Compelling Discovery Before the Prelim in Riverside County

Posted By Bill Nimmo || 18-Jun-2015

Riverside County can be a difficult place to be charged with a crime and get adequate justice. A recent article in the Los Angeles Daily Journal reported that a grand jury faulted the Riverside County District Attorney for causing major backlogs in the courts. We submit that these problems have caused a real problem with adequate justice for anyone charged with a crime. Riverside County causes major headaches for criminal defense lawyers and major injustice and costs for those accused. One of the problems is getting adequate discovery before the preliminary hearing so that you can properly prepare your case. A standard refrain from the prosecution is that you are not entitled to discovery prior to the preliminary hearing. This results in a culture of non-disclosure that stretches from the district attorney’s office to the law enforcement agencies.

You are entitled to discovery before the preliminary hearing. If a DA resists your request and the information is important you should have your lawyer bring a motion. The following are actual excerpts from a motion brought in Riverside County to get medical records of an alleged victim that the DA’s office refused to provide. The motion was successful. It was filed, a hearing was set, and the DA decided to provide the information. These are parts of the Points and Authorities only.

THE PROSECUTION IS REQUIRED TO DISCLOSE INFORMATION TO THE DEFENDANT IN POSSESSION OF THE PROSECUTING ATTORNEY OR IF THE PROSECUTING ATTORNEY KNOWS IT TO BE IN THE POSSESSION OF THE INVESTIGATIVE AGENCIES

Under the reciprocal discovery scheme of Proposition 115, the prosecuting attorney “shall disclose to the defendant or his attorneys…material and information, if it is in possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” (Pen. Code section 1054.1) Any favorable evidence known to the other investigative agencies acting on the government’s behalf is imputed to the prosecution. (In re Brown (1998) 17 Cal.4th 873, 879, [72 Cal.Rptr.2d 698].) “The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation. Thus, the prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government’s behalf that were gathered in connection with the investigation.” (In re Steele (2004) 32 Cal.4th 682, 697, [10 cal.rptr.3d 536].)

DEFENSE IS ENTITLED TO STATEMENTS AND REPORTS THAT ARE RELEVANT AND FAVORABLE TO THE DEFENDANT

Under the Proposition 115 reciprocal discovery scheme the prosecutor is required to disclose to the defense any relevant 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 trial. The Federal Constitution requires the disclosure of statements or reports of experts the prosecutor does not intent to call at trial, if those statements or reports provide substantial material evidence favorable to the defendant. (In re Brown (1998) 17 Cal.4th 873 [72 Cal.Rptr.2d 698].)

The prosecutor is also required to disclose any evidence that would tend to exonerate the defendant, minimize probable sentence, or that constitutes information the defense might use to impeach or contradict prosecution witnesses. (People v. Brady (1963) 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215].) Brady discovery includes information that relates to the existence of evidence tending to suggest that someone other than the defendant committed the crime charged against the defendant.

“A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigative agency to assist the prosecution or the investigative agency in its work.” (Barnett v. Superior Court (Butte) (2006) 146 Cal.App.4th 344, 365, [54 Cal.Rptr.3d 283, 299].)

DEFENSE COUNSEL IS ENTITLED TO THE REQUESTED MATERIAL PRIOR TO THE PRELIMINARY HEARING
Defense can bring a motion to compel discovery before the preliminary hearing of materials and information that go to an affirmative defense, evidence that might negate an element of the crime, and evidence relevant to the impeachment of a prosecution witness. Proposition 115 codified the defendant’s preexisting right to present such evidence at the preliminary hearing and the defendant has a substantial right to obtain evidence on these issues through discovery before the preliminary hearing (Holman v. Superior Court (1981) 29 Cal.App.3d 1302, 1310, [246 Cal.Rptr. 775].) defense might use to impeach or contradict a witness for the People falls under “Brady” discovery. The exam performed on Doe by the Children’s Justice Center may contain such information. If Doe testifies at the preliminary hearing to certain facts regarding any alleged sexual abuse, any alleged injuries, or any fact related to the examination itself or results there from, defense will seek to impeach her using the medical report as a basis. Also, it is necessary the defense have access to this report prior to the preliminary hearing as it is important information to gauge in light of the evidence. The results of the medial examination will better guide the defense in determining possible defenses and case strategies.