STANDARD FOR DISCLOSURE

Transcription

1 BRADY LAW AND POLICIES Michael D. Schwartz Special Assistant District Attorney County of Ventura (805) Revised January 27, 2013 March 5, 2013 * Benson added 3/11/13, Gutierrez added 3/13/13, Bridgeforth added 3/25/13 Nazir and Alexander added 4/10/13, Breceda added 4/29/13 Valle added 6/17/13, Aguilar and Rivaz-Felix added 8/14/13, added 11/11/13 Gentry cite corrected 2/10/14, J.E. added 2/21/ Ventura County District Attorney Law enforcement and prosecution agencies and their counsel may make copies for their own non-commercial educational purposes I. STANDARD FOR DISCLOSURE A. The prosecution is obligated to provide the defense in criminal cases with exculpatory evidence that is material to either guilt or punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87.) B. The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (People v. Roberts (1992) 2 Cal.4th 271, 330.) The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. (United States v. Olsen (9th Cir. 2013) 704 F.3d 1172.) C. In re Sassounian (1995) 9 Cal.4th 535, , fn. 5, disapproved of the statement in People v. Morris (1988) 46 Cal.3d 1, 30 fn. 14, that the prosecution s duty of disclosure extends to all evidence that reasonably appears favorable to the accused... Instead, disclosure is required only of evidence that is both favorable to the accused and * This outline includes some unpublished opinions. An opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court. (Cal. Rules of Court, rule (a).) Unpublished federal court cases can be cited in California state courts but may be of limited value as precedent. (Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 990, fn. 4; Lam v. Ngo (2001) 91 Cal.App.4th 832, 841, fn. 5.) Unpublished federal court decisions may be cited in federal court if issued after January 1, (FRAP 32.1; 9th Cir. Rule 36-3.) 1

2 material either to guilt or to punishment. Sassounian at p. 545, fn. 6, also disapproved of a statement in Morris that evidence is material if it tends to influence the trier of fact because of its logical connection with the issue. The correct test is whether it raises reasonable probability that, had [it] been disclosed to the defense, the result... would have been different [citation] that is to say, a probability sufficient to undermine[ ] confidence in the outcome. (Ibid.) D. Failure to provide evidence that duplicated evidence that was provided does not violate Brady unless the additional evidence could have affected the result of the trial. (United States v. Inzunza (9th Cir. 2011) 638 F.3d 1006, 1021.) E. A showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant s acquittal. The reversal of a conviction is required upon a showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. (Youngblood v. West Virginia (2006) 547 U.S. 867, 870; In re Sodersten (2007) 146 Cal.App.4th 1163, 1227.) The prosecution must disclose materials that are potentially exculpatory or impeaching. (United States v. Olsen (9th Cir. 2013) 704 F.3d 1172.) F. Brady claims typically require showing the probability of a different result of the proceeding in terms of the verdict, rather than in terms of an intermediate event such as whether the defendant would have testified. (People v. Hoyos (2007) 41 Cal.4th 872, 918, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, ) 1. See State v. Thompson (La. App. 2002) 825 So.2d 552, discussed in Connick v. Thompson (2011) U.S., 131 S.Ct. 1350, 179 L.Ed.2d 417: attempted robbery conviction reversed for failure to disclose lab result; later murder conviction also reversed because defendant declined to testify based on attempted robbery conviction. 2. False assurance that evidence did not exist can violate Brady if it caused defense to abandon lines of investigation or had adverse effect on preparation of case. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, ) G. The materiality requirement of Brady subsumes the usual appellate harmless error analysis. (In re Pratt (1999) 69 Cal.App.4th 1294, 1313.) However, Although Brady disclosure issues may arise in advance of, during, or after trial [citation], the test is always the same. (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 7-8.) 1. But see United States v. Price (9th Cir. 2009) 566 F.3d 900, 913, fn. 14; and United States v. Olsen (9th Cir. 2013) 704 F.3d 1172, fn. 3, stating that in deciding what evidence to turn over, prosecutors should turn over all evidence 2

3 which might reasonably be considered favorable to the defense, whether or not it is material. 2. Penal Code section (e) requires disclosure of [a]ny exculpatory evidence, not just material exculpatory evidence. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 901 [emphasis added].) H. The obligation under ABA Model Rule of Professional Conduct 3.8(d) (2008) is broader than Brady: The prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. (See ABA Formal Opinion , Prosecutor s Duty to Disclose Evidence and Information Favorable to the Defense, ; see also Cone v. Bell (2009) 556 U.S. 449, 129 S.Ct. 1769, 1783, 173 L.Ed.2d 701, 718, fn. 15.) 1. A proposal to adopt a version of the ABA rules was approved by the State Bar of California and submitted to the California Supreme Court for approval. The proposal was withdrawn 10/28/11, and the State Bar is revising its submission. Proposed California rule 3.8(d) contains some limiting language: prosecutors would be required to comply with all constitutional obligations, as interpreted by relevant case law, to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense... For complete language and status of proposal, go to sionalconduct.aspx. I. Whether evidence comes within Brady can rarely be determined in advance since the determination of materiality is fact specific. (People v. Salazar (2005) 35 Cal.4th 1031, 1052, fn. 8.) The cumulative effect of the suppressed evidence is evaluated rather than item by item. (Kyles v. Whitley (1995) 514 U.S. 419, ; In re Sodersten (2007) 146 Cal.App.4th 1163, 1228.) J. Discovery should not be withheld just because it is inconsistent with the prosecution s theory or because the prosecution does not believe it is true. (In re Miranda (2008) 43 Cal.4th 541, 577.) In Tennison v. City and County of San Francisco (9th Cir. 2009) 570 F.3d 1078, , the court held that confession of third party should have been disclosed after defendant convicted, despite detective s belief that it was inherently unbelievable. [W]hen analyzing a Brady claim, we do not reweigh evidence [or] assess the credibility of witnesses. (Williams v. Ryan (9th Cir. 2010) 623 F.3d 1258, 1266.) But see In re Cox (2003) 30 Cal.4th 974, , holding that a witness s statement was not material and did not need to be disclosed where a referee found it was the epitome of noncredibility, included assertions that could not possibly be true, were refuted by more credible witnesses, and had been thoroughly investigated and rejected. 3

