California Criminal Trial Manual

Prosecution Duty to Disclose

Statutory Duty to Disclose (PC 1054.1)

• What Must Be Disclosed
  • Names & Addresses of Prospective Witnesses.
    • Prospective Witness: witness reasonably intends to call at trial. (PC 1054.1(a).)
    • Law enforcement may use business address while testifying. (PC 1328.5.)
  • Relevant prospective witness statements.
    • Written, recorded, and raw notes memorializing. (PC 1054.1(f).)
    • If relevant, the entire statement must be disclosed—not just portions of it. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 380 n.17.)
  • Defendant Statements. (PC 1054.1(b).)
  • Relevant real evidence obtained as part of investigation. (PC 1054.1(c).)
  • Prior felony convictions & crimes of moral turpitude of witnesses. (PC 1054.1(d), (e).)
  • Exculpatory evidence. (PC 1054.1(e).)
  • EC 1108 & 1109 Summary of Substance of Evidence. (EC 1108, 1109, PC 1054.7.)
  • Writings shown to a witness (before showing to witness). EC 768(b)
  • Timing.
    • 30-Day Rule. Prosecution must disclose at least 30 days prior to trial, unless court order to the contrary. (Pen. Code § 1054.7.)
    • Exception. If evidence comes into possession of prosecution within 30 days of trial, disclosure shall be made immediately. (Pen. Code § 1054.7.)
      • Immediately usually means within a day of when the information is acquired
        • People v. Verdugo (2010) 50 Cal.4th 263 [same day; timely disclosure]
        • People v. Rutter (2006) 143 Cal.App.4th 1349, 1354 [same day; timely]
        • People v. DePriest (2007) 42 Cal.4th 1, 37-38 [next day; timely]
      • Disclosure is not immediately made if it was made as witness takes the stand. (People v. Hughes (2020) 50 Cal.App.5th 257, 280.)
    • Exception. If evidence becomes subject to disclosure by virtue of events occurring during the trial, disclosure shall be made immediately.
      • When court reverses earlier ruling and permits particular witness to testify. (People v. Jordan (2003) 108 Cal.App.4th 349, 360-361.)
      • When a witness is located. (People v. Walton (1996) 42 Cal.App.4th 1004, 1017, overruled on other grounds, People v. Cromer (2001) 24 Cal.4th 889.)
      • When D calls unexpected witness thereby prompting prosecution to do the same in rebuttal. (People v. Hammond (1994) 22 Cal.App.4th 1611, 1623-1624.)
    • Good Cause Exception. 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. (PC 1054.7.)
      • In Camera Hearing. Upon the request of any party, the court may permit a showing of good cause for the denial or regulation of disclosures, or any portion of that showing, to be made in camera. (PC 1054.7.)

