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  • Dolores Sinistaj

California Tackling Prosecutorial Misconduct

Updated: Oct 18, 2023

California has recently prioritized the reduction of convictions that were deemed wrongful in hopes of creating an equal and leveled playing field when it comes to criminal cases. While there is a plethora of concerns in the legal field, California presently decided to tackle an issue that some believe has been plaguing the justice system in the state after a number of misconduct scandals have surfaced. Prosecutors who had previously withheld evidence from defense attorneys did not face harsh punishments. But now, under the newly passed law, Rule 5-110, California prosecutors who deliberately withhold evidence from defense attorneys may face harsher punishments, in the form of felony penalties.

The California State Bar is currently urging the adoption of a new ethical rule, requiring prosecutors to turn over and present any and all evidence that would benefit the defendant’s case. This rule not only promotes fair litigation for both sides, but it also has the potential to affect defendants’ sentences. The evidence being discussed here is known as exculpatory evidence, and as of now, California's ethical rules of conduct only state that prosecutors have a duty to follow the law. California’s ethical rules of conduct do not follow through with enforcing punishments for those who violate the rule.

In the Supreme Court case, Brady v. Maryland, the court found that prosecutors in general must provide the defendants with any and all evidence that could potentially "raise doubts about their guilt by the start of the trial." However, there was not a persuasive consequence for prosecutors to do this, especially since prosecutors seldom were sanctioned for failing to turn over the material exculpatory evidence. While this is required legally, in practice the rule has little influence in deterring wrongful conduct. The Wall Street Journal in 2009 further explained this holding, saying that even "if the omission is discovered, prosecutors don't have much to fear.

California’s new Rule 5-110 is similar to the existing ABA Rule 3.8, which had been adopted and supported by several other states. California unfortunately is late to the ethical party. The ABA Rule 3.8, which is the Special Responsibilities of a Prosecutor Rule, has been adopted as is by Indiana, Illinois, and West Virginia. In addition to these three states, thirteen other states have adopted modified versions of this rule, while five states are currently studying the implications of the rule, one of which is California. Given the prosecutorial misconduct that took place in the Orange County D.A.’s office, it is evident that a state studying the rule does not hold much regard for the rule until its adoption. Although Ms. Lopez said, “the legislation was not specifically inspired by events in Orange County DA office,” California’s legal standard will be raised for offices such as this one, and for offices across the state.

While the proposed rule is supported by some, not all prosecutors are on board with adopting the rule, and many have been vocal in their opposition to it. One opponent to this rule is Laura Duffy, the U.S. attorney for the Southern District of California. As The Daily Journal reports, Duffy "argued that the ethics rule would create erroneous discovery obligations that go beyond what's required under federal law, and require prosecutors to turn over information even if it isn't relevant to the outcome of the case."

Additionally, certain politicians, such as Senator Moorlach, are not in favor of this proposed bill. Moorlach has said that he believes the bill is too severe in making what once was a misdemeanor into felony penalties against the prosecutors. He added on that he was disturbed that someone could avoid a punishment, such as the death penalty, because of the missteps and mistakes a prosecutor could have made. Moorlach notes, “I think at the end of the day, the lawyers in the Orange County D.A.’s office want to do what’s right. I’m giving them the benefit of the doubt.

​However, when prosecutors have missteps and make mistakes, the defendant, among others, suffer the consequences of having their cases overturned. This is financially tolling and inefficient towards judicial resources, and it drags out an already emotionally tolling process for all parties involved. Some defendants feel that due to the absence of this law, they were deprived of justice. An example is Obie Anthony, who is now 42, served 17 years behind bars after he was convicted of a murder in 1995. It was not until 2011 that Anthony was exonerated, "after it was revealed that a key prosecution witness, a pimp, had received leniency in exchange for his testimony — a deal prosecutors had not disclosed." The prosecutors involved were not held accountable for their ethical behavior or lack of thoroughness, and as a result, the justice system failed to deliver justice.

State Assemblywoman, Shirley Weber (D) authored the bill, and Governor Jerry Brown (D) signed the bill into law. Not only does the law bolster "a judge's ability to boot a prosecutor who withholds evidence from a case,” but it also makes that “if other employees of the prosecuting attorney's office participated or sanctioned the suppression of evidence, the court is authorized to eject the entire office." The law will essentially require that a presiding court report violations to the state bar, which provides for more accountability to the profession since the state bar licenses attorneys.

Before this new law was signed, failing to turn over exculpatory evidence was considered a misdemeanor, but now it will be considered a felony; “violating the law can result in prison sentences of either 16 months, two years or three years." The Deputy Public Defender Scott Sanders argued that, "county prosecutors have routinely violated the law for at least 30 years by selectively presenting evidence obtained from a jailhouse informant network." Instances such as these further emphasize the importance of having this new law adopted by the state of California.

Cases involving prosecutorial misconduct inspired people like Patty Lopez to author and sponsor AB 1909 Falsifying Evidence. She states that, "prosecutorial misconduct is an epidemic in the legal system, in part because the pressure to win is so high and the risk of punishment so low." Assembly Member Lopez added that she just hopes "that when people think the rules don't apply to them, they will think twice before they abuse their power."

In the Huffington Post article, New California Law Cracks Down On Cheating Prosecutors, the former Chief Judge of the Ninth Circuit Court of Appeals, The Honorable Alex Kozinski, said that, "The bill seems like a step in the right direction. It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority." Additionally, the Dean of the University of California, Irvine Law School told The Huffington Post that "The Constitution and professional ethics already require that prosecutors turn over exculpatory evidence...but violations are widespread.”

Projects and organizations like the Innocence Project are pushing for the passage of these new ethical rules to "ensure prosecutors aren't withholding evidence and to decrease the occurrence of wrongful convictions." Looking at the Innocence Project's 2010 Study, more than 700 California cases of prosecutorial misconduct were reported from 1997 to 2009. Out of those 700 plus cases, only six prosecutors were disciplined. These statistics serve as evidence that there have "been no consequences for California prosecutors caught cheating the system."

Although the problem of prosecutorial misconduct is not unique to California, or to the legal system in general, this development will create more fairness for defendants within the criminal system. It will raise the standards and expectations of prosecutors, and it will work to level the playing field in the legal system, where criminal defendants are often disadvantaged. For the first time since the 1980s, the proposed new rule will go to the Supreme Court "in advance of a larger project to overhaul the Rules of Professional Conduct." Practitioners and others involved in the legal field should watch as this unfolds at the Supreme Court. The Supreme Court’s ruling has the potential to support or denounce similar exculpatory evidence rules noted in the Federal Rules.


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