4 K. An extreme case: Strickler v. Greene (1999) 527 U.S Inconsistent statements of an eyewitness regarding identification of the defendant were not material under Brady because in light of the sufficiency of other evidence against defendant, petitioner has not shown that there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed. (Id. at p ) The court reached this conclusion even though it acknowledged that the witness s testimony was prejudicial in the sense that it made petitioner s conviction more likely than if she had not testified, and discrediting her testimony might have changed the outcome of the trial (Id. at p. 289) and there was a reasonable possibility of a different result. (Id. at p. 291.) L. There is a conflict of authority as to whether to be material under Brady, undisclosed information or evidence acquired through that information must be admissible. (See Paradis v. Arave (9th Cir. 2001) 240 F.3d 1169, 1179 [citing conflicting cases]; Williams v. Ryan (9th Cir. 2010) 623 F.3d 1258, 1264 [should have disclosed letter by inmate containing hearsay statement that could have impeached government witness]; United States v. Price (9th Cir. 2009) 566 F.3d 900, , 913 fn. 14 [favorable inadmissible evidence reasonably likely to lead to admissible evidence should be disclosed]; United States v. Sipe (5th Cir. 2004) 388 F.3d 471, 485 & fn. 34 [inadmissible evidence may be material under Brady]; Norton v. Spencer (1st Cir. 2003) 351 F.3d 1, 9 [ inadmissible evidence is by definition not material unless it provides so promising a lead to strong exculpatory evidence ]; Smith v. Baldwin (9th Cir. 2007) 510 F.3d 1127, 1148 [polygraph evidence not discoverable because inadmissible] and United States v. Gonzalez (D. Del. 1996) 938 F. Supp. 1199, 1208 [same].) In Wood v. Bartholomew (1995) 516 U.S. 1, the court held that failure to disclose polygraph evidence did not constitute Brady error because it was inadmissible, and because the defense failed to show that it would have affected investigation or cross-examination by the defense, i.e., only speculation rather than a reasonable probability that it would have affected the outcome. In People v. Martinez (2002) 103 Cal.App.4th 1071, 1079, the court held that prior convictions exonerated under PC are not admissible, but must be disclosed to the defense. 1. The California Supreme Court has declined to resolve this issue. (Compare People v. Salazar (2005) 35 Cal.4th 1031, 1043 [suggesting that must be admissible to be material]; People v. Hoyos (2007) 41 Cal.4th 872, & fn , overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, k [discussing conflicting cases and holding that admissibility against a co-defendant was sufficient for defendant to raise the issue]; In re Miranda (2008) 43 Cal.4th 541, [declining to resolve issue but noting that the trial judge, not the prosecutor, is the arbiter of admissibility, and the prosecutor s Brady disclosure obligations cannot turn on the prosecutor s view of whether or how defense counsel might employ particular items of evidence at trial ].) M. Conflicting authority as to whether Brady applies to evidence relevant to a suppression motion. (United States v. Gamez-Orduno (9th Cir. 2000) 235 F.3d 453, [applies 4

5 Brady to search issue]; United States v. Stott (7th Cir. 2001) 245 F.3d 890, 902 [discusses conflicting cases].) N. Standard of proof for disclosure under Ventura County DA policies: substantial information, i.e., facially credible information that might reasonably be deemed to have undermined confidence in a later conviction in which the law enforcement employee is a material witness, and is not based on mere rumor, unverifiable hearsay, or a simple and irresolvable conflict in testimony about an event. 1. Substantial information standard also adopted in the Santa Barbara District Attorney s Brady policy. 2. Ventura DA has not adopted the Los Angeles County District Attorney s clear and convincing evidence standard. O. The government has no Brady obligation to communicate preliminary, challenged, or speculative information. (United States v. Agurs (1976) 427 U.S. 97, 109 fn. 16, quoting the concurring opinion of Justice Fortas in Giles v. Maryland (1967) 386 U.S. 66, 98.) 1. Followed in United States v. Diaz (2nd Cir. 1990) 922 F.2d 998, 1006: no Brady error in failing to communicate suspicions that a government informant had stolen $18,000; the government did not have knowledge that he had stolen the money until after the trial had concluded. 2. Followed in United States v. Amiel (2nd Cir. 1996) 95 F.3d 135, Discredited government witness, Mongelli, claimed another witness, Wallace, was deeply involved in organized crime and had committed several murders. Police questioned Wallace and found that he was not a suspect in any investigation and was not arrested in connection with any organized crime activity. After investigating possible wrongdoing by Wallace, the... prosecution found no evidence to support Mongelli s accusations. Pursuant to Diaz, it had no obligation to inform the defense. 3. At least two cases have taken a more limited view of the exception. In United States v. Kiszewski (2nd Cir. 1989) 877 F.2d 210, , the Court of Appeal held that the trial court should have examined the personnel records of a government witness that included allegations that he was on the take, even though an FBI investigation had exonerated the witness on that charge. In United States v. Veras (7th Cir. 1995) 51 F.3d 1365, , the court held that the government was required to disclose claims by a convicted drug dealer and perjurer that an officer stole money and lied on search warrant applications. The court rejected the argument that the allegations were not corroborated, and held that they had some grounds and were serious enough to warrant a two-year investigation. 5

