California Makes Withholding Evidence of Innocence a Felony

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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CaliforniaWhen prosecutors have evidence that tends to prove a defendant’s innocence, the Constitution requires them to give that evidence to the defense. Honest prosecutors do just that. Unfortunately, some prosecutors place winning ahead of justice. When prosecutors withhold evidence that could help innocent defendants avoid a conviction, nobody wins.

The State of California has taken an important step to curb the unconstitutional behavior of overzealous prosecutors. A new California law makes it a felony to alter or hide exculpatory evidence. Faced with a possible three-year prison sentence, prosecutors have a strong incentive to obey the Constitution — unless they feel confident that no prosecutor will prosecute a prosecutor for violating the law.

Exculpatory Evidence

Prosecutors must disclose exculpatory evidence that is “material to guilt or punishment.” Exculpatory evidence is material if it tends to prove innocence or cast doubt on guilt, or if it impeaches the credibility of a prosecution witness.

In 1963, the Supreme Court held that the deliberate suppression of exculpatory evidence violates the defendant’s right to due process of law. In that case, a defendant was convicted of murder after a prosecutor failed to disclose that another person had confessed to killing the victim. The Court imposed a duty on prosecutors to obtain exculpatory evidence from police investigators, so prosecutors cannot avoid their constitutional mandate by claiming that the police conveniently failed to tell them about evidence that weakened the prosecution’s case.

Most prosecutors are ethical, honest lawyers who understand and abide by their constitutional obligations. Unfortunately, some prosecutors, in their zeal to win, decide that evidence of innocence is not exculpatory because nobody would believe it, even though it is the task of the jury, not the prosecutor, to decide whether evidence is worthy of belief. When prosecutors deliberately conceal evidence that they should know to be exculpatory, innocent people are convicted.

Wrongful Convictions

In 1999, the Chicago Tribune published How Prosecutors Sacrifice Justice to Win, a five-part series that examined 381 homicide convictions that were overturned due to prosecutorial misconduct. A substantial percentage of the convictions involved a prosecutor’s decision to withhold exculpatory evidence.

One year earlier, similar problems were reported in Win at All Costs, a series that appeared in the Pittsburgh Post-Gazette. That investigation found that prosecutorial misconduct, including the withholding of evidence, tainted hundreds of federal prosecutions.

While acknowledging that most prosecutors behave ethically, a study by the Northern California Innocence Project identified violations of the obligation to disclose exculpatory evidence as “among the most pervasive forms of prosecutorial misconduct.” The report notes that a prosecutor’s belief that a defendant is guilty “can create a distorting prism through which they tend to view the evidence inaccurately as a red herring or irrelevant.” The violations are difficult to uncover since a defendant may never learn that evidence of innocence existed but was never disclosed.

Will California’s Law Make a Difference?

The California law follows on the heels of criticism leveled against the office of Orange County District Attorney Tony Rackauckas. A judge removed Rackauckas’ office from the high-profile prosecution of alleged mass murderer Scott Dekraai after finding that prosecutors had repeatedly violated Dekraai’s rights by failing to turn over evidence about jailhouse informants. The judge accused Rackauckas of putting “loyalty to his law enforcement partners” ahead of “his other constitutional and statutory obligations.”

Whether the new law will motivate California prosecutors to obey the Constitution, when their oath of office was not enough to do so, is uncertain. Withholding exculpatory evidence was a misdemeanor in California before the legislature increased the potential penalties. If misdemeanor penalties did not deter unethical conduct, is the threat of a felony prosecution likely to do so?

As The Northern California Innocence Project found:

The Misconduct Study shows that those empowered to address the problem — California state and federal courts, prosecutors and the California State Bar — repeatedly fail to take meaningful action.  Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.

Enacting a new law is unlikely to remedy the problem if the law is never enforced. As journalist Maurice Possley observed, “Prosecutors aren’t held accountable. Absent that, why should they change their habits?”

A Better Alternative

A better approach might be to level the playing field by requiring prosecutors to give all of their evidence to the defense, whether or not they regard it as exculpatory. An “open file” discovery law would require prosecutors to give defense attorneys nearly everything they have.

Open file discovery emulates the discovery rules in civil cases, which are designed to allow both sides to learn everything that the other side knows about the case before it goes to trial. Ideally, there are no courtroom surprises in civil cases. It seems fair that defendants in criminal cases, where lives and liberty are at stake, should have just as much right to discovery as parties in civil lawsuits.

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