Constitutional Duty to Disclose

• Brady imposes upon prosecutors a duty to disclose material, favorable evidence to the D. (People v. Williams (2013) 58 Cal.4th 197, 255-256; Skinner v. Switzer (2011) 562 U.S. 521, 536-537; Brady v. Maryland (1963) 373 U.S. 83, 87.)
• Materiality
  • Evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” (Cone v. Bell (2009) 556 U.S. 449, 469-470.)
  • To be material, a particular item of favorable evidence must “put the whole case in such a different light as to undermine confidence in the verdict.” (Kyles v. Whitley (1995) 514 U.S. 419, 435.)
  • Reasonable probability is less then a preponderance of the evidence. (Kyles v. Whitley (1995) 514 U.S. 419, 434.)
• Favorable Evidence
  • “Evidence is favorable if it hurts the prosecution or helps the defense.” (People v. Earp (1999) 20 Cal.4th 826, 866.)
  • Two types: exculpatory evidence & impeachment evidence
  • Examples of what is NOT favorable evidence:
    • A person’s speculation or “internal assessment” of the pending criminal case. (United States v. Agurs (1976) 427 U.S. 97, 109 n.16, overruled on other grounds, United States v. Bagley (1985) 473 U.S. 667, 673-83.)
    • Information not yet in existence. (People v. Mena (2012) 54 Cal.4th 146, 160.)
• Impeachment Evidence
  • Impeachment evidence is “evidence bearing on the credibility of a … prosecution witness.” (People v. Rutherford (1975) 14 Cal.3d 399, 408, overruled on other grounds, In re Sassounian (1995) 9 Cal.4th 535, 545 n.6.)
  • Does not include evidence that impeaches defense witness. (People v. Moore (1987) 189 Cal.App.3d 1537, 1540-1541.)
  • Examples:
    • Bias toward prosecution or against defense
      • W is paid informant. (People v. Roberts (1992) 2 Cal.4th 271.)
    • Immigration status. Courts are SPLIT
      • People v. Viniegra (1982) 130 Cal.App.3d 577, 580-581 [permissible impeachment evidence].)
      • Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460-461, overruled on other grounds, People v. Freeman (2010) 47 Cal.4th 993, 1006 n.4 [impermissible impeachment].)
    • Inconsistent statements of prosecution witnesses
      • An earlier incident report written by an officer is not impeachment evidence, even if it involves the same defendant, if the prior incident is unrelated to the charged offense. (People v. Jimenez (2019) 32 Cal.App.5th 409, 419-420.)
    • Witness’ criminal and other misconduct
      • Prior felony convictions. (People v. Little (1997) 59 Cal.App.4th 426, 434.)
      • Prior misdemeanor convictions involving moral turpitude. (People v. Santos (1994) 30 Cal.App.4th 169, 179.)
    • Pending charges
      • Impeachment b/c witness may alter his testimony to curry favor with the prosecution vis-à-vis those charges. (People v. Letner & Tobin (2010) 50 Cal.4th 99, 176-177.)
    • Prior misconduct involving moral turpitude
      • Even if not tied to a specific criminal offense. (People v. Lepolo (1997) 55 Cal.App.4th 85, 88-92.)
• Applies to Prosecution Team
  • Even if prosecutor unaware of evidence. (Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870.)
  • Prosecutors are deemed constructively aware of Brady material known to anyone on the prosecution team and deemed to be in “constructive possession” of that information. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 903.)
• Due Diligence Self-Help Exception. Brady duties do not apply when
  • (1) Defense has access to that evidence; and
  • (2) Defense, in the exercise of due diligence, could have been expected to seek out that evidence. (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 715-717.)
• Timing.
  • Brady material must be disclosed prior to preliminary hearing. (People v. Gutierrez (2013) 214 Cal.App.4th 343.)
• Delayed Disclosure vs. Total Non-Disclosure. The applicable test is whether defense counsel was prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant’s case. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 467.)

Defense Duty to Disclose

• Section 1054.3(a)(1): requires a criminal defendant to provide the prosecution with relevant written or recorded statements only of those persons “he or she intends to call as witnesses at trial…”
  • This requirement applies to any witness the defense “reasonably anticipates it is likely to call.” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375-376 & fn. 11.)
  • Where counsel represented he had not yet decided whether to call witness, trial court exceeded its authority in ordering disclosures about that witness. (Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 678.)
• Nature of info defense must disclose:
  • PC 1054.3(a)(1): names & addresses + relevant written/recorded statements of those persons which defendant intends to offer into evidence at trial
  • PC 1054.3(a)(2): any real evidence which defendant intends to offer into evidence at trial
• Case Law
  • Expert notes regarding cause of automobile accident. (People v. Lamb (2006) 136 Cal.App.4th 575, 580 [even where no written report is prepared].)

Discovery Violations

• Failure to comply with discovery statutes. Trial court can:
  • (1) Order immediate disclosure
  • (2) Contempt proceedings
  • (3) Delay/prohibit the testimony of a witness or the presentation of real evidence
  • (4) Continue the matter
  • (5) Any other lawful order.
  • (6) Prohibit testimony of the witness
    • Only if other sanctions have been exhausted. (PC 1054.5(c).)
• Dismissing a case. Trial court authorized only where there was a Brady violation. (PC 1054.5(c); People v. Ashraf (2007) 151 Cal.App.4th 1205, 1214.)

Misc. Discovery Issues

• Attorney Work Product. Attorney work product is protected by statute. (Code Civ. Proc., § 2018.010 et seq.)
  • Absolute Protection if item covered by PC § 2018.030(a): “A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.”
  • Qualified Protection if item falls under PC § 2018.030(b): “The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.”
    • Qualified privilege applies to recorded witness statements. (Coito v. Superior Court (2012) 54 Cal.4th 480, 496.)
    • Identity of non-testifying expert may trigger qualified privilege. (Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 472.)
  • Attorney seeking to invoke work product protection has the burden to show that materials are either absolute or qualified work product. (So. California Edison Co. vs. Superior Court (2024) 102 Cal.App.5th 573.)
• Where qualified privilege applies, party seeking disclosure has burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in injustice. (Coito v. Superior Court (2012) 54 Cal.4th 480, 496.)