6 4. Brady does not require disclosure of entirely ambiguous evidence (notes in which codefendant identifies an accomplice, but unclear if he is referring to the charged murder or other robberies committed by codefendant). (Wetzel v. Lambert (2012) 132 S.Ct. 1195, 182 L.Ed.2d 35.) 5. Brady does not require disclosure of a rumor in the community that is weak, remote, and inconclusive. (Smith v. Stewart (9th Cir. 1998) 140 F.3d 1263, 1273.) 6. The failure to disclose untrustworthy and unsubstantiated allegations against a government witness is not a Brady violation. (United States v. Souffront (7th Cir. 2003) 338 F.3d 809, 823.) 7. Brady does not require disclosure of material that is only unfavorable to defendant, or information that is of mere speculative value, including where mere speculation that there might have been something useful for impeachment purposes. (People v. Ashraf (2007) 151 Cal.App.4th 1205.) In Runningeagle v. Ryan (9th Cir. 2012) 686 F.3d 758, 770, the defense knew that the co-defendant s cellmate had implicated co-defendant in the murder, but it was mere speculation that his statement exonerated defendant. 8. Materials from ongoing investigation may come within Brady; the fact that the reports were generated because of an internal investigation is irrelevant, and the prosecution cannot wait until an administrative decision is made. (United States v. Olsen (9th Cir. 2013) 704 F.3d 1172.) However, courts factor in governmental interest in confidentiality of ongoing investigation, including privacy interests of victims and witnesses. (People v. Jackson (2003) 110 Cal.App.4th 280, 288; see County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, ) P. Impeachment evidence must disclose more than minor inaccuracies. (People v. Padilla (1995) 11 Cal.4th 891, 929, overruled on other grounds, People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Q. No Brady obligation to disclose complaints about peace officer misconduct where the only evidence of such misconduct is defense testimony at an unrelated criminal trial. (People v. Jordan (2003) 108 Cal.App.4th 349.) Prosecution is not required to catalogue the testimony of every defense witness in every criminal trial, cull out complaints about peace officers, and disclose whenever that officer is a witness in another case. Defense attacks upon the integrity of a police officer are a common feature of criminal trials. Given that the proponent of the evidence has a strong incentive to avoid conviction, such complaints do not immediately command respect as trustworthy or indicate actual misconduct on the part of the officer...[e]ven if the unrelated trial results in acquittal... (Id. at p. 362.) 6

7 R. [T]he prudent prosecutor will resolve doubtful questions in favor of disclosure. (United States v. Agurs (1976) 427 U.S. 97, 108.) See also Kyles v. Whitley (1995) 514 U.S. 419, 439, which warns prosecutors against tacking too close to the wind in withholding evidence. S. The prosecution should not be penalized for determining that certain evidence might come within Brady. In People v. Salazar (2005) 35 Cal.4th 1031, 1052, fn. 8, the district attorney had assembled boxes of potentially impeaching material regarding an expert witness to make available for defense attorneys to examine. The court held that the boxes had nothing to do with whether there was a Brady violation at trial. Although there seems to have been a lively debate within the [district attorney s] office as to whether these Ribe boxes were assembled out of an abundance of caution or because of a belief the information had to be produced to the defense, this court need not defer to a prosecutor s opinion that information already identified is or is not Brady material. T. Ventura County District Attorney Legal Policies Manual, Art. I, chpt. 2, (N)(1), pages 63-64, states, All information favorable to the defense shall be disclosed to the defense or shall be submitted by the prosecution to a court for an in camera review, unless clear authority permits nondisclosure. U. Discovery and admissibility are different. The fact that we have disclosed information does not preclude us from arguing that it is inadmissible. II. THE PROSECUTION TEAM A. The prosecution must disclose information in possession of the prosecution team, including information possessed by others acting on the government s behalf that were gathered in connection with the investigation. Includes any of the government s agents involved in the prosecution. (United States v. Price (9th Cir. 2009) 566 F.3d 900, 908 [records of arrests of prosecution witness in possession of investigating detective]; (Aguilar v. Woodford (9th Cir. 2013) 725 F.3d 970 [history of misidentifications by scent dog known to officer handler, another prosecutor, and elected DA]; People v. Whalen (2013) 56 Cal.4th 1 [notes of DOJ criminalist who participated in the investigation and was employed by an investigating agency].) [T]he disclosure requirements set forth in Brady apply to a prosecutor even when the knowledge of the exculpatory evidence is in the hands of another prosecutor. (Benn v. Lambert (9th Cir. 2002) 283 F.3d 1040, See Breceda v. Superior Court (2013) 215 Cal.App.4th 934, holding that under Penal Code section , deputy district attorney presenting case to grand jury has duty to gather and disclose exculpatory evidence known to others in the DA s office; fact that information was not known to specific deputy district attorney did not excuse obligation; court declines to determine if Brady applies.) 7

