When, If At All, Disclosure Of Impeachment Evidence Of Prosecution’s Witnesses Is Required
On June 5, 1990, a referendum entitled the “Crime Victim’s Justice Reform Act”, bequeathed the numeric appellation 115, was placed before the voters of this state. On June 6, 1990, the outcome of the election could have been determined simply by watching the members of the bar as they meandered through the courthouse. In the early morning hours prior to the first calendar call, groups of defense attorneys, clustered in twos and three along the corridors, could be seen talking amongst themselves, shaking their heads in apparent disbelief that such a disturbing fate could have befallen their practice and, more importantly, their clients; the long faces on all evoked the uncertainty which the future would hold.
A shift in focus to the portals of the district attorney’s office reveals a strikingly different demeanor. As the locked, electronically coded door to the prosecutor’s office opens, folks carrying arm-loads of files exit at a fast clip. With the exception of the “one’s with two” [one with two-toned shoes and another with two watches], the manner in which each dressed was similar; that is to say, conservatively. As each ambles down the corridor leading to their assigned department, the thought that the “pendulum” has finally swung their way. The electorate had, in one fell swoop, removed a handful of impediments which hindered justice from being done.
As the day wore on, the buzz around the courthouse was the then sitting judge in Division 9 who–in the course of conducting a preliminary hearing and over the objection of the defense attorney–allowed hearsay statements of the victim and other investigating officers to come into evidence for the “truth of the matter asserted”. Such evidence, only the day before, would have been inadmissible in the prosecution’s quest to obtain a bind-over. With this ruling, the defense bar was dealt yet another blow; the magistrate’s ruling, within hours of the announcement of the election results–at a time when the corpus juris was still warm and fresh in the minds of many–seemed, on a visceral level, brazen and irreverent.
Looking back over the past seven years since Prop. 115 was enacted, few would argue that the referendum dramatically changed the complexion of the practice of criminal law in a number of areas including, but certainly not limited to, discovery. Specifically, as applied to discovery, Prop. 115 mandated that the defense shall disclose to the prosecuting attorney:
“The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case . . . which the defendant intends to offer in evidence at the trial.” [Penal Code § 1054.3, subdivision (a); emphasis added.]
The fair import of the aforementioned statute–and the decisional law which has emanated therefrom–is that if the defense intends to call a witness at the time of trial, the name and address of the person(s) whom they intend to call must be disclosed to the prosecution if such information is known or is reasonably accessible. In re Littlefield (1993) 5 Cal.4th 122, ____; Sandeffer v. Superior Court, (1993) ____ Cal.App.4th ____, ____.
The more important question is when, if at all, is the defense required to disclose statements made by witnesses which the prosecution calls to testify.
In the recent decision of the Second District Court of Appeals in Hubbard v. Superior Court, (1997) ____ Cal.App.4th ____, 97 DAR 3607 (3/19/97) [Review granted, 6/18/97], the court addressed the issue of whether the prosecutor is entitled to discover notes prepared by a defense investigator that relate to an interview of a prosecution witness. In Hubbard, during the course of trial, the prosecution–his interest peaked by the exactitude of the defense cross-examination and impeachment–moved for production of all statements obtained by the defense relating to any prosecution witness; defense counsel objected relying on footnote 14 of the California Supreme Court opinion in Izazaga v. Superior Court, (1991) 54 Cal.3d 356, 377. The trial court, in granting the prosecution’s request, reasoned:
“[o]nce we get to trial and . . . [the statements are used as a basis for cross-examination], we are outside the discovery statute and you need to turn it over if you use it in any way in cross . . . . ” Hubbard, (supra) at p. ____.
Thereafter, Hubbard’s trial counsel sought writ review. The Court of Appeals issued a temporary stay on discovery. Subsequently, the court issued an alternative writ of mandate leaving the stay on discovery firmly in place.
At the outset, the Hubbard court noted that, contrary to the trial court’s belief, the “prosecution is never outside of the discovery statute. If the discovery statute does not provide for prosecutorial discovery, it is not entitled thereto before, during, or after trial.”1 Ibid at p. ____. The court went onto to cite Chief Justice Lucas’ explanation of the operation of the discovery scheme as revealed in footnote 14 of the Izazaga (supra) opinion.
“On demand the defense must disclose only the witnesses (and their statements) it intends to call in refutation of the prosecution’s case, rather than all the evidence developed by the defense in refutation. (Citations omitted.) Thus, the defense is not required to disclose any statements it obtained from prosecution witnesses that it may use to refute the prosecution’s case during cross-examination. Were this otherwise, we would be presented with a significant issue of reciprocity” Hubbard, (supra) at p. ____. [Emphasis in original.]
The prosecution, rather improvidently, asserted on appeal that footnote 14 in Lucas’ Izazaga opinion was an incorrect statement of law and/or dicta and, therefore, is not binding on lower courts; the reaction of the appellate court to that argument was predictable. As the prosecution’s aforementioned contentions unfold in the Hubbard opinion, the grinding sound of knives being honed to a razor sharp edge begins to resonates in the mind of the reader as it is apparent that the Hubbard court, in the following paragraphs, is intent on eviscerating the propagator of such heresy.
The Hubbard court first explains that footnote 14, in the scheme of the Izazaga opinion, cannot be construed as being unnecessary. The court then notes that even if the aforementioned is dicta, it is Supreme Court dicta and, and as such, should be followed. The language of footnote 14, the Hubbard court opined was carefully drafted. It was not inadvertent, ill-considered or a matter to be lightly disregarded.
Citing Penal Code § 1054.3a), the court echoed Division One of the Fourth District in Sandeffer v. Superior Court, (supra), in explaining that the duty to disclose witness information and associated reports from that witness attaches at the time defense counsel forms the intent to call the witness to testify. “There is no rule of law that would require the defense to disclose evidence gathered by an investigator who may tentatively be called by the defense for impeachment purposes.” [Emphasis added.] Hubbard at p. ____. Moreover, even where it appears to the court that defense counsel is unreasonably delaying publication of his/her decision to call a witness, it is not within the province of the trial judge to step into his/her shoes. Sandeffer v. Superior Court, (supra), at p. ____
The corollary to the rule explained in Hubbard is that the prosecutor is entitled to discover notes prepared by the defense investigator if, and only if, defense counsel intends to call the investigator to the stand to impeach a prosecution witness. As a practical matter, since it is the fervent hope of all that a witness who takes the stand will testify truthfully, the intent to call your investigator to impeach a prosecution witness would only arise after s/he has demonstrated less than a full investment in the truth telling process.
- In contrast to the prosecution’s ability to compel defense discovery, the prosecutor’s duties of disclosure under the due process clause are wholly independent of any statutory scheme of reciprocal discovery. The due process requirements are self-executing and need no statutory support to be effective. Where, as here, a statutory discovery scheme exists, the due process requirements operate outside such a scheme. Hubbard, (supra) at p. ____; Brady v. Maryland, (1963) 373 U.S. 83, 8710 L.Ed.2d 213, 218. See also, People v. Albritton, (1990) 225 Cal.App.3d 961, 963.