes of 2015), which requires a court to inform the State Bar when a prosecutor deliberately and intentionally withholds relevant or material exculpatory evidence or information in violation of law, and also allows for the disqualification of an individual prosecutor, or even an entire office, when this type of misconduct is found to exist.

“Now, before the ink is even dry on the Governor’s signature of that bill, comes an outrageous attempt to criminalize prosecutors for conduct that falls well short of criminal.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1909

Author:(Lopez) – As Amended Ver:March 28, 2016

As Proposed to be Amended in Committee

SUMMARY: Expands existing provisions of law that make it a felony for a peace officer to willfully and intentionally tamper with evidence to include a prosecutor who willfully and intentionally withholds exculpatory evidence. Specifically, this bill:

1. Provides that a prosecuting attorney who knowingly, willfully, and intentionally wrongfully alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information that is required to be disclosed, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry is guilty of a felony.
   
   
2. Makes the felony offense of a prosecuting attorney who willfully and intentionally withholds exculpatory evidence punishable by 16 months, 2, or 3 years in a county jail.

EXISTING LAW:

1. Makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. (Pen. Code, § 141, subd. (a).)
   
2. Makes it a felony for a peace officer to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter be will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. (Pen. Code, § 141, subd. (b).)
   
3. 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:
   
   1. The names and addresses of persons the prosecutor intends to call as witnesses at trial;
      
   2. Statements of all defendants;
      
   3. All relevant real evidence seized or obtained as a part of the investigation of the offenses charged;
      
   4. The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial;
      
   5. Any exculpatory evidence; and
      
   6. 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. (Pen. Code, § 1054.1.)
      
4. Requires the defendant and his or her attorney to disclose to the prosecuting attorney:
   
   1. 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,
      
   2. Any real evidence which the defendant intends to offer in evidence at the trial. (Pen. Code, § 1054.3 subd. (a).)
      
5. 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. (Pen. Code, § 1054.5, subd. (b).)
   
6. 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. (Pen. Code, § 1054.5, subd. (c).)
   
7. 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. (Pen. Code, § 1054.7.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Prosecutorial misconduct is an epidemic in our nation. Bad-acting prosecutors tarnish the image of otherwise hard-working, justice-seeking, and law-abiding prosecutors. However, this small group of bad-acting prosecutors have a destructive impact on our criminal justice system. Not only do these bad-acting prosecutors put their conviction rate ahead of seeking justice, these bad actors often send innocent people to prison for a very long time. These bad actions forces the public to lose confidence in the system while costing the systems millions of dollars in costly appeals.

AB 1909 would provide much needed oversight, accountability, and criminal consequences for these bad actors. Currently, there are no criminal consequences for prosecutors who violates the rules and send innocent people to prison. The sanctions currently in place rarely, if ever, are used against these bad actors. These bad-acting prosecutors must be held accountable for their life-altering misdeeds. This measure would provide a much needed deterrent effect and hopefully lessen the number of wrongfully convicted.

1. 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 (1963) 373 U.S. 83, the Supreme Court held that a defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. 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. (Pen. Code, § 1054.5, subd.(b).)
   
2. Current Remedies: 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. (Pen. Code, § 1054. 3, subd.(a).) If either party intentionally fails to disclose the required evidence, the court may make any order necessary to enforce the disclosure requirements, 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. The court may also advise the jury of any failure or refusal to disclose and of any untimely disclosure. (Penal Code Section 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.
   
   According to a Yale Law Journal article, "[a] prosecutor’s violation of the obligation to 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 post-conviction stage. And 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 "when suppressed favorable evidence comes to light during or shortly before a trial, the trial court should consider instructing the jury on Brady law and 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 post-conviction 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.)
   
3. CALCRIM 306 Jury Instruction: In addition to sanctions, untimely disclosure of required evidence is addressed in the CALCRIM 306 jury instruction, which reads in relevant part:
   
   "Both the People and the defense must disclose to the other their evidence to the other before trial, within the rime limits set by law. Failure to follow the 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 [description of the evidence that was not disclosed] within the legal time period."
   
   "In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late discovery."
   
   Is this instruction sufficient to remedy possible prejudice as a result of late disclosure of required evidence rather than criminalizing this conduct?
   
4. Argument in Support: According to the California Attorneys for Criminal Justice, "" This bill would create criminal penalties for bad-acting prosecuting attorneys that knowingly and intentionally withhold exculpatory evidence from the defense in violation of their ethical, state and constitutional duties under Brady v. Maryland, 373 U.S. 83 (1963).