8 1. However, A prosecutor is not deemed to have constructive knowledge of material of which he would be logically unaware. (United States v. Coleman (W.D. Va. 1998) 11 F.Supp.2d 689, 692 [prosecutor not know of information possessed by state prison officials]; United States v. Quinn (2d Cir.1971) 445 F.2d 940, 944 [federal prosecutor in one district not in constructive knowledge of information in possession of federal prosecutor in another district]; Bouloute v. United States (EDNY 2009) 645 F.Supp.2d 125, 133 [no duty to know information in possession of prosecutor in another state, inaccurately quoting Kyles v. Whitley (1995) 514 U.S. 419, 437, that the duty of a prosecutor is to learn of evidence known to others acting on the government's behalf in this case ].) B. Does not include governmental agencies with no connection to the investigation or prosecution of the case. (In re Brown (1998) 17 Cal.4th 873, 879; In re Steele (2004) 32 Cal.4th 682, 697; People v. Zambrano (2007) 41 Cal.4th 1082, 1133, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 [Sheriff who served only as defendant s jailor not part of team for purposes of disclosure of letters from defendant s sister to Sheriff].) Does not include evidence in possession of out-of-state agencies that provided assistance, interviewed a few witnesses, and provided information regarding prior incidents that were offered in aggravation in capital case, where not under control of prosecutor, agencies were not participating in a joint investigation or sharing resources, and prosecution had no ready access to information. (Barnett v. Superior Court (2010) 50 Cal.4th 890.) C. No general duty of prosecution to review files unrelated to case to search for impeachment evidence, but factors include whether defense has made a request, prosecution s ease of access to the information, and likelihood of evidence favorable to the defense. (J.E. v. Superior Court (Feb , D064543) Cal.App.4th, 2014 WL ) D. In People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, the court held that CDC has a hybrid status: part investigatory agency that is part of the prosecution team (its investigation of murder inside the prison), and part third party whose records may be obtained only though an SDT (records kept by CDC in the course of running the prison such as inmate movement records, etc.) E. Medical personnel of Sexual Assault Response Team, with statutory duty to turn physical evidence to the proper law enforcement agency, are part of the prosecution team ; prosecution must turn over videotape of medical exam that supported defense s contention of no sexual assault. (People v. Uribe (2008) 162 Cal.App.4th 1457, ; for related State Bar discipline, see In re Troy Alexander Benson (State Bar Court, Hearing Dept., 08-O PEM, Jan. 17, 2013) 8

9 F. Disclosure required only for information actually possessed by the prosecution team. The government has no obligation to produce information which it does not possess or of which it is unaware. (United States v. Price (9th Cir. 2009) 566 F.3d 900, 910, fn. 11.) No violation for information known to civilian prosecution witness but unknown to prosecuting attorney or investigating agency (prosecution first learned of information during witness s testimony at pretrial hearing). The prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense... it need not extract all possible information from a private citizen who is a potential prosecution witness in order to disclose it to the defense. But may be a problem if prosecution deliberately delays obtaining information for purpose of avoiding discovery. (People v. Panah (2005) 35 Cal.4th 395, 460 [having expert prepare report]; People v. Zambrano (2007) 41 Cal.4th 1082, 1163, fn. 34, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [interview of witness].) 1. In People v. Whalen (2013) 56 Cal.4th 1, the court found no Brady violation for information from a civilian witness learned by the prosecution for first time during her testimony where there is no evidence that the prosecutor knew, or should have known, of the information. G. In one case of attorney discipline, the prosecutor purposely made himself ignorant of the details [of evidence impeaching the credibility of a prosecution expert] by taking a see no evil or hear no evil approach. The State Bar Court ruled that the prosecutor could not avoid Brady responsibilities by looking the other way. (In re Brooke P. Halsey, Jr. (Cal. State Bar Court, Hearing Dept. 02-O PEM, Aug. 1, 2006) discipline aff d by Calif. Supreme Court in Halsey on Discipline (Dec. 13, 2006, S147283) 2006 Cal. LEXIS ) When a prosecutor suspects perjury, the prosecutor must at least investigate further.... (United States v. Price (9th Cir. 2009) 566 F.3d 900, 910, fn. 11.) In In re Troy Alexander Benson (State Bar Court, Hearing Dept., 08-O PEM, Jan. 17, 2013) a prosecutor received a public reproval for failing to learn of and disclose the existence of a video tape from a Sexual Assault Response Team examination; when he learned such a tape existed in one case, he should have ascertained if such a tape existed in another SART case. H. Conflicting authority as to whether Brady requires disclosure of misconduct of peace officer who is part of prosecution team where misconduct is known only to the offending officer. Compare People v. Johnson (1996) 226 A.D.2d 828, 641 N.Y.S.2d 148 (disclosure not required) with Arnold v. McNeil (M.D. Fla. 2009) 622 F.Supp.2d 1294, affirmed, Arnold v. Secretary, Dept. of Corrections (11th Cir. 2010) 595 F.3d 1324 (disclosure required). See discussion in Campiti v. Matesanz (D. Mass. 2002) 186 F.Supp.2d 29, 46-52, affirmed, (1st Cir. 2003) 333 F.3d

