California makes it a felony for prosecutors to withhold or alter exculpatory evidence

Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

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29 Responses

  1. Murali says:

    Its a wonder how this wasnt a felony before.Report

    • Don Zeko in reply to Murali says:

      I’m a bit confused by this, but not enough to look up the California criminal code at work. Is obstruction of justice not already a felony in CA? Does it have distinct elements from what’s described in the story?Report

      • Aaron David in reply to Don Zeko says:

        Ya know, I have lived here forever and I thought that was the case also.Report

        • Morat20 in reply to Aaron David says:

          Lots of people thought investment advisers had to be fiduciaries. (Well, they thought that investment advisers had to adhere to the same code as fiduciaries. Most people don’t know what a fiduciary is, but they’d be shocked at the number of people they simply assume are such and…are not).

          Same reason here. Pretty entrenched motive for not making it a felony, a public blithely unaware of the misconduct, and a lot that can be swept away as “tough on crime’.

          You’d be surprised at how many Americans, when viewing a miscarriage of justice, think “He/She probably did something else just as bad, why else would the cops and DA been after him/her?” and figure it all worked out properly in the end.

          Because if you ain’t guilty of SOMETHING, why would you have come to the cops attention? (Although I’m gonna be honest. It’s a surprising percentage of white Americans who think this way. Minorities, by and large, have experience to the contrary. Driving while not-white, for instance, is an epidemic across the country).Report

      • Murali in reply to Don Zeko says:

        In a complete contradiction to my initial statement, the way I understand it is that the this does not happen to fall under obstruction of justice because, at least from what I understand from TV, obstruction of justice is interpreted in a technical way which applies to things like ordinary folks not doing things which cops ask them to when they have a warrant or something. So, if the cops have a warrant to search your house and you don’t let them in that is an “obstruction of justice”. But it doesn’t apply to prosecutors or cops handing over exculpatory evidence even though such things may be literally obstructions of justice, they are not “obstruction of justice” qua legal terminology.

        My wonder is a bit more normatively directed (as in how could people be so morally callous) rather than specifically legal.Report

        • Don Zeko in reply to Murali says:

          I mean, I’m a lawyer. I ought to be the one looking it up and explaining things to y’all laypeople, but I am at work and lazy, so I’m going to beg a certain editor of this site to do it for us.Report

    • LeeEsq in reply to Murali says:

      Your a libertarian and you wonder why state officials aren’t keen on punishing themselves for their misconduct?Report

    • Saul Degraw in reply to Murali says:

      Qualified immunity. We want government workers to be able to do their jobs without fear of civil suit or other punishment.

      To be fair, the government does get hit with a fair number of crank lawsuits without merit and the government still has to go through the process of getting those lawsuits dismissed like any other defendant. A friend of mine had an internship at the DOJ and his job was getting the crank lawsuits thrown out. A infamous one was a prisoner who sued himself and then somehow demanded that the government pay him 145 million dollars or so. There are also lawsuits from the tinfoil hat brigade.

      The real answer is that getting people to care about civil liberties is hard. Getting people to care about the due process and constitutional rights of criminals is even harder because people tend to see these as rights for criminals and not as rights for everyone. People see the DAs as good guys and from what I’ve read, many DA offices have a strong institutional culture of winning at any cost.

      The Supreme Court can rule on rights but it doesn’t have the jurisdiction to tell states how to administer those rights. So the Supreme Court can rule in Gideon on the right of counsel but it can’t tell states how much they have to fund their public defenders offices and there are very few places in the United States where the public really cares about the funding of the public defenders office. San Francisco has an elected public defender and the people of San Francisco seem liberal enough to care that he does his job.

      The Supreme Court can enact the Brady Rule and tell prosecutors that they have a constitutional duty to hand over exculpatory evidence to criminal defendants and their counsel. The Supreme Court does not have the budget, manpower, or jurisdiction to tell every prosecutor how to comply with the Brady Rule.

      Lastly the adversarial system of US justice does not help much probably and in my experience the most bad blood is between prosecutors and defense attorneys in criminal cases.Report

  2. Oscar Gordon says:

    If only we had a lawyer admitted to the CA bar on this forum who could offer insightful commentary…Report

  3. the new state law makes it a felony, rather than a misdemeanor, for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants.

    What does “alter” mean there? Its common meaning would more or less amount to tampering with evidence, which I thought was already a felony.Report

    • Stillwater in reply to Mike Schilling says:

      “When the prosecution does it, that means it’s not illegal.”Report

    • Kolohe in reply to Mike Schilling says:

      Possibly something like – you have a full day or two of security camera video. You edit it to the amount you think is necessary to prove you case to a jury. This is not tampering with evidence.

      *But* if you edit it to a time frame that leaves out something that would give the defense a chance plausibly present an alternative narrative for what everyone is seeing, that would be covered by the new statute. (Now how that differs from normal rules of discovery, I have no idea. Other than I think violating those rules as written now may not bring immediate repercussions on the prosecuting attorneys, just new trials for defendents)

      (Disclosure- Sam Waterston has taught me everything I know about the law, court procedures, and robot insurance)Report

      • Gabriel Conroy in reply to Kolohe says:

        Sam Waterston has taught me everything I know about the law, court procedures, and robot insurance

        Robots! I don’t know why the scientists make them!Report

      • Morat20 in reply to Kolohe says:

        I suppose the wording is there to ensure you won’t withhold evidence by alteration. (Like editing the aforementioned video, and then presenting it to the defense as the whole video. Maybe you never lied and said it WAS, they just drew the wrong conclusions so never asked for it all).Report

  4. Stillwater says:

    Violators of the law could be sentenced to up to three years in prison.

    If it were me, I’da gone with mandatory minimums, three strikes & yer out!, and capital punishment as the maximum allowable penalty for any particular crime.Report

    • Don Zeko in reply to Stillwater says:

      The Hammurabi voice in my head thinks the penalty ought to be whatever punishment is attached to the crime you’re charging someone with using tampered evidence.Report

      • notme in reply to Don Zeko says:

        Would that voice allow us to kill folks that murder?Report

        • Don Zeko in reply to notme says:

          Sure, but it turns out that I don’t think Hammurabi is a very good way to organize our justice system. So I oppose the death penalty, and I don’t actually support my above plan for penalizing prosecutors that tamper with or withhold evidence.Report

          • Murali in reply to Don Zeko says:

            Actually, I think we should listen to the Hammurabi voice more often. If we take reciprocity seriously, then people who do good for others deserve, roughly, equally good things and people who do bad things to others deserve equally bad things. There’s also the consideration of treating people as ends in themselves i.e. of treating them as rational autonomous beings who are prepared be subject to a universal law. i.e. as people who are prepared to take what they dish out.Report

      • El Muneco in reply to Don Zeko says:

        Or, in a similar vein: let them cool their heels in the county lockup for a week or so without bail set – then come at them with an offer to plea down to resignation from office in order to avoid doing three-to-five long.
        Call it the “Morissette Rule”.Report