Are Prosecutors To Blame For The Growth In Incarceration?

The prosecutor has more control over life, liberty, and reputation than any other person in America.

– Robert Jackson, United States Attorney General, Justice of the United States Supreme Court, and Chief United States Prosecutor at the Nuremberg Trials.

The public prosecutor was a uniquely America invention.  Although we borrowed much of our law from England, criminal prosecutions there were generally conducted by the victims, in tandem with tort suits against hte perpetrator of the harm.  A public prosecutor prevents blackmail by the victim, who in early England could, and often did, threaten criminal prosecution unless the defendant paid a settlement in the tort suit.  A public prosecutor prevents the criminal courts from being used as conduits for unreasonable, vengeance-seeking victims (or their survivors) who are incapable of neutrally assessing the defendant’s criminal responsibility.  It also means that poor victims will have their rights protected even if they could not afford the costs of prosecution.  And it ensures that public money is only spent on crimes that the public feels are important, and not on private disputes.

John Pfaff thinks that prosecutors, because of their power, are the primary driver of mass incarceration in America. He argues that prosecutors are responsible for rising prison populations during a period of falling crime.

What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

Pfaff advocates reform by electing new district attorneys.

What makes it very hard is that the person we really need to target now—whose behavior we need to regulate—is the district attorney, and the district attorney is a very politically independent figure. He’s directly elected, and he’s directly elected at the county level. […] So you have to figure out how to go county by county and either elect DAs who have less punitive attitudes, or you can try to sort of change the incentives DAs face at the state level. But it’s very tricky.

Pfaff’s work was a response to a National Research Council report. The report was conceived by James Q. Wilson, an extremely influential thinker in criminology. It lists the underlying causes of incarceration as “crime, politics, and social change.” It found that “[t]he policies and practices that gave rise to unprecedented high rates of incarceration were the result of a variety of converging historical, social, economic, and political forces.” The system was made punitive by “powerful institutional, cultural, political, economic, and racial forces.”  “[T]he United States responded to escalating crime rates by enacting highly punitive policies and laws and turning away from rehabilitation and reintegration.”

Pfaff had a strong reaction to this report. He began writing about what he believed were flaws in the report. His writing started to pile up. And it eventually led to his book, Locked In.

Pfaff is making a diagnosis of exclusion. He isn’t sure why prison populations have risen, but he noticed that more arrests are resulting in prosecution. So he identifies the rise in prosecution as the cause of mass incarceration. This is not proof by a long shot; it’s more like an educated guess. When more research is needed, academics shouldn’t publish books acting as if the question is settled.

The second problem that I have with Pfaff’s thesis is that he doesn’t know why prosecutors are filing more. Personal experience leads me to believe that prosecutors offices are chronically short-staffed, and that the filing decisions of the past were driven by the very real limitations of staffing. In the old days, prosecutors had to decline cases because they did not have the resources to prosecute them. As time has gone on, prosecutors have obtained more staff and resources, and can prosecute more. And they should, after all, one of our guiding principles is “equal justice under law.” Imagine how a victim feels when a prosecutor tells them that they do not have time to prosecute their victimizer. As we move away from a history of unequal enforcement to a period of equal enforcement against all criminals, Pfaff should not complain that prosecutor’s filing decisions are causing mass incarceration. After all, prosecutors are simply living up to our ethical ideals, and doing more of the work that we are entrusted with.

Next Time, Use A Knife

I recently tried a case in which a defendant really screwed himself over by using a gun.  He broke up with his girlfriend and confronted her when she brought another man to pick up her stuff from his house.  The boyfriend shot several times at the man, causing him serious injury.  Because he used a gun in his fit of rage, instead of using a knife, he is now facing life in prison.  By contrast, if he had used a knife, his sentence would have been increased by four years: one for the knife and three for the injury.  Four years versus life is a big difference.

California has a “use a gun and you’re done” law: Penal Code § 12022.53. If you use a gun during a serious felony, your sentence is extended by an additional 10 years. If you fire the gun, your sentence is extended by an additional 20 years. And if you cause great bodily injury to a person as a result of firing a gun, then your sentence is extended by 25 years to life. These extensions are in addition to your punishment to the crime itself. In fact, the punishment you face for using a gun often far exceeds the punishment for the underlying crime.