10 III. EXAMPLES OF BRADY EVIDENCE A. Evidence directly opposing guilt, e.g., statement of witness that he saw another person was the shooter. (People v. Jackson (1991) 235 Cal.App.3d 1670, 1676.) 1. Includes evidence that would support an affirmative defense. (United States. v. Doe (9th Cir. 2013) 705 F.3d 1134 [documents showing defendant s assistance to government could support entrapment/public authority defense.) 2. A mere list of persons present when a witness is interviewed is not favorable or material absent a specific showing. (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359.) B. Third party culpability evidence, but only if it tends to exclude the defendant as the perpetrator of the crime. The reasonable probability standard presents a heavy burden in establishing the materiality of investigation files in similar but uncharged crimes. (People v. Jackson (2003) 110 Cal.App.4th 280, 289.) Brady error found in United States v. Jernigan (9th Cir. 2007) 492 F.3d 1050 (bank robbery based on identification evidence; prosecution failed to disclose that another suspect with similar description robbed two other banks in same area after defendant in custody). C. Substantial material evidence bearing on the credibility of a key prosecution witness. (People v. Ballard (1991) 1 Cal.App.4th 752, 758; Giglio v. United States (1972) 405 U.S. 150, 154.) For example: 1. Inconsistent statements of witness regarding the case. (Smith v. Cain (2012) 565 U.S., 132 S.Ct. 627, 181 L.Ed.2d 571 [whether witness could identify defendant]; People v. Boyd (1990) 222 Cal.App.3d 541, ) 2. Difficulty of witness to remember key facts. (United States v. Kohring (9th Cir. 2011) 637 F.3d 895.) 3. False statements by witness. a. In Banks v. Dretke (2004) 540 U.S. 668, the prosecution failed to correct testimony of a witness that he had not given a statement to police and had only talked to an officer a few days before trial. In truth, he had been intensively coached by law enforcement during several practice sessions leading to closely rehearsed testimony. The prosecution failed to produce a 74-page transcript of an interview of that witness. The Supreme Court held that the defendant was entitled to appeal this issue on Brady grounds (but did not resolve whether it violated Brady). After 10

11 remand, the court found the withheld evidence was favorable but not material. (Banks v. Thaler (5th Cir. 2009) 583 F.3d 295, 300.) b. In People v. Dickey (2005) 35 Cal.4th 884, , the prosecution failed to disclose false statement by witness to prosecutor that he had been released on his own recognizance in return for his testimony pursuant to an agreement with another prosecutor. Statement was favorable in that it tended to impeach credibility of witness, but was not material in light of jury s knowledge that witness was a drug addict, was motivated by monetary reward, that he wanted revenge against defendant, etc. c. False evidence, uncorrected by the prosecution when it occurs, requires reversal if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. (Napue v. Illinois (1959) 360 U.S. 264; Jackson v. Brown (9th Cir. 2008) 513 F.3d 1057, 1076.) Under Penal Code section 1473 it does not matter why evidence is false or whether any party to the proceeding knew it was false. (In re Richards (2012) 55 Cal.4th 948, 961.) Due process requires prosecution to correct false evidence that was presented, even if not intentionally submitted. (Campbell v. Superior Court (2008) 159 Cal.App.4th 635, 652 [after mental retardation hearing, witness signed declaration that he had confused defendant with another person.]) If false evidence is insufficient to mandate reversal under Napue, it should then be considered collectively with any Brady violations to determine if together they meet the higher standard of Brady materiality, i.e., there is a reasonable probability that... the result of the proceeding would have been different. (Jackson v. Brown, supra.) See Jones v. Ryan (9th Cir. 2012) 691 F.3d 1093, 1104 ( innocent mistake about who kicked in door was not material). 4. Omission of information in probable cause declaration and police reports (that confidential informant provided information leading to detention of defendant) was basis for placing officer on Brady list in Nazir v. County of Los Angeles (C.D. Cal., Mar. 2, 2011, CV ) 2011 WL (not published) and Nazir v. County of Los Angeles (Apr. 2, 2013, B238477) 2013 WL (not published); court found prosecutors civilly immune for decision but did not address correctness of decision. 5. Prior interview of witness suggesting coaching or pressure that might affect courtroom testimony. (In re Sodersten (2007) 146 Cal.App.4th 1163, [suggestive interview technique for child witness]; In re Brooke P. Halsey, Jr. (Cal. State Bar Court, Hearing Dept. 02-O PEM, Aug. 1, 2006) discipline aff d by Calif. Supreme Court in Halsey on Discipline (Dec. 13, 2006, S147283) 2006 Cal. LEXIS 15650) [prosecutor coaching expert during practice session, including writing out suggested testimony].) 11

