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Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

The Truth News — Sat, 01 Feb 2025 05:04:25 +0000

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Misconduct by the Prosecutor

the prosecutor is a mere servant to the sovereign people to uphold the Constitution 1st and our laws 2nd, the law we vote for or are made by our elected servants we chose anything outside of these boundaries is treason to the US Constitution and their Sworn Oath and is abuse of immunity and civil rights and is a crime you will be held accountable by your employer, us the sovereign people! you are mere actors of the state servants to the people!

FRAUD$ BY GOVERNMENT

McNally v. U.S., 483 U.S. 350, 371-372 (1987), McNally v. U.S., 483 U.S. 350, 371-372 (1987), Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ”

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citing Meier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193 Notification of legal responsibility is “the first essential of due process of law”. See also:U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.” Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

Pro$ecutor‘$ Duty to the citizen

Bias – Removal of Prosecutor People v. Superior Court (Greer)

Abuse – Removal of Prosecutor People v. Superior Court (Greer)

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

Employers Beware: La Supreme Court Opens Line for Direct Negligence Claims from Employee Actions

Martin v. Thomas et al. 2022 – Employer Independent Negligence

Anti-SLAPP Law in California

Thompson v. Clark – Maliciou$ Prosecution claim under § 42 U.S.C. 1983 Click Here
20-659 Thompson v. Clark (04-04-2022) – Suing the Government

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. 
it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal 
charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has 
a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction 
wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the 
other party. Such a relation ordinarily arises when a confidence is reposed by one person in the 
integrity of another, and in such a relation the party in whom the confidence is reposed, if 
he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from 
his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause,
 thus an attorney may not prosecute any case that is not well
- 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964);
Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); 
see also Coulello v. State of California, 45 Cal.2d 57 (1955); 
Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). 
Clearly, this duty applies not only with reference to the client but also with regard to the court, 
opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal

system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, bur den, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .Further, the Right to TRAVEL by private conveyance for private purposes upon the Common way can NOT BE INFRINGED. No license or permission is required for TRAVEL when such TRAVEL IS NOT for the purpose of [COMMERCIAL] PROFIT OR GAIN on the open highways operating under license IN COMMERCE.

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) ”

In Berger v. United States, 295 U.S. 78 (1935), Justice Sutherland characterized prosecutorial misconduct as “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” In the years since Berger, advocates for the wrongly convicted have increasingly focused on prosecutors’ failure to disclose favorable evidence – what are known as “Brady” violations, after the 1963 case of Brady v. Maryland – as one of the most harmful and pervasive forms of prosecutorial misconduct.

In the Dewayne Brown case, for example, a long-buried email chain uncovered more than a decade after Brown’s trial revealed that the trial prosecutor, Dan Rizzo, had deliberately hidden phone records from Brown’s defense attorney that supported Brown’s alibi. Those records might have stayed hidden forever had the police officer who originally obtained them not saved and found a copy in his garage while Brown was wrongfully incarcerated on death row. It was only after the original records were turned over and Brown was released from death row that a special prosecutor assigned to the case concluded that Rizzo not only knew about the phone records before trial, but had knowingly concealed them from Brown’s defense team.

Another example is the case of Stanley Mozee and Dennis Allen, who were both exonerated in Dallas, Texas, in 2019 after spending more than 15 years in prison for a murder they did not commit. Their joint exoneration was based on documents located in the files of the trial prosecutor, Rick Jackson, showing that he’d knowingly put on false testimony from several jailhouse informants and suppressed key evidence from eyewitnesses that would have strongly supported Mozee’s and Allen’s innocence claims. source

Juri$diction

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

Ableman v. Booth, 21 Howard 506 (1859) “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the juri$diction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”

“Juri$diction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)] In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

how Jurisdiction & immunity is violated Murphy v. Ross, Civil Action No. 3:14cv870 (E.D. Va. Apr. 14, 2015)

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

NO IMMUNITY

“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

Civil Rights Torts

Thompson v. Clark 2022 – MALICIOUS PROSECUTOR & OFFICER

Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it $anction$ a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.“

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11-04-1974 – MALICIOUS PROSECUTOR & OFFICER

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.United States v. Wiltberger

citedhttps://goodshepherdmedia.net/sullivan-v-county-of-los-angeles/

Civil Rights

Boyd v. United, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure.This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

Downs v. Bidwell, 182 U.S. 244 (1901) “It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”

Duncan v. Missouri, 152 U.S. 377, 382 (1894)“Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it(the FourteenthAmendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the(Fifthand Fourteenth) amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885)“The rule of equality… requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.

Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882) “No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”

Olmstad v. United States, (1928) 277 U.S. 438 “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Mallowy v. Hogan, 378 U.S. 1“All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.“

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.“

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence.

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; UnitedStates v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442. “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power. Cook vs Iverson, 122, N.M. 251.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v.Stuart.64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind. 336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles(1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”Miranda vs.Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.”Miller v. U.S. 230 F 2d 486, 489.

“History is clear that the first ten amendments to the Constitution were adopted to secure certain commonlawrights of the people, against invasion by the Federal Government.” Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

you spoiled my right to a relationship with my son by perjurious statements in court and scheming to irritate, detract and divert attention from the real problemand paint me into a problem you sir will be SUED IN A CIVIL COURT when you get SUED WITH A TORT CLAIM on your department and county because you conspired to deprive me of my rights , by depriving me of 9.32 Particular Rights – Fourteenth Amendment – Interference with Parent/Child Relationship

you will be held accountable I DO NOT CARE YOU ARE A COP, YOU WONT BE FOREVER YOU WILL PAY, BUT WALMART IS HIRING AFTER ALL THIS SO DONT WORRY YOU STILL HAVE A SHIT LIFE JUST AT A DIFFERENT PLACE, A PLACE THAT DOES NOT ALLOW A PERSON WITH TRUST & POWER TO CORRUPT! YOU WILL BE A POWERLESS LOW PAID WORKER WHEN AS YOU AGE, YOU ARE A LYING CORRUPT ASS PIG YOU WILL PAY MONETARILY & REPUTATION WISE

you harmed me, my son, his grandparents and his brother (my other son)

Those were Bar and Business Code Violations
(with Penal attachments for code violation)

Rule 3.1 Meritorious Claims and Contentions

Rule 1.1 Competence

Rule 5-100 Threatening Criminal, Administrative, or Disciplinary Charges Caitly had her CHUMP PUNK PIG ABUSE BRUCE BLANK (BRAIN DEAD MORON)

Rule 3.3 Candor Toward the Tribunal
(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.

Rule 4.1 Truthfulness in Statements to Others I HAVE ATTACHED ALL HIS LIES
Truthfulness in Statements to Others also covers the duty of candor. He actually tells statements he knows to be false which is not allowed even when protecting confidentiality

Rules 1.2.1 [Advising or Assisting the Violation of Law) HE HELPED NIGEL STAY IN HOME

Rule 8.4 Misconduct

Business and Professions Code section 6106 discipline per Business and Professions Code section 6106 “for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.”
[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client,Cal. Bus. & Prof. Code § 6106 I HAVE ATTACHED ALL HIS LIES to the family law case 17FL000138 which the courts will be getting soon again OCT 2022
Moral Turpitude: Deceit, Dishonesty, Half-Truths Under California law, most forms of deceit and dishonesty by an attorney are considered acts of moral turpitude, according to the State Bar. Under Business & Professions Code § 6106, the commission of any act of moral turpitude constitutes cause for disbarment from the practice of law.
Ca. Bus. and Proof’s. Code § 6106 California Business and Professions Code section 6106, which permits State Bar discipline for actions involving dishonesty (among other things) whether or not a licensed lawyer is practicing law I HAVE ATTACHED ALL HIS LIES
Added by Stats. 1939, Ch. 34.
Cal. Bus. & Prof. Code § 6106 “The commission of any act involving moral turpitude, dishonesty, or corruption whether the act is committed in the course of his relations as an attorney, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” (Emphasis added.) “Moral turpitude” has been defined by the California Supreme Court as “anything done contrary to justice or honesty.” See Bryant v. State Bar of California (1942) 21 Cal.2d 285.
Cal. Bus. & Prof. Code § 6128 I HAVE ATTACHED ALL HIS LIES
Every attorney is guilty of a misdemeanor who either: Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party. This actually imposes misdemeanor criminal liability on a lawyer who engages in or consents to any deceit or collusion “with intent to deceive the court or any party.” (BP 6128(a)) Punishment for violating this section is up to a six-month jail sentence or a fine of up to $2,500 or both (Emphasis added.).
The B&P Code governs the conduct of all lawyers, no matter what area or type of practice involved. Read together, the above-referenced sections make it clear that as officers of the court, sworn to “preserve, protect, and defend the Constitution” as all must be in order to practice law in the State of California, lawyers are required to be truthful in all of their dealings or be guilty of a misdemeanor. This isn’t a “fine line” — it is black letter law. An attorney who is guilty of criminal conduct — whether misdemeanor or felony — can be assured that it will negatively affect their ability to practice law going forward.
Rule 3-200 Prohibited Objectives of Employment
A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is:

