Defense attorney does not need to disclose information about a witness that he does not call to testify

The Court of Appeal reversed the trial court’s sanctions imposed on a San Francisco Public Defender for failing to provide the prosecution with the name and statements taken from a witness called by the co-defendant’s lawyer.  The Public Defender asserted that the trial judge improperly imposed a $950 sanction on him because he never intended to call the witness at trial and did not call the witness. The defense strategy was not to put on an affirmative defense but to create reasonable doubt of his client’s guilt through cross examination of the witnesses called by the co-defendant’s lawyer and the District Attorney. The decision clarifies the limits of the defense’s reciprocal discovery obligation in criminal cases. This was the first case to address whether a criminal defense lawyer in a multi-defendant case has duty to disclose a witness he claims he does not intend to call, but reasonably anticipates a codefendant is likely to call. (People v. Landers, A145037; 1/14/19; C/A 1st, Div.4)

Reciprocal Discovery in Criminal Case

Reciprocal Discovery in criminal cases was added to the Penal Code by Proposition 115 in 1990 and may be found at Penal Code, part 2, title 6, chapter 10 (§ 1054 et seq.) (Chapter 10). “The purpose of [Chapter 10] is to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial. Reciprocal discovery is intended to protect the public interest in a full and truthful disclosure of critical facts, to promote the People’s interest in preventing a last minute defense, and to reduce the risk of judgments based on incomplete testimony.” (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201

Defense Obligation under Reciprocal Discovery

The defense shall disclose: “[t]he names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons … .” These disclosures are due “at least 30 days prior to the trial.” (§ 1054.7.) But in some cases the obligation to disclose may arise later. Where disclosable “material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately.” There is a continuing duty of disclosure beginning 30 days prior to trial and running through trial to its conclusion. An order enforcing reciprocal discovery obligations under Chapter 10 may be sought under section 1054.5, subdivision (a)

Duty of Witness Disclosure

The California Supreme Court held that “the prosecution’s right to discover defendant’s witnesses under section 1054.3 is triggered by the intent of the defense to call that witness. Thus, the disclosure by the defense of its witnesses under section 1054.3 signals to the prosecution that the defense ‘intends’ to call those witnesses at trial.” Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375 The Izazaga  court held that for both the defense (§ 1054.3, subd. (a)(1)) and the prosecution (§ 1054.1, subd. (a)), “‘inten[t] to call’’ means that “‘all witnesses [a party] reasonably anticipates it is likely to call” must be disclosed.

No duty to disclose witnesses that a codefendant is likely to call

A criminal defense lawyer in a multi-defendant case has no duty to disclose under section 1054.3 a witness he claims he does not intend to call, but reasonably anticipates a codefendant is likely to call.

Until then his duty of loyalty to his client obligated him not to make any disclosures about the witness.

Attorney’s thoughts and impressions work product is exempt from disclosure

For purposes of criminal discovery under Chapter 10, core “thoughts and impressions” work product is exempt from section 1054.3 disclosure (see Izazaga, supra, 54 Cal.3d at p. 382 & fn. 19), just as it is in civil discovery. (Coito v. Superior Court (2012) 54 Cal.4th 480, 496; Code Civ. Proc., § 2018.030, subd. (a).) The defense does not need to disclose evidence gathered by an investigator who may be called by the defense for impeachment purposes.


Attorney’s ethical duty allows him to require that every element of a case be established

Attorneys have an ethical right to require that every element of the case be established (Rule 3.1 of the Rules of Professional Conduct of the State Bar of California). The sanctioned attorney in this case pursued a “minimalist strategy” without putting on an affirmative case. The  court found that the trial court has improperly imposed the sanctions because the defense attorney had no obligation to disclose what he knew about a witness he did not intend to call and he did not have a general duty to disclose exculpatory material.

If you are charged with a felony or misdemeanor you need experienced criminal defense defense counsel on your side. Reach out to the expert San Francisco Criminal defense attorneys at Uthman Law Office for the help you need. Attorney David Uthman has over 20 years of experience as a litigation attorney and almost a decade of experience as a police officer. At the Uthman Law Office, we know the law, we know the process and we know how to get results. Call us today at (415) 556-9200 to schedule your FREE initial consultation.


Contact Information