12 6. Evidence of poor mental and emotional health if exhibits disposition to lie or hallucinate, or impaired ability to perceive or tell the truth, during the time-frame of the events testified to. Mental health records may be Brady; informal opinions are not. (United States v. Kohring (9th Cir. 2011) 637 F.3d 895.) Psychiatric care does not necessarily reflect on credibility; the mental illness or emotional instability of a witness can be relevant to credibility if it affects the witness s ability to perceive, recall or describe the events in question. (People v. Verdugo (2010) 50 Cal.4th 263, 292.) Colorable claim of Brady violation where failure to disclose psychiatric reports that cast doubt on informant witness s veracity, motive for testifying, and competency, including that informant was predatory, manipulative, unscrupulous, and schizophrenic, including faked suicide attempts; state s own expert employees had repeatedly expressed doubts as to informant s credibility, truthfulness, and competency. (Gonzalez v. Wong (9th Cir. 2011) 667 F.3d 965.) See People v. Lightsey (2012) 54 Cal.4th 668, 714 (questioning witness regarding prior drug use improper; insufficient showing that affected her perception or memory). 7. Promises or inducements to witness. (Jackson v. Brown (9th Cir. 2008) 513 F.3d 1057; In re Jackson (1992) 3 Cal.4th 578, , overruled as to materiality standard in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6; United States v. Bagley (1985) 473 U.S. 667, [government withheld evidence that witnesses were paid for their testimony].) a. People v. Dickey, supra, 35 Cal.4th 884: Witness falsely testified that he received no favors from prosecution; in fact prosecution had arranged for landlord to provide witness with room and board to be later compensated from money by anticipated monetary reward. When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. No reversal here because harmless error in light of the evidence against defendant. b. Financial assistance in helping witness relocate could be favorable to defense, but no Brady violation where it would have opened the door to evidence harming defendant (i.e., that defendant s family had threatened witness). (People v. Verdugo (2010) 50 Cal.4th 263, 285.) c. Habeas corpus granted where prosecution failed to disclose that informant had previously received reduced sentences for providing prosecutors with favorable testimony in other cases. (Van de Kamp v. Goldstein (2009) 555 U.S. 335, 339. See Gentry v. Sinclair (9th Cir. 2013) 705 F.3d 884 (fact that witness was a paid informant for same detectives and same 12

13 prosecutors in other cases was favorable, but was not material in light of other significant impeachment of witness.) d. Brady error to not disclose that informant Sidney Storch had negotiated a reduced sentence in exchange for his testimony, without knowledge of his public defender; evidence would have been relevant to his motivation to testify and his sophistication as an informant. Evidence of his prior history as an informant should have been disclosed because may have led defense to investigate and learn that he had been untruthful in the past. (Maxwell v. Roe (9th Cir. 2010) 628 F.3d 496. e. Must disclose implied promise for leniency, even in absence of explicit deal. (Sivak v. Hardison (9th Cir. 2011) 658 F.3d 898 [letters to prosecutors in other jurisdictions requesting dismissals and favorable treatment for informant].) Prosecutor s request for leniency for informant (sealed letter to judge) must be disclosed, even if not known to the informant. (Killian v. Poole (9th Cir. 2002) 282 F.3d 1204.) f. Special immigration status given to informant must be disclosed. (United States v. Blanco (9th Cir. 2004) 392 F.3d 382, 392.) Fact that victim has applied for U Visa admissible in trial of that case. (State v. Valle (2013) 255 Or.App. 805, 298 P.3d 1237.) g. See Section VIII (E) below regarding limitations on informant testimony. 8. Prior felony convictions. All felony convictions of material witness must be disclosed. (Evid. Code 788; Pen. Code , subd. (d).) Prosecution has duty under Penal Code and Brady to run rap sheets on material witnesses to search for felony convictions. (People v. Little (1997) 59 Cal.App.4th 426.) However, only those involving moral turpitude are admissible, to be determined in the abstract. (People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1401.) a. The Supreme Court of California has denied petitions for review on the issue of whether prosecutors can be required to run rap sheets on peace officer witnesses. (James Raymond Sidwell v. Superior Court of Contra Costa County, S193499, review denied 8/10/11; Brenton Clarke Goff v. Superior Court of Contra Costa County, S193454, review denied 8/10/11.) 9. Prior moral turpitude conduct or conduct showing dishonesty, including misdemeanors, whether or not they led to conviction. (People v. Jordan (2003) 108 Cal.App.4th 349, 362; United States v. Price (9th Cir. 2009) 566 F.3d 900, & fn. 14; People v. Clark (2011) 52 Cal.4th 856, 931; People v. Wheeler (1992) 4 Cal.4th 284, [Wheeler was superseded on another point as stated in People v. Duran (2002) 97 Cal.App.4th 1448, : under Evid. 13