To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or
To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.
Id. at Rule 3-200; see also Cal. Bus. & Prof. Code § 6068.Subsection (c) provides that an attorney must counsel only just actions or defenses except if the client is charged with a public offense. Subsection (d) embodies the duty of candor and provides that may only do such things that are consistent with the truth. A violation of these rules could subject the attorney to suspension or disbarment. Cal. Bus. & Prof. Code § 6103.
California Rule of Professional Conduct 5-200, Trial Conduct, states that in presenting a matter to a tribunal, a member:
- - - Shall employ, for the purpose of maintaining the causes confided to the member, such means only as are consistent with truth; told the court Nigel has moved out even though I had emailed him surveillance and I presented to the court evidence contrary to his statements he denied my claims and mislead the court and bold face lied to them
    - Shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law; told through suggestion to the judge by not returning my son who fears moms home that I am kidnapping my son, even though I have police incident reports I show up to each exchange and the child refuses to go even after speaking with the sheriff and he said I put a gun to my sons head
    - Shall not intentionally misquote to a tribunal the language of a book, statute or decision; he did this by telling the court flat out lies on several instances including misleading by misquoting the tribunal decision previously the CONTENTS OF THE JUDGES ORDER TO PROTECT MY SON. Mr. Toepel also told the courts this with vexatious litigant told the court I fit the criteria which is lying and misleading the Tribunal. Mr. Toepel had the court make an erroneous decision and declare me a Vexatious litigant. I NEVER FIT ANY CRITERIA! Code of Civil Procedure section 391(b) clearly states – Vexatious litigant requires in a 7-year period maintained in propria persona at least 5 litigations other than small claims court that has been finally determined adversely to the person. I have exactly 0 cases that fall into this classification. I have testimony from Mr. Toepel via transcripts of numerous attempts to mislead the judge to declare me a vexatious litigant
    - he used this order to criminally cause issues for me and still completely lock me out of communication and the ability to fight for my rights to fatherhood he helps take from me by grossly misleading to the court on every occasion he attended
    - Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and he tried to seek a restraining order against flyer distribution which is my 1^st amendment rights to send out regarding information that is factual news about members of the community (judge denied him)
      He attempts to get restraining orders one for himself and one for his client he received both under a complete lie and false pretenses. He misleads the court about the physical danger he and his client were in. Never once did I threaten their physical safety however I did exercise my 1^st amendment rights, my freedom of speech allows me to complain on Google Reveiws, Yelp, and any supervisory person incharge of either their license of them if they are in commission of a violation of their sworn duties. I cannot be prevent or punished from complaining unless they are fake or false. He also told the court that he will communicate with me, as I am PRO PER, for legal matters only if the judge issues the restraining order, he issued it and I tried communicating over 50 times via email and voice message to no avail. He lied to the issuing judge and used this order to criminally cause issues for me and still completely lock me out of communication and the ability to fight for my rights to fatherhood he helps take from me by grossly misleading to the court on every occasion he attended
      Rule 5-200 provides that an attorney will present in front of the court using only those means that are consistent with the truth and shall not act to mislead the judge, judicial officer or jury through a false statement of the law or fact, nor shall the attorney intentionally misquote a source or knowingly cite invalid authority.
      Cal. Rule of Prof. Conduct 5-200 provides that “[i]n presenting a matter to a tribunal, a member: (b) shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” See also Mendez v. Superior Court, 162 Cal. App.4th 827 (2009) (observing that “‘“ [c]ounsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.”’”)
      Id. at Rule 5-200. For a discussion of the duty of candor, and its application in questions about witnesses, client perjury, and citing authority, see Wendy Patrick Mazzarella, Lawyer’s Duty of Candor: Zealous representation can lead attorneys down a slippery slope right up to the ethical edge, CALIFORNIA BAR JOURNAL (April 2007), available at https://archive.calbar.ca.gov/archive/Archive.aspx?articleId=84844&categoryId=84645&month=4&year=2007If you are reading this in print and the link is too hard I have shortened it with a link shortening service by TINYURL in which will redirect you too the actual CALBAR link above https://tinyurl.com/truthcalbarCal. Rules Prof. Conduct, 5-200.
      People v. Davis, 48 Cal.2d 241, 257 (1957); In re Branch, 70 Cal.2d 200, 210-211 (1969); Cal. Penal Code § 127. “Every person who willfully procures another person to commit perjury is guilty of subornation of perjury. . . .” and may be punished as if he had perjured himself, which includes a prison term of two, three or four years. Cal. Penal Code §§ 126-27. 475 U.S. 157 (where defendant, in presenting claim of self-defense shortly before trial that he’d seen something metallic in the victim’s hand and told his attorney that “[i]f I don’t say I saw a gun, I’m dead”, the defendant did not render ineffective assistance of counsel when he told his client he would tell the court and withdraw as his attorney if the client so perjured himself; the client did not present the perjured testimony as was convicted).
      Nix, supra 475 U.S. at 169-70.
      People v. Johnson, 62 Cal.App.4th 608 (1998) (finding it error when attorney told court he had an “ethical conflict” calling him as a witness and the court prevented the defendant from testifying).
      Cal. Rules Prof. Conduct 3-310(B)(4) provides that an attorney can’t accept or continue representation of a client without providing written disclosure when has or has had legal, business, financial or professional interest in the subject matter of the representation.
      ABA Model Rules 4.1(a) (2008).
      ABA Model Rules 4.1 cmt. 2 (2008).
      Cal. Evid. Code § 1126. 17 ABA Model Rules 3.3(a)(2) (2008).

