California criminal discovery procedure is the topic of this
blog post. The statutes governing discovery
in criminal cases in California are found in Penal Code sections 1054 through
1054.10. These statutes authorize a defendant in a criminal case in California to
request specified materials and information from the prosecuting attorney as
long as they comply with their obligation to furnish specified materials and
information to the prosecuting attorney.
Section 1054.5(b) of the Penal Code authorizes any defendant
in a criminal case in California to request all materials and information
specified in Penal Code section 1054.1 from the prosecuting attorney who then
has 15 days to furnish the requested items. If the prosecution does not comply the
defendant may request a court order for the prosecution to produce the desired
materials and information and the court has the discretion to order immediate
disclosure, commence contempt proceedings, continue the trial and award other
specified relief.
Penal Code § 1054.5 states that,
“(a) No order requiring discovery shall be made in criminal
cases except as provided in this chapter. This chapter shall be the only means
by which the defendant may compel the disclosure or production of information
from prosecuting attorneys, law enforcement agencies which investigated or
prepared the case against the defendant, or any other persons or agencies which
the prosecuting attorney or investigating agency may have employed to assist
them in performing their duties.
(b) Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an informal request
of opposing counsel for the desired materials and information. If within 15
days the opposing counsel fails to provide the materials and information
requested, the party may seek a court order. Upon a showing that a party has
not complied with Section 1054.1 or 1054.3 and upon a showing that the moving
party complied with the informal discovery procedure provided in this
subdivision, a court may make any order necessary to enforce the provisions of
this chapter, including, but not limited to, immediate disclosure, contempt
proceedings, delaying or prohibiting the testimony of a witness or the
presentation of real evidence, continuance of the matter, or any other lawful
order. Further, the court may advise the jury of any failure or refusal to
disclose and of any untimely disclosure.
(c) The court may prohibit the testimony of a witness
pursuant to subdivision (b) only if all other sanctions have been exhausted.
The court shall not dismiss a charge pursuant to subdivision (b) unless
required to do so by the Constitution of the United States.”
Penal Code § 1054.1 states that,
“The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information, if it is in
the possession of the prosecuting attorney or if the prosecuting attorney knows
it to be in the possession of the investigating agencies:
(a) The names and addresses of persons the prosecutor
intends to call as witnesses at trial.
(b) Statements of all defendants.
(c) All relevant real evidence seized or obtained as a part
of the investigation of the offenses charged.
(d) The existence of a felony conviction of any material
witness whose credibility is likely to be critical to the outcome of the trial.
(e) Any exculpatory evidence.
(f) Relevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor intends to call at
the trial, including any 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 the trial.”
However before serving a request for discovery in a criminal
case the defendant or their attorney should be sure to comply with the
provisions of Penal Code § 1054.3 that require disclosure of specified
materials and information.
Penal Code § 1054.3 states in pertinent part that,
“(a) The defendant and his or her attorney shall disclose to
the prosecuting attorney:
(1) 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, and including the results of physical or
mental examinations, scientific tests, experiments, or comparisons which the
defendant intends to offer in evidence at the trial.
(2) Any real evidence which the defendant intends to offer
in evidence at the trial.
(b) (1) Unless otherwise specifically addressed by an
existing provision of law, whenever a defendant in a criminal action or a minor
in a juvenile proceeding brought pursuant to a petition alleging the juvenile
to be within Section 602 of the Welfare and Institutions Code places in issue
his or her mental state at any phase of the criminal action or juvenile
proceeding through the proposed testimony of any mental health expert, upon
timely request by the prosecution, the court may order that the defendant or
juvenile submit to examination by a prosecution-retained mental health expert.”
Serving a request for discovery under Penal Code § 1054.5
should be done at the same time that the defendant or their attorney provides
the prosecuting attorney with the specified materials and information specified
in Penal Code § 1054.3.
Attorneys or parties in California that would like to view
or download a sample request for discovery under Penal Code section 1054.5(b)
created by the author can use the link shown below.
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The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