“Firstly, we would like to acknowledge that the large majority of prosecuting attorneys do their jobs well, with integrity and dignity. These prosecutors seek to find justice above all other matters. However, the small group of bad-actors spoil the reputation of prosecutors.

“CACJ has made it an organizational priority to highlight and address issues of prosecutorial misconduct. In 2014, prominent 9th Circuit Justice, Alex Kozinski, stated that prosecutorial misconduct is an epidemic in our criminal justice system. Nationwide, we’ve seen stories of innocent persons being sent to prison for decades because of a bad-acting prosecutor placing their self-interest and conviction rate ahead of seeking justice.

“This epidemic has created a much larger growing lack of confidence in our criminal justice system. According to the National Registry of Exonerations, a project of the University of Michigan Law School, there has been 1.700 exonerations nationwide since 1989. Forty five (45) percent of the exonerations found were as a result of official misconduct, which is defined as police, prosecutors, or other governmental officials significantly abusing their authority or the judicial process in a manner that contributed to the exoneree’s conviction. California has also experienced a number of Brady violation.

“In a report by the Veritas Initiative from the Santa Clara School of Law, a review on 10 years of prosecutorial misconduct occurring in California showed that California court repeatedly failed to take meaningful action when the court found that the prosecutorial misconduct was harmful.

“Current law, as passed last year in AB 1328, requires a court to notify the state bar of such a knowing and intentional Brady violation. However, besides this option, there are no criminal consequences for such intentional acts. When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentence, and incarceration for a long time. These bad-acting prosecutors rarely, if ever, face any actually consequences for their actions.”

1. Argument in Opposition: According to the California District Attorneys Association, "This bill would create a new felony, applicable only to prosecuting attorneys who fail to meet their statutory and constitutional discovery obligations.
   
   “Proposition 115 (1990) established Penal Code section 1054 and codified the principle of reciprocal discovery, under which both the prosecution and defense are obligated to turn over specified materials. When either side fails to comply with its statutory discovery obligations, PC 1054.5 provides the court with authority to grant a variety of remedies, depending on the circumstances. The court may order immediate disclosure of the material, initiate contempt proceedings, delay or prohibit testimony, grant a continuance, “or any other lawful order.” Additionally, individual attorneys also face State Bar sanctions, including potential disbarment, for unethical conduct, and, in cases involving the intentional destruction or secreting of evidence, criminal sanctions under PC 141(a).

“Further, just last year, this Legislature passed AB 1328 (Chapter 467, Statutes of 2015), which requires a court to inform the State Bar when a prosecutor deliberately and intentionally withholds relevant or material exculpatory evidence or information in violation of law, and also allows for the disqualification of an individual prosecutor, or even an entire office, when this type of misconduct is found to exist.

“Now, before the ink is even dry on the Governor’s signature of that bill, comes an outrageous attempt to criminalize prosecutors for conduct that falls well short of criminal.

“AB 1909 would make it a felony for a prosecutor to “knowingly, willfully, intentionally, and wrongfully” tamper with or withhold physical evidence, along with “relevant exculpatory material or information”. In the context of criminal discovery, courts have held that “knowing” violations may include negligent or inadvertent conduct. Therefore, this bill may criminalize prosecutors who unintentionally turn over discovery once trial has commenced.

“As previously mentioned, AB 1909 creates a new felony applying only to the prosecution, which we believe violates Proposition 115 (1990). Since the language only makes it a felony for the prosecutor to engage in this type of conduct, while the defense attorney would only be subject to the misdemeanor in existing PC 141(a), adopting the measure would upset the constitutionally mandated balance of reciprocity and duality in both the requirements and penalties that are the cornerstones of criminal discovery in California.

“To the extent that discovery violations are committed by either the prosecution or the defense in a criminal matter, existing law already provides for a variety of remedies, including, in egregious cases, prosecution under PC 141(a). We believe that current sanctions are sufficient to police this type of misconduct.”

1. Prior Legislation:
   
   1. AB 256 (Jones-Sawyer), Chapter 463, Statutes of 2015, expanded the prohibition against knowingly, willfully, and intentionally tampering with evidence to include digital images and video recordings owned by another.
      
   2. AB 1328 (Weber), Chapter 467, Statutes of 2015, required the court to notify the State Bar if a prosecuting attorney has intentionally failed to disclose relevant exculpatory evidence, and authorized the court to disqualify the prosecuting attorney from the case, and the prosecuting attorney's office if other employees in the office knowingly participated in, or sanctioned the withholding of the exculpatory evidence.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Attorneys for Criminal Justice
California Public Defenders Association

Opposition

California District Attorneys Association

Analysis Prepared by:

Gregory Pagan / PUB. S. / (916) 319-3744