Penal Code § 12022.53 was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of certain felonies. The Legislature found “that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime.”  The Los Angeles Times described the bill as “supported by virtually everyone outside the far left.”  The author said, “With the 10–20–life provisions of [Penal Code § 12022.53], we are sending another clear message: If you use a gun to commit a crime, you’re going to jail, and you’re staying there.”

The judge may not strike this enhancement.  In other words, even if the judge feels that the additional punishment is unjust, he cannot stop the additional time from being imposed.  Moreover a judge cannot avoid the additional punishment by simply granting probation, as he can in other cases.  Finally, the enhancement prevents defendants from receiving the same amount of jail credits that others may get: sentence credits are limited to 15% of the total term.

The limitations on the judge may not bind the prosecution, however.  Penal Code § 1009 allows the prosecution to amend the information “at any stage of the proceedings.”  If there is no prejudice, an amendment of the information for defect or insufficiency may be granted up to and including the close of the trial.  (People v. Goolsby (2015) 62 Cal.4th 360, 367-368 [amendment upon submission of the case to the jury].)  Indeed, courts have even allowed amendment after a jury verdict but before sentencing.  (See People v. Valladoli (1996) 13 Cal.4th 590 [amendment to correct clerical error by adding prior convictions].)  Of course, the prosecution could amend the complaint at any point during proceedings.  They also have the discretion not to charge the enhancement in the first place.  Enhancements like this one underline an important point: the prosecution often has more discretion to show mercy to defendants than a judge.
Some may agree with this law, and some may not.  As the Roman playwright Terence says in his “The Self-Tormentor”:
Ius summum saepe summa est malitia.
Extreme law is often extreme injustice.
(Act IV, Scene 5, Line 48.)
I find the title of the play appropriate, since we are all responsible for ourselves, andthose who violate the law open themselves up to this extreme punishment.  Whether a defendant actually deserves a break is another question.  The Legislature, which speaks for the people, clearly intended to throw the book at gun-toting criminals.  Prosecutors are part of the executive branch, and should carry out the legislature’s intent. I think that if more people knew about this law, they would be less likely to use a gun in the first place.  Maybe the most “merciful” thing for both victim and defendants is to get the word out, and prevent the crime in the first place.


  1. of or relating to Byzantium, the Byzantine Empire, or the Eastern Orthodox Church.
  2. (of a system or situation) excessively complicated, typically involving a great deal of administrative detail.
    “Byzantine insurance regulations”

I’m trying to get a handle on felony sentencing and discovering that complicated is not even close to an adequate description.  This makes it hard for me to learn, but also creates a larger societal problem.  Our criminal laws are supposed to reflect or morality.  That’s why everyone is presumed to know the law – we all know the difference between right and wrong.  But when the law has got to the point where it is in California today, no intellectually honest person could make the claim that the law reflects our morality.  Our law doesn’t even reflect a coherent system.  It resembles a hodgepodge of systems layered on top of each other.  When the law is this complex, those who know it well will be able to use its intricacies and idiosyncrasies to their own ends.  That’s why I’m taking the time to learn it.  I want to use it to protect the community and stand up for crime victims.  But what would stop an unethical person from using it for unethical ends?

My first impression of felony sentencing is that it is time for dramatic reform.  Where are the efforts to simplify and modernize these crucial laws?  We haven’t given up on this have we?

Strike Peremptory Challenges

The Washington Post’s coverage of Foster v. Chatman and racial bias in jury selection brings up two issues that are not often discussed.

First, most of the coverage of peremptory challenges in general, and Foster in particular, have focused on alleged prosecutorial misconduct.  Specifically, commentators allege that prosecutors use peremptory challenges in a racially biased way.  I have read several articles who cite to a 2012 study of racial bias in jury selection in North Carolina.  In that study, prosecutors used 60% of their peremptory challenges to strike black jurors, even though they made up only 32% of the jury pool.  The implication, made explicit by many, is that prosecutors in North Carolina are racially biased against black jurors.  The Post article, crucially, points out the flip side of the coin.  “Defense attorneys used 87% of their strikes against white jurors, who made up 68% of the jury pool.”  Each side of a criminal prosecution, then, uses peremptory challenges in a way that may show racial bias*.  Could this be because there are differences between the races when it comes to their attitudes towards the criminal justice system, as the Post polling shows?  Could it be because recent shootings “have widened the gulf between how whites and blacks view law enforcement” as the Post asks?