26 U.S. Code § 7206 – Fraud and false statements learn at Cornell Lawhere
perjury when Paul Toepel attorney of law perjured himself in court Perjury – California Penal Code 118 PC describes perjury as knowingly providing false testimony while under oath, which is a felony offense punishable by up to four years in jail.
CALIFORNIA ATTORNEY MISCONDUCT LAW
State Bar Court decision, In the Matter of Maloney and Virsik:
“[The attorneys] committed acts of moral turpitude in wilful violation of section 6106 by knowingly making repeated misrepresentations to the Superior Court. It is well established that acts of moral turpitude include an attorney’s false or misleading statements to a court or tribunal…The actual intent to deceive is not necessary…Acts of moral turpitude include concealment as well as affirmative misrepresentations…
[N]o distinction can be drawn among concealment, half-truth, and false statement of fact…Also, it is not necessary that [the attorneys] actually succeeded in perpetrating a fraud on the court…These [court] pleadings were permeated with half-truths, omissions, and outright misstatements of fact and law. The Supreme Court has denounced such misleading conduct and has not hesitated to impose discipline in such cases.”
Lawyers have always had a duty to be honest and truthful pursuant to general ethical principles, as well as the State Bar Act. The newest version of the Rules of Professional Conduct, effective November 1, 2018, provides more specific guidance to lawyers relative to this duty. Rules 1.2.1, 1.6, 3.4, 4.1, 4.2, 4.3,7.1 through 7.5, and 8.4 are all implicated in this duty, as well as Business & Professions Code (“B&P”) sections 6068(d), 6106, and 6128, among others. This discussion will focus on the B&P Code sections, violations of which constitute cause for disbarment or other State Bar sanction, including but not limited to suspension, fines, and re-taking the Professional Responsibility examination.
Lawyers are required to be truthful not only in dealing with the court and parties in litigation, but also in transactional matters and document preparation. Violations by a lawyer of these requirements can result in not only liability in tort — to one’s own client as well as opposing parties and counsel — but also in State Bar discipline.
The B&P Code is the source that allows the State Bar to prosecute lawyers for violations of ethical requirements, and section 6068 contains a long list of an attorney’s duties: “It is the duty of an attorney to do all of the following: …

(d) to employ, for the purpose of meeting the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judgeor any judicial officer by an artifice or false statement of fact or law. (Emphasis added.)
Opposing lawyers, as “officers of the court”, are duty-bound to not only tell the truth, but not to omit information that would cause the court or opposing counsel to be misled. This applies not only to litigated matters, but to “all causes confided to him or her”. See Shafer v. Berger, Kahn, et al. (2003) 107 Cal.App.4^th 54 for a lengthy discussion of attorney misrepresentations which were determined to be fraudulent, including statements made by counsel during settlement negotiations.

