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The Undiscovered Discovery Problem: Proposition 9 And The Need For Ballot Prop Reform

(A great review of a not-so-great proposition. – promoted by Brian Leubitz)

In 2005, the non-partisan Public Policy Institute of California conducted a poll which found that three out of four California voters “favor a system of review and revision of initiatives to avoid legal issues and drafting errors” and 84% of voters think that the wording of ballot initiatives “is often too complex too understand what would happen if an initiative passed.”

There is no better illustration of the “legal issues and drafting errors” and language “too complex too understand what would happen if an initiative passed” than the recently passed Proposition 9, which adds provisions to the California Constitution which grant “due process rights” to crime victims.

Prop. 9 passed with 60% of the vote despite warnings from the L.A. County District Attorney, at least 30 newspaper editorial boards, and a bi-partisan coalition of public interest groups that much of Prop. 9 would result in costly litigation and ultimately would be struck down by the courts.

Of all the problematic Prop 9 provisions,  there’s one that strikes us as a perfect example of the problems addressed in the PPIC poll  One of the “crime victim’s due process rights” that Prop. 9 adds to the California Constitution is the right of a crime victim to:

[refuse a] discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant.

This is a major problem. Before we explain why, let’s go on a brief flyover of “due process rights” and “discovery.”

Due Process

In criminal justice, “due process rights” are the rights which guarantee that a criminal defendant gets a fair shot before and during trial. Due process rights are either specifically stated in the constitution or derived from the constitution. Due process rights specifically stated in the constitution include the right to be represented by an attorney and the right to have your trial heard by a jury. One of the due process rights derived from the constitution is the right to a fair “discovery” process.


Discovery is a procedure before trial in which the defense and prosecution exchange information that’s relevant to the case. The rules for “discovery” are set forth in the California Penal Code. One of the primary purposes of the discovery process, says the Penal Code, is to “promote the ascertainment of truth in trials” by making sure that both sides have access to the evidence which will be produced at trial – this includes the names and contact information for witnesses the prosecution plans to call at trial, documents, photographs, videotapes, medical test results, DNA evidence, fingerprints, and any other relevant materials that are either “in the possession of the prosecuting attorney” or in the possession of the police.

The process starts with both sides informally requesting information from each other If there’s trouble agreeing on what should be turned over, a judge rules on what should and shouldn’t be exchanged.

If the item is not in the possession of either the prosecutor or the defense attorney, then the item must be subpoenaed by the attorney who wants it. When a subpoena is issued, the requested item must show up in court on a certain day or whoever is responsible for the item could end up in jail until he or she turns over the item.

And as you’ve probably figured out,  both California and the U.S. Supreme Courts say that a due process violation occurs when the prosecutor withholds evidence that may prove a defendant’s innocence.

OK, let’s move on to how the victim’s ability to refuse a discovery request can be a serious problem in a criminal trial.

The Defense Attorney’s Problem

Let’s say you’re a defense lawyer, your client is accused of armed robbery of a liquor store. The victim is the owner of the liquor store who was working behind the counter at the time of the robbery. Your client says he didn’t do it, says he was never there. You learn of a security camera at the liquor store that caught the whole robbery on video. The liquor store owner has a DVD of the camera footage. You don’t know what’s on that camera footage, but it very well could help prove that your client did not commit the robbery.

Through the discovery process we described, you ask the Prosecutor for the DVD of the footage. The prosecutor asks the liquor store owner for the DVD, but the liquor store owner, as crime victim, invokes his “Prop 9 due process rights” and refuses to turn over the DVD. The prosecutor informs you of this.

As a diligent defense lawyer, you take the discovery process to the next level and serve a subpoena on the liquor store owner.  The subpoena demands that he turn over the DVD or risk jail. But the liquor store owner stands firm and tells you that a subpoena is still “discovery”, that he’s still invoking his Prop. 9 rights, and that he’s keeping the DVD.

You tell the judge to throw the liquor store owner in jail until he complies with the subpoena. The liquor store owner then turns to the prosecutor and asks her to keep him out of jail by advocating for his constitutional rights to refuse discovery.

And this is where Prop 9 creates all kinds of trouble for the prosecutor.

The Prosecutor’s Problem

Under Prop. 9, the California constitution now says

The prosecuting attorney upon request of the victim, may enforce the rights [of the victim]…in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request.

This raises two big questions. First, is the liquor store owner the prosecutor’s client? Second, if the prosecutor advocates for the liquor store owner, is the prosecutor violating the law?

The first question can be disposed of quickly. The liquor store owner, or any other crime victim, is most assuredly not the prosecutor’s client. In a criminal case, a crime victim is a witness – an important witness who should be treated with respect – but still nothing more than a witness. It’s the prosecutor’s job to prosecute cases and pursue justice objectively and evenhandedly on behalf of all the people of the state. If the prosecutor represented the crime victim, she’d be required to “zealously advocate” for her client’s legal interests – which means she can’t be objective or evenhanded. This is a textbook definition of a conflict of interest.

You’ll notice that the Prop 9 attorney provision says that a prosecuting attorney “may” enforce the rights of the victim…this implies that the prosecutor can refuse to represent the client, but that’s an issue for an appellate court to decide. For now, let’s take the Prop. 9 amendment at face value and say the prosecutor does argue for the victim to keep the DVD. This presents a new problem: Violating attorney ethics laws.

Under the California Professional Rules of Professional Conduct an attorney:

shall not suppress any evidence that the [attorney] or the [attorney’s] client has a legal obligation to reveal or to produce.

This one is a real head-scratcher. The prosecutor knows that the California Penal Code, as interpreted by the California Supreme Court, obligates the liquor store owner to comply with the subpoena and turn over the security camera footage. There’s also U.S. Supreme Court rulings that say the same thing. If the prosecutor argues that the liquor store owner be allowed to keep the DVD, she’s arguing for her client to suppress evidence that he has a legal obligation to produce.

On the other hand, in this post-Prop 9 world, the prosecutor must now look out for the victim’s due process rights. Plus the Prop. 9 amendments arguably trump the discovery rules in the penal code and any California Supreme Court decisions on the matter. And since she’s in state court on a state issue, the prosecutor is bound by California law and the California constitution, not necessarily federal law handed down by the U.S. Supreme Court.

If the prosecutor is halfway awake, she’ll also think about what happened to the prosecutor in the “Duke Lacrosse Team Case.” He didn’t turn over DNA evidence which proved the players’ innocence. He not only lost his case, he lost his job, he lost his license to practice law, and he may very well lose a $180 million civil suit against him. Prop 9 or not, suppressing evidence is serious business.

The Problem For All of Us

The discovery refusal provision of Prop. 9 will likely be overturned by the Courts or interpreted so that it meets the due process standard, but as voters were warned, it will be expensive, time consuming, and could have been easily avoided if the ballot initiative process permitted some objective analysis of the law.  Oh well.  As long as everyone felt good about it coming out of the voting booth, that’s the important thing, right?

Stay tuned…