The Post’s coverage of a second issue is also thoughtful and encouraging.  That issue is the way that Batson challenges (accusations that one side is using peremptory challenges in a racist way) actually occur in court.  The Foster case is not only the subject of the article but a great example.  Foster murdered Queen Madge White, a 79-year-old widow and former elementary school teacher.  He broke into her home, broke her jaw, sexually molested her with a bottle, and strangled her to death.  Foster confessed to the crime.  The case went to trial anyway, and the defense attorney announced that they would make a Batson challenge if any of the black jurors in the pool were stricken.  The prosecutor took notes of the characteristics of each juror, including their race.  He then used four peremptory challenges on the black jurors in the pool.  The Defense made a Batson challenge, which was heard by the judge, and rejected, because the prosecution provided valid, non-racial reasons for striking the jurors.

Racism is wrong, of course.  Striking black jurors to disenfranchise them is wrong.  Striking black jurors because of racial animus is wrong and stupid.  Prosecutors should be allowed to account for the different attitudes of blacks and whites without being accused of racism.  The lesson that I’ve learned from Chatman is that you can never strike a black juror (or even take a note indicating that someone is black) without someone making that accusation.  I don’t want to have to defend myself in that way.

That’s why my preference, along with Thurgood Marshal and Stephen Breyer, is to eliminate peremptory challenges entirely.  The burden of this change would fall most heavily on the community, rather the defendant, since prosecutors need everyone to agree, and biased juror can cost the community a conviction.  Defendants, by contrast, can afford a jury of 11 jurors with pro-prosecution biases, as long as they have one that is defense biased, or even neutral.  Eliminating peremptory challenges would remove the a the risk of professional sanctions on prosecutors who are constantly at risk of being misunderstood by an appellate court 20 years after jury selection.  Exposing the reputation and livelyhood of prosecutors to such capricious and inconsistent risk is not just.  A false accusation of racism, when made by the California Supreme Court, can end a career.  Therefore, we should end peremptory challenges altogether.

*It might not be racial bias.  Race correlates heavily with poverty, for example,  and it could be that prosecutors prefer rich jurors to poor ones and defense attorneys vice-versa.  I have heard anecdotal evidence to this effect.  One part of the discussion of these statistics that needs to be highlighted is that jury selection is extremely complicated, just like race relations, and reducing our analysis of the North Carolina study to the naked numbers of blacks and whites stricken is massively misleading and unhelpful.  In the same way that counting the number of firemen at fires and then accusing them of arson would be misleading and unhelpful.  This is not a case in which an innocent man was incarcerated because the prosecution gerrymandered a racist jury.  This was a case in which the defense elected to go to trial even though the defendant had confessed, raised allegations of racism at every turn, and each time these allegations were rejected by a judge.  Foster’s conviction should not have been overturned merely because the prosecution prepared for the defense’s threatened Batson challenges.


The Supreme Court reversed Foster v. Chatman on the grounds that the prosecutor improperly used peremptory challenges.  I’m not sure that was the right thing to do.

The California Supreme Court, in People v. Gutierrez, et al., handed down a rare reversal on the same grounds.  You can read the unanimous decision here.  This is the first time since 2001 that the California Supreme Court found that racial bias tainted jury selection.

The Use of Bail in Domestic Violence Misdemeanors

The most effective way to learn new law is to have something happen to you in court.  Here’s something I learned this week: bail can be used in misdemeanor domestic violence cases to give the prosecution the upper hand in plea bargaining.

The general rule is that misdemeanor arrestees get released on their own recognizance.  (Pen. Code § 1270.)  But there is an exception for domestic violence.  If a defendant is arrested for a domestic violence misdemeanor, such as a violation of Penal Code § 243(e)(1) or 273.5, she cannot be released without a bail reduction hearing.  (Pen. Code § 1270.1(a).)  In this situation the prosecutor must be given a two-court-day written notice and an opportunity to be heard on the matter.  (Pen. Code § 1270.1(b).)

So imagine that defendant is in custody for a violation of Penal Code § 273.5.  Defense counsel asks that he be released on his own recognizance.  Is this legal?

No.  Defendant cannot be released OR on this charge unless defense counsel provides the prosecutor with two days written notice.  This will allow us time to contact the victim and find out their position on OR release.  It will also give us time to carefully review defendant’s criminal history.

This means two additional days in custody for your defendant, a powerful incentive for them to plead the case away.  Defendants often want to get out of jail as soon as possible, and will plead guilty to do it.

