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1. Prior to the enactment of Proposition 115, the
defense in a criminal case did not have to inform the prosecution of
the names, addresses and statements of witnesses which it was going to
call at trial.
2. Under Proposition 115, a party must disclose
the names and statements of a witness that it intends to call at a
trial, but must disclose the address of the witness only if the
opposing party cannot locate the witness.
3. Proposition 115 provides that although the
statements of witnesses the defense intends to call at trial must be
turned over to the prosecution, the statements of the defendant in the
criminal case need not be disclosed by the defense.
4. The constitutionality of the two-way discovery
scheme enacted by Proposition 115 has not yet been assessed by the
California Supreme Court.
5. A lawyer has an ethical duty to not mislead
the prosecution or judge regarding what witnesses he or she intends to
call at a trial.
6. It is not until an attorney determines that he
or she intends to call a witness at a trial that the duty to disclose
is created.
7. Whether a lawyer "intends to call" a
witness at trial is determined by an objective standard, requiring a
judge to ascertain whether a reasonable attorney in the same situation
would have decided to use the witness' testimony at the trial.
8. Even if an attorney violates the discovery
rules, the judge is never obligated to report the matter to the
California State Bar for potential discipline.
9. When a party has violated the duty to disclose
its witnesses, the judge has the power to continue the case in order
to give the opposing party time to investigate the witnesses, rather
than impose any other sanction.
10. Although a judge may impose sanctions for a
discovery violation, such as holding a party in contempt of court or
barring a witness from testifying, the judge may not inform the jury
of the discovery violation.
11. When a judge sanctions a lawyer for a
discovery violation, the State Bar can impose discipline on the
lawyer, including suspending his or her right to practice law.
12. If a discovery violation is sufficiently
egregious, the judge may preclude the offending party from calling his
or her witness even if lesser sanctions would be equally effective.
13. Appellate cases discussing the propriety of
precluding witnesses from testifying as a discovery sanction are
equally applicable to both the defense and prosecution.
14. Preclusion of evidence might be a valid
sanction if the discovery violation causes the opposing party
prejudice, even if the violation was not done on purpose.
15. If a discovery violation is deliberate and
motivated by a desire to obtain a tactical advantage at trial, then
the judge may sanction the offending party by precluding his or her
witnesses from testifying at the trial.
16. When a party surprises its opponent at trial
with evidence that should have been disclosed beforehand, and neither
a continuance of the case nor a contempt sanction would have been
effective, the judge is authorized to impose the sanction of
preclusion of evidence.
17. If a defense attorney acquires the identity
and whereabouts of a witness through her own investigation, it is a
misdemeanor if the attorney discloses the name, address and telephone
number of the witness to the general public.
18. When the prosecution discloses to the defense
the address and telephone number of the victim of a crime, and the
defense wants to inform its investigator of the whereabouts of the
victim so that the victim can be interviewed, the defense need not
obtain a court order to make the disclosure.
19. When a defendant is representing himself at a
criminal trial, the prosecutor must disclose to the defendant the
names, addresses and telephone numbers of witnesses it intends to use
at that trial.
20. If an attorney is charged with a misdemeanor
violation for wilfully disclosing the names, addresses and telephone
numbers of witnesses turned over by the prosecution, but the a jury
finds the attorney not guilty, then the State Bar cannot take any
action disciplining the attorney. |
