What is a motion to compel discovery?

A motion to compel discovery in a criminal case is a motion to force the prosecution to turn over evidence in its possession or control.

  1. The California Discovery Statutes Require The Prosecuting Attorney To Disclose Materials and Information To the Defense At Least 30 Days Prior To Trial

The California Penal Code Chapter 10 Discovery Statutes are clear and unambiguous:

“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: …

(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.”

(Pen. Code, § 1054.1, subd. (f).)

“The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred.” (Pen. Code, § 1054.7.)

“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.”

(Pen. Code, § 1054.5, subd. (a) [bold added].)

“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.”

(Pen. Code, § 1054.5, subd. (b) [bold added].)

“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.” (Pen. Code, § 1054.5, subd. (c) [bold added].)

“The contents of a police evidence locker are the responsibility of the district attorney, not property in possession of some third party.” (Walters v. Superior Court (2000) 80 Cal.App.4th 1074, 1077 [95 Cal.Rptr.2d 880].)

2. The Prosecution Has A Constitutional Obligation To Disclose Exculpatory Evidence To the Defense

The California Supreme Court recently construed a prosecutor’s discovery duties as follows:

“Of course defendants are independently entitled to general criminal discovery, including exculpatory evidence, from the prosecution under Penal Code section 1054.1. Moreover, under authority such as Brady v. Maryland (1963) 373 U.S. 83 [10 L. Ed. 2d 215, 83 S. Ct. 1194], People v. Salazar (2005) 35 Cal.4th 1031, 1042–1043 [29 Cal. Rptr. 3d 16, 112 P.3d 14], and cases cited, and Barnett v. Superior Court (2010) 50 Cal.4th 890, 900–901 [114 Cal. Rptr. 3d 576, 237 P.3d 980], the prosecution is obligated to share with the defense any material exculpatory evidence in its possession—including that which is potentially exculpatory. (See also Rules Prof. Conduct, rule 5-110(D), as amended Nov. 2, 2017 [requiring ‘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, mitigate the offense, or mitigate the sentence’] and corresponding discussion [observing that ‘the disclosure obligations in paragraph (D) are not limited to evidence or information that is material as defined by Brady v. Maryland … and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely’].)”

(Facebook, Inc. v. Superior Court (2018) 4 Cal.5th 1245, 1255, fn. 8 [233 Cal.Rptr.3d 77, 417 P.3d 725] [bold added; italics in original].)

California Rules of Professional Conduct, Rule 5-110 entitled “Special Responsibilities of a Prosecutor” as approved by the Supreme Court of California effective November 2, 2017, provides, in part:

“The prosecutor in a criminal case shall: … (D) 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, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal…”

(Rules of Prof. Cond., Rules 5-110, subd. (D).)

The prosecution in any criminal case has a constitutional obligation to disclose exculpatory evidence to the defendant. (Brady v. Maryland (1963) 373 U.S. 83, 87.) This constitutional duty exists even if no request is made. (United States v. Agurs (1976) 427 U.S. 97, 106; In re Ferguson (1971) 5 Cal.3d 525, 532.) The prosecutor has a duty to learn or any favorable evidence known to others acting on the government’s behalf in this case, including the police. (Kyles v. Whitley (1995) 514 U.S. 419, 437; In re Brown (1998) 17 Cal.4th 873, 879, n. 3.) The prosecutor’s duty arises out of the defendant’s right to due process, which is independent from the California discovery statutes. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.)

Evidence is “favorable” to the defendant if it either helps the defendant or hurts the prosecution’s case. (In re Miranda (2008) 43 Cal.4th 541, 575; In re Sassounian (1995) 9 Cal.4th 535, 544.) The California courts and the United States Supreme Court have clearly held evidence that challenges the credibility of a prosecution witness must be disclosed to the defense. (United States v. Bagley (1985) 473 U.S. 667, 676; People v. Pensinger (1991) 52 Cal.3d 1210, 1272.) However, exculpatory evidence is not limited to impeachment but also includes evidence which supports the testimony of a defense witness and evidence which mitigates the punishment of the defendant. (Pipes & Gagen Cal. Crim. Discovery (1995), Section 1:5, pp. 5-6.) Exculpatory evidence also includes evidence that tends to discredit the quality of the investigation by law enforcement agencies or the decision to charge the defendant. (Kyles v. Whitley, supra, 514 U.S. at p. 446.)