A Tale of Two Rules for California Prosecutors

In the first days of fall, the Golden State has set forth two new, important rules to punish prosecutors who unreasonably, recklessly, or intentionally withhold evidence from the accused. One is a criminal statute that goes into effect next year. The other is an ethics rule that goes into effect if and when the state’s supreme court approves it. Both aim to create real consequences for prosecutors who wreck lives by committing Brady violations.

First, on September 30, Governor Brown signed California Assembly Bill 1909 into law. The new law makes it a felony for prosecutors to not disclose evidence or information that’s material to the outcome of a case if they do it intentionally and in bad faith. It used to be a misdemeanor at most. The new law is effective January 1, 2017. Here is the actual text:

A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any [evidence or information], knowing that it is relevant and material to the outcome of the case, with the specific intent that [it] be concealed or destroyed, or fraudulently represented as the original evidence … is guilty of a felony.

The crime is punishable by imprisonment for 16 months, two years, or three years.

Next, on October 1, the State Bar of California, which regulates the state’s lawyers, adopted proposed Rule of Professional Conduct 5-110 by an 11-1 vote. The new ethics rule would require prosecutors to disclose all evidence that they know, or reasonably should know, would be favorable to the accused. Here again is the actual text:

The prosecutor in a criminal case shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor that the prosecutor knows or reasonably should know mitigates the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

The proposed rule now goes to the California Supreme Court for approval.

Some say it’s the best of times; some say it’s the worst of times.

Either way, let’s make it better.