California Bar Journal
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Self-Assessment Test
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Answer the following questions after reading the MCLE article on reciprocal discovery in criminal cases. Use the answer form provided to send the test, along with a $20 processing fee, to the State Bar. Please allow at least eight weeks for MCLE certificates to reach you in the mail.

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.