There is an important exception to this rule.  Bail reduction hearings can be done at arraignment without an additional two days written notice.  This was the holding of Dant v. Superior Court (1998) 61 Cal.App.4th 380.  In that case, the defendant was arrested for violating Penal Code 273.5.  (Ibid at p. 383.)  He was arrested and then arraigned four days later.  (Id.)  At arraignment, defendant made a motion to be released on his own recognizance.  The court declined to rule on the motion because the defendant failed to give the prosecutor two court days’ written notice.  (Id.)  The Court of Appeal held that this was error.  It reasoned that the purpose of § 1270.1 is to prevent release of a defendant OR before she is brought to court.  It specifically mentions the situation where a judge is on duty over the weekend and releases the defendant OR without a hearing or ex parte.  (Id. at pp. 386, 390.)  If a court wanted to provide notice to the prosecutor, the Court of Appeal recommended that a magistrate deny OR and grant a reasonable continuance to obtain additional information relevant to the propriety of such a release.  (Id. at p. 390.)

This rule can also be tricky.  If you argue to the court that the defendant is so dangerous that he needs to be held on bail, you don’t want to then offer him a time-served plea bargain.  You will be saying “he’s dangerous” out of one side of your mouth and “he’s harmless” out of the other.  It will damage your credibility with the court.  Make sure you are asking for jail if you use this technique.  If you are intending to release him anyway, you will hurt your credibility in the future.

Step One: Throw a Fit. Step Two: Give Up

The Defendant just gave up halfway through my sixth trial.  It was a DUI with a refusal allegation.  It’s a difficult misdemeanor because a lot of jurors want to have a chemical test to rely on when they are deliberating.  Without a chemical test, some don’t feel comfortable convicting.  The police didn’t see a lot of objective symptoms of intoxication which might make up for the lack of a chemical test.  In fact, some of my witnesses disagreed on whether the Defendant smelled like alcohol.  And the police didn’t observe bad driving, another factor that is normally used to argue that the Defendant was under the influence.  All the Defendant was pulled over for was a speeding ticket.

In addition to the weak evidence of intoxication, the Defendant had an alibi.  He claimed that he was the victim of a shooting which left a bullet in his body.  This bullet cut off oxygen to his brain when he was under stress.  Despite this alibi, the defense had not noticed any witnesses, such as doctors, nor did they intend to introduce any medical records.  All they had were photos of lumps in someone’s body that I assume they were going to claim were bullets in the Defendant’s body.  That’s it.  I think the Defendant was intending to get up there any say, “Hey, I’m the real victim here.”  “I was robbed back in the 90s and I was shot three times.  One of the bullets has traveled to my heart.  Because of that bullet, every time I get excited the bullet cuts off oxygen to my brain and I pass out.”

There were several problems with that theory, even if you don’t consider the total lack of independent evidentiary support.  First, and most important, I had a report by an EMT on scene showing that defendant’s blood was properly oxygenated.  In other words, his defense was a complete fabrication.  Second, the Defendant didn’t even pass out, he just fell down.  Third, the robbery part, and the bullets part are completely irrelevant.  Fourth, again, there was no evidence of any of this other than Defendant’s self-serving testimony.  And of course, if he really had this condition, should he be driving in the first place?

The case was won on motions in limine.  I was able to exclude virtually every aspect of the other side’s defense.  I successfully argued that his statements about the prior robbery were an irrelevant attempt to garner the sympathy of the jury.  Then I pointed out the lack of medical records, and argued that Defendant should not be allowed to give his lay medical opinion as to his injuries, nor should he be allowed to repeat a doctor’s diagnosis, since this is hearsay.  These motions were granted as Defense counsel threw a fit and cursed the name of the judge to anyone who will listen.  I think he was putting on a show for his client.  He made several comments to that effect.

This case taught me the value of discussing your cases with your coworkers: they suggested the motions that I used, even though I was more than capable of coming up with them myself.  I knew it was valuable to write motions in limine, but they were so effective in this case that the Defendant just threw in the towel.

The Statistics Look Great

The San Diego District Attorney says that 11,000 people were charged with misdemeanor or felony DUI in her county in 2010 and that she convicted 98% of them.  That’s compared with a 73% rate state-wide.  But what does that mean?  The DA seems to be implying that she convicted 98% of DUI drivers at trial.  And that may be true.  If the San Diego DA tries all her DUI cases and has a conviction rate that high she must be doing something (everything?) right, because 98% is an astounding number.

