CALIFORNIA’s 1054.1 Discovery Statute vs. Federal “Due Process” Brady
Every state is free under the U.S. Constitution to establish whatever discovery rules it wants. California provides more criminal discovery than many states. Florida is a champion for defense attorneys as it allows pretrial depositions of key witnesses.
In civil lawsuits over money, lawyers routinely propound written questions and take depositions of witnesses before trial. In criminal cases where life and liberty are at stake, this is rarely allowed (Florida is one of the few states with criminal case depositions). New York does not even require the State to give defense counsel a witness list. California has adopted Penal Code sections 1054 et seq. and by its very terms, Penal Code section 1054 (e) states that “…no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.
Fortunately a long line of cases starting with Brady v. Maryland require that the prosecutors provided “exculpatory” evidence to the defense. However, this is limited to exculpatory evidence that is “material” and the word “material” is a weasel word that places a great deal of discretion in the hands of the prosecutor regarding what gets turned over. This article focuses on the California statute (Penal Code section 1054.1(e)) which requires the turn over of exculpatory evidence.
Many lawyers are not aware of the fact that this requirement applies to ALL exculpatory evidence even if it is not material.
This makes the state provision far broader than the federal provision.
In Barnett v. Superior Court (2010) 50 Cal.4th 890 the Supreme Court contrasted the standard to obtain post-conviction relief under Brady compared to pretrial discovery under 1054.1(e).
The showing that defendants must make to establish a violation of the prosecution’s duty to disclose exculpatory evidence differs from the showing necessary merely to receive the evidence. For example, Penal Code section 1054.1, subdivision (e), requires the prosecution to disclose “[a]ny exculpatory evidence,” not just material exculpatory evidence. To prevail on a claim the prosecution violated this duty, defendants challenging a conviction would have to show materiality, but they do not have to make that showing just to be entitled to receive the evidence before trial. See: Barnett v. Superior Court (2010) 50 Cal.4th 890
The broadest application of Brady and 1054.1(e) is in the area of impeachment. Impeachment evidence is subject to the same Brady rules of disclosure as any other kind of evidence favorable to the defendant.
We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, (1985) 473 U.S. 667, 676,(1985) .
Here are some areas of impeachment and the cases which establish their exculpatory value.
Evidence Potentially Contradicting Claim of Witness
See: Youngblood v. West Virginia (2006) 547 U.S. 867 (Suppressed note written by alleged sexual assault victims could have supported consensual-sex defense.).
Evidence Contradicting a Witness’ Statements
See: People v. Boyd (1990) 222 Cal.App.3d 541, 568-569
Evidence undermining a prosecution witnesses expertise (e.g., inaccurate
statements or expert opinions)
People v. Garcia (1993) 17 Cal.App.4th 1169, 1179 citing various deficiencies associated with an expert’s prior opinions in unrelated cases that needed to be disclosed.
Rough Notes of Officers & Prosecutors that Contain Exculpatory Material
See: Carrillo v. County of Los Angeles 798 F.3d 1210, 1226 (2015) [contemporaneous handwritten notes undercutting lineup identification were Brady material.; Paradis v. Arave 240 F.3d 1169, 1176-77 (2001) [Prosecutor’s notes recording contradictory opinions of medical examiner discoverable as Brady material.]
Faulty Investigation
The defense has the right to present a defense that casts doubt due to a poor or faulty investigation. Bowen v. Maynard (1986) 799 F2d 593, 613 and Brady material that assists in establishing this point must be produced. See: United States v. Howell (2000) 231 F.3d 615, 625 [holding that even information that is inculpatory is Brady material if it casts doubt on the quality of the investigation.]
Expert Cross Examination Information
Wide latitude should be allowed in cross-examining experts on their qualifications and the reasons given for the opinions expressed. Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 796
“Once an expert offers his opinion . he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of the factual witness. The expert . may be subjected to the most rigid cross-examination concerning his qualifications, and his opinion and its sources.”
(Grimshaw at 796)
Impeachment by Contradiction
During a witness’s testimony, he or she will normally state that certain facts occurred. Proof that even one of them actually did not occur is indicative of a general lack of credibility. (Kennemur v. State of California, 133 Cal. App. 3d 907, 923, (5th Dist. 1982); see generally Evidence Code § 780(i).)
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