14 Code 452.5(b), the facts of a prior conviction may be established by court records of the conviction.]) a. Sustained citizen complaints of officer misconduct likely involve moral turpitude and should be disclosed under Brady. (People v. Jordan, supra.) b. Impeachment with a felony conviction is limited to the name, type, date, and place of conviction, not the underlying facts. But it is unsettled whether this rule still applies after Wheeler. (People v. Ardoin (2011) 196 Cal.App.4th 102, 120.) c. The least adjudicated elements test has been applied to misdemeanor convictions admitted under Wheeler. (People v. Chavez (2000) 84 Cal.App.4th 25, 28.) However, People v. Lepolo (1997) 55 Cal.App.4th 85, notes that this approach is inconsistent with Wheeler since no conviction is required; instead, the court must determine if the conduct constitutes moral turpitude. (See also People v. Rivera (2003) 107 Cal.App.4th 1374, 1381, fn. 3, questioning whether impeachment with misdemeanors should be limited to the elements of the offense.) d. A felony conviction that has been expunged pursuant to section cannot be used to impeach a witness, but can be used to impeach a defendant. (People v. Harris (1989) 47 Cal.3d 1047, 1091; People v. James (1940) 40 Cal.App.2d 740, ) The court in James relied upon People v. Mackey (1922) 58 Cal.App. 123, 131, which held, no convicted person discharged after probation thenceforth should be regarded as one possessed of the degree of turpitude likely to affect his credibility as a witness. This holding of Mackey was quoted with approval in Vaughn v. Jonas (1948) 31 Cal.2d 586, 595.) Proposition 8 does not change this rule. (People v. Field (1995) 31 Cal.App.4th 1778, However, such convictions must still be disclosed. (People v. Martinez (2002) 103 Cal.App.4th 1071, 1079.) e. Competent and otherwise admissible evidence of another crime is not made inadmissible by reason of the defendant s acquittal of that crime. However, the acquittal may weaken and rebut evidence of the other crime. (People v. Griffin (1967) 66 Cal.2d 459, ) f. Court must exercise its discretion under Evidence Code section 352 as to whether to allow impeachment of credibility of witness with prior moral turpitude conduct, with factors including whether it reflects on the witness s honesty or veracity and whether it is near or remote in time. Misconduct other than a prior conviction generally is less probative of immoral character or dishonesty and may involve problems involving proof and unfair surprise. (People v. Clark (2011) 52 Cal.4th 856,

15 932; see People v. Lightsey (2012) 54 Cal.4th 668, [misdemeanor ADW conviction did not strongly demonstrate moral turpitude and was properly excluded under 352].) g. Dishonesty need not be case related or job related to be discoverable. For example, peace officer convicted of petty theft or spousal battery, or peace officer lies at internal investigation. (But see CHP v. Superior Court (2000) 84 Cal.App.4th 1010, 1023 [ time card irregularities improperly disclosed under Pitchess; although defendant made sufficient showing for disclosure of incidents of filing false police reports, there is insufficient similarity between the two types of misconduct].) h. Fact that detective was fired from his previous job for misconduct and that he had lied to obtain search warrants in other case was favorable as it could have been used to impeach his credibility, but was not material under facts of the case. (Gentry v. Sinclair (9th Cir. 2013) 705 F.3d 884.) i. An officer is not entitled to lie at first and eventually tell the truth; no one bite rule for peace officer honesty. (Kolender v. San Diego County Civil Service Commission (2005) 132 Cal.App.4th 716.) j. Moral turpitude offenses include crimes that necessarily involve an intent to defraud or intentional dishonesty for the purpose of personal gain. (In re Duggan (1976) 17 Cal.3d 416, 422.) Moral turpitude has been defined as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. (Henry H. v. Board of Pension Comrs. (1983) 149 Cal.App.3d 965, ) In the context of administrative action against licensees and discipline of public employees, moral turpitude may be defined in the context of fitness to perform that vocation. (Brewer v. Department of Motor Vehicles (1979) 93 Cal.App.3d 358, 365.) See People v. Steele (2000) 83 Cal.App.4th 212, 222 (furnishing false information to a peace officer is a moral turpitude offense). k. See Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, upholding the termination of a peace officer for accessing DMV and CLETS information without a legitimate law enforcement purpose, and his unauthorized disclosure of those records, but not discussing the moral turpitude or Brady issues. See also Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, holding that use of police computer system for unauthorized purposes did not violate Penal Code 502, but could be basis for discipline. 15

16 l. For list of moral turpitude offenses, see CEB, Calif. Criminal Law Procedure & Practice (2012 ed.) Juvenile records of witness may be discoverable. (Davis v. Alaska (1974) 415 U.S. 308.) However, you need to petition the juvenile court to release records, even from the DA juvenile file. (Welf. & Inst. Code 827; Cal. Rules of Court, rule 5.552; Judicial Council form JV-570; J.E. v. Superior Court (Feb , D064543) Cal.App.4th, 2014 WL ) Either the prosecution or the defense may petition the court for in camera review of juvenile file for Brady information. (J.E. v. Superior Court, supra.) 11. The fact that charges are pending against the witness, even if not moral turpitude offenses. (People v. Coyer (1983) 142 Cal.App.3d 839; People v. Hayes (1992) 3 Cal.App.4th 1238.) Fact that witness has been or is still being investigated for crime (sexual misconduct with minors) may have a bearing on incentive to cooperate with prosecution and may be Brady. (United States v. Kohring (9th Cir. 2011) 637 F.3d 895.) But failure to disclose that witness had pending theft charges was not material under Brady where pending charges were not particularly serious, witness testified consistently at preliminary hearing before being charged, and witness later signed declaration that she did not expect a benefit and it did not affect her testimony. (People v. Letner (2010) 50 Cal.4th 99, ) 12. Probation or parole status of witnesses. (People v. Hayes (1992) 3 Cal.App.4th 1238, 1245.) But there is no absolute rule that a witness s probationary status is admissible for impeachment, in the absence of evidence of an offer of reward or immunity, benefits related to probationary status in exchange for testimony, or threats of probation violation. (People v. Vilan (Oct. 24, 2001, E026962) 2001 Cal. App. Unpub. LEXIS 2335, 2001 WL (not citeable), citing People v. Harris (1989) 47 Cal.3d 1047, ) In People v. Brady (2010) 50 Cal.4th 547, 560, the court properly excluded evidence that a prosecution witness was on probation for domestic battery where there was no showing that he had been offered leniency or threatened with retaliation by the prosecution. 13. Evidence that a witness has a racial, religious or personal bias against the defendant individually or as a member of a group. (Evid. Code 780 (f); In re Anthony P. (1985) 167 Cal.App.3d 502, ) a. Anthony P., 167 Cal.App.3d at pp , gave six examples of ways bias may be established: (1) the witness may directly admit bias, (2) the witness may admit making past statements which are circumstantial evidence of bias, (3) the witness may have acted in ways which are consistent with the presence of bias, (4) the witness may admit that if confronted with a hypothetical situation she would act or speak in a certain way which an unbiased person would not be expected to do, (5) the 16

