California Governor Jerry Brown signed a landmark piece of legislation into law that makes it illegal for prosecutors to intentionally or in bad faith withhold, alter or destroy any evidence that is favorable to the defendant in a criminal case. Violation of the law can be punished as a felony punishable by up to 3 years in prison.
This law is long overdue. Even though for decades a United States Supreme Court decision demanded that prosecutors disclose exculpatory evidence to criminal defendants, Brady v. Maryland, 373 U.S. 83 (1963), the consequences for failing to turn it over never rose to the level of criminal penalties. In the wake of a massive scandal in Orange County where prosecutors failed to disclose critical evidence regarding their use of jailhouse informants, the California legislature took action and passed this law.
Codified under California Penal Code Section 141(c), the new law holds:
A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.
The key piece of the language in this law is “intentionally and in bad faith.” It needs to be way more than a mere oversight. A prosecutor has to know that evidence would be exculpatory (would help the defendant’s case) and truly intend to conceal or destroy the evidence. It’s a high bar to prove beyond a reasonable doubt.
The other issue is the question of who exactly will prosecute these cases? It’s asking a lot for a prosecutor’s office to prosecute one of their own, especially in smaller counties or cities. Well, even in big cities too. Will these cases get sent out to a special independent prosecutor or to the Attorney General’s office? We will have to wait and see.