But I think she got to that number in a different way.  Anyone with even a passing familiarity with the criminal justice system knows that the vast majority of cases are resolved by plea bargain.  For example, the National Review says that 95% of state felonies are resolved in this way.  Assuming that most cases in San Diego are resolved by plea bargain, as they are everywhere else in the country, and that all cases resolved by plea bargain result in a conviction, the San Diego DA’s office may be bargaining their way to a high conviction rate.  How would they do that?  Try to get as many people as possible to accept a plea bargain and thus a conviction.  How does a DA’s office get virtually everyone to accept a plea bargain?  By making really good offers.  Good in this context meaning gentle, mild, or liberal.  When a criminal Defendant is offered a slap on the wrist if they plead guilty, but will face the full sentence under the Penal Code at trial, then they are going to take a deal, and a conviction.  But a gentle sentence may do next to nothing to deter that driver from another DUI.  It may not come with any time in jail, the world’s oldest sober living facility.  And a mild sentence may not come with any serious treatment for those drivers with a drinking problem.

It seems like the San Diego DA is showing off her statistics.  But a closer look implies that she may be soft on DUI offenders for the sake of a high conviction rate.  Not something to brag about.

It Was Way Easier To Beat Your Case In The 70s

Yet another interesting fact from Crime in California, a publication of the California Department of Justice: in 1975 only 48.4% of arrests resulted in conviction.  By contrast, in 2013, 69.8% of arrests result in conviction: a huge jump.  Over the same time period the number of arrestees who “got off” when they were acquitted or their cases were dismissed dropped from 29.6% to 11.9%.

The number of complaints rejected by prosecutors has remained relatively constant.  But the chances that a law enforcement agency will release you rather than asking that you be charged has dropped from 10.7% of all arrests to just 3.4% in 2013.

Do these statistics mean that prosecutors are getting better at their job?  Does it mean that police are working up their cases better, and providing prosecutors with more evidence?  Or maybe police are only arresting winnable cases?  Maybe this has to do with the rise of plea bargaining?  I don’t know yet (but I’m looking forward to finding out) so in the absence of evidence I’m going to choose to believe that the rise in convictions is due to the hard work and dedication of the state’s Deputy District Attorneys, may their cups always overflow with justice.

You Will Not Be Acquitted If You Are Arrested For A Felony

I’m trying to figure out what the criminal justice system in California looks like.  Basic facts are often overlooked or taken for granted when reading about the field.  And I’d also like to know the answers to questions like, “If I’m arrested, what is the chance that I will be convicted, all things being equal?”  I found Crime in California, a report published by the Department of Justice in 2013.  The document is mostly tables, many of which include the caveat “caution should be used when interpreting this information because final dispositions are underreported.” It’s unclear what that means because the text portion is so cursory.  It includes sentences like “Crime is down in California.”  The tables themselves paint a very different picture than what I expected.  Based on what I see on television, I would expect the acquittal rate to be less than the conviction rate but in the same ballpark.  The number of arrests become filed charges that result in conviction is around 70%.

Disposition of Adult Felony Arrests 2013 By Offense


The conviction rate for property offenses is a sky-high 77%, while the conviction rate for violent offenses is just 60%.  The DA does not file a complaint on 25% of violent offense arrests, much higher than for any other category of crime.  This may help explain the low conviction rate, since the dismissal and acquittal rate is a relatively normal 10%.

The total number of felony arrests that become filed charges that result in dismissal or acquittal was 11.9% in 2013.  That’s quite a bit less than I would have guessed, if I were taking uninformed stabs in the dark, which is one of my favorite things to do.  Based on the data, you have a 3.4% chance of just being released by the police if you are arrested.  For example, the police may test the blood of a DUI arrestee and find that she is under the limit.  Or they may interrogate someone and become convinced that she didn’t do it.  The DA rejects another 14.8% of cases they receive.  Generally, cases are rejected on the grounds that there is insufficient evidence, but there may be other reasons, such as search and seizure violations by police that would render evidence inadmissible.  If the DA files on an arrestee, there is an 11.9% chance that the case will either be dismissed by the court or result in acquittal.  The court may dismiss a case after a successful suppression motion, if the complaint fails to state a violation of the law, or for any number of other reasons.  The DA may even dismiss a complaint if she feels it is not proper to prosecute it.

Up until now we have been considering dismissals and acquittals together.  But the thing that really surprised me was the acquittal rate considered alone.