17 witness may have had some personal experience which provides a motive to be biased, or (6) a witness may come from a family or social environment which encourages bias against certain groups. b. Gang membership of witness may demonstrate a bias. (People v. Johnson (2006) 142 Cal.App.4th 776.) c. See Pappas v. Giuliani (2d Cir. 2002) 290 F.3d 143: Police officer assigned to department s computer department properly terminated for mailing racist materials from home on his own time. If the police department treats a segment of the population of any race, religion, gender, national origin, or sexual preference, etc., with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. (Id. at pp ) The opinion did not address the officer s bias as a witness, but instead relied on minority members being less likely to report crimes, to offer testimony as witnesses, or to rely on the police for their protection, and the impact on the department's ability to recruit and train personnel minority members. d. See Locurto v. Giuliani (2d Cir. 2006) 447 F.3d 159, upholding the firing of a police officer and firefighters for a racist parade float, and quoting the Mayor as stating, police officers [and] firefighters carry a very heavy responsibility... to treat people fairly. That responsibility cannot be placed in doubt. 14. Prior false report of crime by witness. (People v. Hayes (1992) 3 Cal.App.4th 1238, 1245; People v. Gutierrez (2013) 214 Cal.App.4th 343.) 15. Language in some cases suggests that habit or custom evidence (Evid. Code 1105) might come within Brady. In Sons v. Superior Court (2004) 125 Cal.App.4th 110, defendant was convicted of murder of CHP officer. Issue was self-defense. Prosecution stipulated to Brady error in failing to disclose that officer had been disciplined for developing an unacceptable pattern of drawing his weapon on civilians in inappropriate circumstances. See Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 59 (allegation that incidents in personnel file demonstrated habit and custom of dishonesty met the relatively low threshold showing of good cause to authorize in camera examination of personnel files in hybrid Pitchess/Brady motion). 16. Prosecution must disclose errors in current case so defense can challenge thoroughness and good faith of investigation. (United States v. Howell (9th Cir. 2000) 231 F.3d 615, 625; U.S. v. Aguilar (C.D. Cal. 2011) 831 F. Supp.2d

18 [failure to disclose grand jury transcript showing that at the investigative stage the Government failed to consider a number of factors pointing to innocence].) a. Inaccuracies by officer in prior cases probably NOT Brady, unless perhaps a pattern is shown. An unpublished opinion of the Court of Appeal upheld the firing of a sheriff s deputy based on a large number of inaccuracies, misrepresentations and misinterpretations in his reports demonstrating a pattern of misrepresenting or mischaracterizing witness statements.... At best, this pattern is the result of gross negligence and/or incompetence. There had been numerous errors and misstatements in his investigative reports in at least six cases. If appellant were called as a witness in a future prosecution, the numerous inaccuracies in his reports would be admissible impeachment evidence.... The prosecution would be required to disclose this impeachment evidence to the defendant. (Adlof v. Civil Service Commission (B156159, Feb. 26, 2003) 2003 Cal.App.Unpub.LEXIS 1809, 2003 WL (not citeable).) 17. Court is more likely to find the withholding of impeachment material prejudicial where the undisclosed materials would have provided the defense with a new and different form of impeachment. (Silva v. Brown (9th Cir. 2005) 416 F.3d 980, 989.) 18. The weight of authority is that impeachment evidence need not be disclosed regarding a witness who will not be called to testify. (United States v. Mullins (6th Cir. 1994) 22 F.3d 1365, 1372; Adams v. State (2005) 165 Md.App. 352, 381, 885 A.2d 833, 850; see United States v. Stinson (9th Cir. 2011) 647 F.3d 1196, 1208; see People v. Cook (2006) 39 Cal.4th 566, [late discovery of impeaching statements by potential witnesses did not prejudice defense since those witnesses did not testify].) But see United States v. Jackson (2nd Cir. 2003) 345 F.3d 59, 71 & fn. 6, which declines to draw a blanket distinction, stating that impeachment may be material as to hearsay statements that are admitted, but stating that if the undisclosed information is relevant only to the credibility of a nontestifying witness or declarant, that will bear upon the materiality of the information. The issue is not resolved in the Ninth Circuit. (United States v. Flores (N.D. Cal., Mar. 24, 2011, CR WHA) 2011 WL ) D. Evidence that reduces degree of culpability or may mitigate sentence. (Brady v. Maryland (1963) 373 U.S. 83, 87.) 1. In a capital case, the prosecution must disclose evidence that mitigates the impact of the prosecution evidence regarding the charged crimes or regarding other crimes the prosecution proves at the penalty phase or weakens the strength of other aggravating evidence the prosecution presents. No Brady duty as to evidence regarding the defendant personally that he may present at the penalty phase, but may be discoverable if exculpatory nature obvious or apparent, or if 18