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Launching Discovery

By Robert M. Martinez
This article appears on Page 7

      Reciprocal discovery in criminal cases has been the law in California for over 17 years since its adoption as part of Proposition 115 on June 6, 1990. The duty of reciprocal discovery presents many issues in criminal cases.
      The objective of this article and self-study test is to provide attorneys and bench officers with an overview of Proposition 115 discovery. Readers will learn the disclosure obligations of the prosecution and defense, the circumstances that may justify the denial, restriction or deferral of otherwise discoverable information, the available sanctions for non-compliance and the circumstances that restrict the court's authority to impose certain remedies or sanctions.
Applicable Proceedings

      Shortly after the adoption of Proposition 115, and despite the proposition's express provisions preserving work product and state and federal statutory privileges (see Pen. Code Section 1054.6), the new discovery law was challenged as an unconstitutional infringement on a defendant's privilege against self-incrimination, a denial of due process, an interference with a defendant's right to the effective assistance of counsel and an impingement on attorney work product. Each of these challenges has been laid to rest in Izazaga v. Superior Court, 54 Cal.3d 356 (1991).
      The reciprocal discovery statute makes no distinction between felonies and misdemeanors and applies to both classes of crimes. Hobbs v. Municipal Court, 233 Cal.App.3d 670 (1991). The disclosure provisions not only apply to the guilt phase of a trial but also to the penalty phase of a capital case, People v. Superior Court (Mitchell), 5 Cal.4th 1229 (1993), and, arguably, the sanity phase of a trial as well. People v. Superior Court (Strum), 9 Cal.App.4th 172 (1992).
      Although the statute does not expressly address juvenile delinquency adjudications, delinquency courts have discretion to order reciprocal discovery. In re Thomas F., 113 Cal.App.4th 1249 (2003). Since probation violation hearings are not criminal trials, the defense is under no obligation to provide discovery information to the prosecution. Jones v. Superior Court, 115 Cal.App.4th 48, 50-51 (2004).
Required Disclosures

      Penal Code Section 1054.1 requires the prosecution to disclose the names and addresses of persons it intends to call as witnesses at trial, the statements of all defendants, all real evidence seized or obtained as part of the investigation, any felony conviction of a material witness whose credibility is likely to be critical to the outcome of the trial, any exculpatory evidence and all reports of statements of lay and expert witnesses including comparisons, scientific test and examinations, provided that such information or materials are in the possession of the prosecution or if the prosecuting attorney knows it to be in the possession of the investigating agencies.
      The prosecution's duty to disclose, however, is not linked to his or her personal knowledge. The prosecution must disclose evidence that is actually or constructively in its possession or accessible to it. People v. Little, 59 Cal.App.4th 426 (1997). The requirement that the prosecution disclose the names and addresses of persons the prosecutor intends to call as witnesses at trial includes both witnesses in the prosecution's case-in-chief and any rebuttal witnesses that the prosecution intends to call. People v. Gonzalez, 38 Cal.4th 932, 957 (2006).
      The defense is similarly required to disclose the names and addresses of all its witnesses, other than the defendant, along with any reports of statement of such witnesses as well as reports of experts who conduct tests, examinations or experiments. Additionally, the defense must disclose any real evidence that it intends to offer at trial. Pen. Code Section 1054.3.
      Shortly after the statute came into effect, some criminal law practitioners attempted to circumvent the act's disclosure requirements by taking oral statements from witnesses but not reducing them to writing. The reasoning was that without a written report to turn over, there was nothing required under the statute to disclose. In Rowland v. Superior Court, 124 Cal.App.4th 154, 156 (2004), the appellate court held that the disclosure requirements of Penal Code Sections 1054.1 and 1054.3 apply to "relevant statements of witnesses, other than a defendant, communicated orally to an attorney or to any third parties, such as an investigator."
      People who the prosecution or the defense intend to call as witnesses at trial in the context of Sections 1054.1 and 1054.3 include, according to the court in Izazaga, "all witnesses it reasonably anticipates is likely to call," an objective standard rather than a subjective one. The disclosure obligation created by those sections is triggered only by the party's intent to call the witness.
      The language of Section 1054.3 contains nothing that would authorize the discovery of statements from a witness who the accused does not intend to call at trial. Hubbard v. Superior Court, 66 Cal.App.4th 1163, 1170 (1997). While the same would appear to be true for the prosecution, Section 1054.1(e) expressly obligates the prosecution to disclose any "exculpatory evidence," which has been defined as "any evidence that tends to demonstrate that the defendant is free from guilt or innocent of the charged crime." People v. Santos et al., 30 Cal.App.4th 169, 178 (1994). Moreover, under federal due process standards, the prosecution's obligation to disclose exculpatory evidence is more broadly defined, as "any evidence that helps the defense, including impeachment information, or any evidence that hurts the prosecution." Brady v. Maryland, 373 U.S. 83 (1963).
      A court may deny, restrict or defer the disclosure of discoverable material upon a reported in camera showing of "good cause." Good cause under the statute is limited to threats of possible danger to the safety of victims or witnesses, possible loss or destruction of evidence or possible compromise of other investigations by law enforcement. Pen. Code Section 1054.7.
Enforcement and Sanctions