Dispositions of Adult Felony Arrests 2008-2013

There were only 511 felony arrests that resulted in acquittal in 2013, out of 305,503 total arrests.  That means that if you are arrested, there is a .2% chance that you will eventually be acquitted.  That’s not 20%, that’s .2% or 1 in 500.  People are just not going through the system and getting acquitted.  It’s not part of the experience.

The Weird Problems Of Additional Ethics Rules For Prosecutors

The Laurie Levenson and Barrry Scheck wrote an editorial in December 15, 2014 outlining several examples of Brady violations, including the case of one defendant named “Kash Register.”  None of these men were proven innocent, but they were released as the result of Brady violations by the prosecution.

Current Rules

Under current law, a prosecutor’s duty to disclose exculpatory evidence is found in three places.  First, the Due Process Clause of the 14th Amendment requires a prosecutor to provide a defendant with material favorable evidence relevant to either guilt or punishment.  (Brady v. Maryland (1963) 373 U.S. 83, 87.)   Second, Penal Code § 1054.1(e) mandates that a prosecutor must disclose to a defendant “[a]ny exculpatory evidence.”  Third, the California Rules of Professional Conduct state that “[a] member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or produce.”  (Rules Prof. Conduct, Rule 5-220.)

Failure to follow these rules can result in contempt of court, suppression of evidence (including witness testimony), reversal of a conviction, and suspension or disbarment from the practice of law.  (Kyles v. Whitley (1994) 514 U.S. 419, 421-422; Pen. Code § 1054(b); Price v. State Bar (1982) 30 Cal.3d 537, 547-550.)  Under the current rule, 20% of attorney discipline cases for prosecutors are the result of discovery violations.

The Proposed Rules

Levenson and Scheck propose a new ethical rule mandating disclosure of any “potentially helpful” evidence.  They argue that the “materiality” standard is presents “cognitive difficulties” that would be resolved with a “potentially helpful” standard.  They don’t explain how simply substituting one set of words describing evidence to another set of words would simplify things.

They also argue for statewide adoption of the ABA Model Rule 3.8.  This imposes a broader, independent duty of disclosure on prosecutors.  A prosecutor shall

“make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor[…].”

The Differences

The difference between the new rule and the rules proposed by Levenson and Scheck seems to be that a prosecutor violates the current rule only when she “suppresses” evidence.  The proposed rule would mean that a prosecutor commits an ethical violation when they “fail to disclose” evidence “known  to the prosecutor.”  Just looking at the black letter of the two versions of the rule, they don’t appear to be very different.  A closer look, however, seems to show that the new rule would impose a stricter ethical duty on the prosecutor to disclose evidence that he or she doesn’t know about.  Under the current rule, a prosecutor cannot suppress evidence that she is unaware of.  The new rule seems to be the same, except that the Courts have given a broad interpretation to the concept of what the prosecutor is aware of.  Courts have held that prosecutors are aware of any information in her possession, or that she might discover in the possession of law enforcement.

Scheck and Levenson say that the new rule is “not about making the average prosecutor’s job more difficult or punishing prosecutors for innocent mistakes.”  Although that may not be their intention, that is exactly what this rule change would do.  The rule change makes an ethical violation of any failure to disclose evidence, even inadvertent failures.  A prosecutor violates Brady, and would violate this ethical rule, when the existence of the undisclosed material evidence is unknown to the prosecutor.  (Kyles v. Whitley (1994 514 U.S. 419, 437.)

Prosecutors, who already handle a shocking number of cases, would be faced with an ethical violation in each case if they mistakenly fail to disclose evidence.  As defense lawyers are fond of reminding us, Brady imposes a duty of investigation, not just disclosure.  All evidence in the prosecutor’s possession, and also in the possession of law enforcement, must be turned over, whether or not the prosecutor herself is aware of the evidence.  The new rules, as proposed, would mean that a prosecutor would have to painstakingly review each case, and follow up with the investigating agency, to determine whether they have any evidence they have not disclosed, even if she is not aware of anything that might lead her to suspect undisclosed evidence.  This is simply not possible for many prosecutors, who handle a calendar of 30 cases each day.  These prosecutors are being set up to fail.

With the proposed rule, the consequences of failing to disclose Brady evidence would be a crippling ethics violation that would follow a prosecutor around for the rest of her career, ethical violations are listed for the public to see on the California State Bar website.  This is not a change for the better.