      Before a party may seek court enforcement of any of the disclosure required by the code, the party seeking discovery must make an informal request of opposing party. If after 15 days following the request, the party has not received the requested materials or information, the requesting party may seek a court order to enforce the disclosure of discoverable information. Pen. Code Section 1054.5(b).
      The party must show not only that the opposing party has not complied with either Sections 1054.1 or 1054.3, but must also show that he or she has complied with the informal discovery procedures. Upon such a showing, the court may order an immediate disclosure of discovery materials, initiate contempt proceedings, delay or prohibiting the testimony or the presentation of real evidence, continue of the matter or make any other lawful order. Additionally, the court may advise the jury of a party's failure or refusal to disclose discovery information or of any untimely disclosure.
      Penal Code Section 1054.5(c) reiterates the court's authority to prohibit the testimony of witness as a sanction for non-compliance with a disclosure obligation, but provides that this sanction may be imposed only where all other sanctions have been exhausted. The same subdivision provides that the court may not dismiss a charge as a sanction for noncompliance unless required by the U.S. Constitution.
      A court order to immediately disclose discovery information is not problematic where the non-complying party has disclosed or conceded its intention to call a witness or present evidence that is subject to disclosure. In Sandeffer v. Superior Court, 18 Cal.App.4th 672 (1993), the defense indicated shortly prior to trial that it intended to call only one of two expert witnesses at trial. The defense explained that it had received the report of one expert but had not yet received the report of the other and that it could not decide which of the two experts it would call until it had an opportunity to review the second expert's report. At the request of the prosecution, the court ordered the defense to provide the prosecution with a copy of the completed report.
      The trial court's order was reversed on the basis that the decision to call the witness whose report was turned over had not been made and therefore the disclosure was premature even if the court was of the belief that the attorney was being inaccurate or untruthful. The reviewing court held that "the determination whether to call a witness is peculiarly within the discretion of counsel. And it cannot be with the province of the trial judge to step in his shoes." It is clear, however, that the court still retained the authority to impose any appropriate sanction if either of the experts was later identified as a witness or was actually called to testify and the court concluded that the disclosure of the witness should have been made at an earlier time.
      The untimely disclosure of discovery material may, depending on the circumstances, constitute good cause to continue a trial. The usefulness of this remedy is lost, however, where the competing interest is a defendant's right to a speedy trial. The delay of the presentation of testimony, even during trial, can sometimes provide the complaining party an opportunity to investigate and possibly rebut the newly disclosed material. Contempt or the threat thereof can be an effective enforcement tool where an attorney willfully disobeys a disclosure order of the court or threatens to ignore a disclosure obligation.
Advising the Jury

      The predecessor to the current CALJIC 2.28 instruction was strongly criticized in People v. Bell, 118 Cal.App.4th 249 (2004), and People v. Lawson, 131 Cal.App.4th 1242 (2005). The opinions held that the instruction failed to give jurors guidance as to the meaning or significance of a discovery violation, and also failed to inform jurors that they could not infer a consciousness of guilt especially where nothing suggested that the defendant, as opposed to his or her defense lawyer, was responsible for the non-disclosure.
      The current versions of CALJIC 2.28 and CALCRIM 306 have attempted to address those earlier deficiencies. The reader should decide which of the two instructions best suits his or her purpose.
      The preclusion sanction is reserved to those cases in which the record demonstrates the most egregious discovery abuses. If an omission is willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination ant the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude a witness' testimony. Where the omission is not willful and the court is addressing the potential prejudice to the opposing side, the prejudice would necessarily have to be substantial or irremediable to warrant the exclusion of evidence. People v. Gonzales, 22 Cal.App.4th 1744 (1994).
      Even if a showing of a willful abuse is made, the court still must exhaust all other available remedies or sanctions or otherwise demonstrate why any other unused remedy would be ineffective before it may prohibit the presentation of testimony or the admission of evidence. People v. Edwards, 17 Cal.Cal.App.4th 1248 (1993). A judicial decision to preclude the presentation of defense testimony or evidence should be made cautiously with specific factual findings that are supported by the record.
      The transition to reciprocal discovery has been remarkably smooth. Most delayed disclosures appear unintentional, more technical in nature and are typically cured by brief continuances or a delayed presentation of testimony or evidence. The most egregious attempts to avoid or delay disclosure appear for the most part behind us.
      Many criminal law practitioners appear to have developed an appreciation of the mutual benefit that reciprocal discovery can provide as a tool for case settlement, for eliminating delay and surprise in trial, and for ascertaining the truth in trial.
      Many attorneys are willing to abide with the law as long their adversaries do the same. The latter is precisely why a periodic review of the law's development is essential for those who choose to practice criminal law, and equally essential for those jurists who share the responsibility of enforcing this area of the law.
      Robert M. Martinez is a Los Angeles County Superior Court judge.

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