MALICIOU$ PRO$ECUTOR$ = OCDA OFFICE THE WHOLE THING IS OFF

CHILD ENDANGERMENT, FAILURE TO ACT MALICIOUS PROSECUTION AS WELL

Never helping Me or My son with a bonified Child Sex Crime of PC 288 and PC 288.2

i still have the APPLE BACKUP OF THE DEVICE WHICH CLEARLY HAS ALL THE PHONE CALLS AND TEXTS BETWEEN ME AND MY SON ON HIS PRIMARY COMMUNICATION DEVICE THAT I ALSO FOUND HIS ADULT BROTHER DICK ALL OVER THAT WERE TAKEN IN PUBLIC PARKS. CAITLYN IS SO DUMB OF A CUNT SHE THOUGHT I WAS REPORTING THE CRIME OF DICK PICS IN A PARK! WOW DUMB CUNT YOU WERE TOLD THAT THEY WERE DICK PICS ON MY SON’S PHONE THE LOCATION TAKEN DOES NOT MATTER, THAT CRIME WOULD HAVE BEEN INDECENT EXPOSURE REQUIRING A VICTIM IN THE PARK TO REPORT THAT MISDEMEANOR. I WAS NOT REPORTING THAT DUMB CUNT! I WAS REPORTING THE FACT THE PHOTOS WERE FOUND ON MY SONS PHONE, HE DOES NOT NEED TO SEE THEM WITH HIS EYES FOR THE CRIME TO HAVE BEEN COMITTED. THE MERE TAKING OF MY SONS PRIMARY COMMUNITCATION DEVICE , TAKING SAID BORROWED/STOLEN PHONE AS AN ADULT TO A PARK TO PHOTO HIS COCK AND DO THIS OVER A MULTITUDE OF TIMES, DAYS, AND LOCATIONS WOULD, MEANWHILE MY SON HAS RECEIVED THE PHONE BACK MANY TIMES WHERE HE PROCEEDS TO TEXT, CALL ME AND USE THE PHOTO APP FOR HIS POWN PHOTOS WHERE I CAN SEE HIS PHOTOS IN BETWEEN ADULT DICK PHOTOS

YOU FAILED TO PROTECT MY MINOR SON, THE CRIME WAS COMMITTED Never helping Me or My son with a bonified Child Sex Crime of PC 288 and PC 288.2

YOU THEN BECAME A VINDICTIVE CUNT AS ALL WORTHLESS DUMB WOMEN ALWAYS DO, THEN YOU GOT SOME LOW BALL BETA MALE TO HELP YOU PUT A CASE ON ME AND YOUR CLUCK WAS BRADBURY THE MALICOUS IDIOT WHO IS CAPTAIN SAVE A BLONDE DUMB CUNT HOE!

DA Caitlyn Harrington & Detective Jason Forgash & Officer Montano & a Watch commander (all recorded by me) did this to me! She is the “dumb worthless young wet behind the ear cunt” I called her, SHE IS SO DUMB she puts it in her 653(m) vindictive prosecution of me that she never answered my complaint of Gregory and his dick pics on my sons phone because their office is now vindictively prosecuting me for Montano the lying pig that not only put a temporary restraining order for Marcia (baby mama) he lied and said he served me, but he did not, i never lived with Marcia. I lived at the time in Santa Clarita. Then this Dbag Montano is one of the same officers sent to investigate DICK PICS ON MY SONS PHONE, which as him being in officer in both instances one for the mother one against the mother and no help to me is proof of bias as well. read all their reports….! Marcia ask LHPD to let her know if I call them (LHPD) to report anything at which in the report the officer in one of Marcia’s complaints has a “We told her we would notify her” wow so she gets warnings calls from LHPD when I call to report her violating the court order and allowing the sex offender in the home. Huntleman can’t even honor Judge’s stay away orders protecting my son from a wanted sex offender. He also does not arrest sex offenders with fugitve bench warrants as he is too insubordinate and incapable of being able and apt to carry out his duty as a sworn officer of the constitution first, then federal law, the state law

424 F.2d 1021 US v. Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.

YOU ARE BEYOND MALICIOUS AND INCOMPETANT OF LAW AND THE CONSTITUTION

An attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ” An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well– 1 Cal. Rules Prof. Conduct, Rule 1- 400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964); Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); see also Coulello v. State of California, 45 Cal.2d 57 (1955); Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code
6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, bur den, delay or violate legal rights. 5 Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409,483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

State laws do not limit or guide their decisions. Ultimately their job is to ensure justice is being delivered and crime is kept off the streets. Objectives: Prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty. Innocent until proven guilty.

PENAL CODE – PEN 1096. PART 2. OF CRIMINAL PROCEDURE [681 – 1620] ( Part 2 enacted 1872. )
TITLE 7. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT [1065 – 1188] ( Title 7 enacted 1872. )
CHAPTER 2. The Trial [1093 – 1130] ( Chapter 2 enacted 1872. )

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt.

There is no statutory standard to be used by the District Attorney for filing charges against a suspect arrested by the Police Department. However, the San Francisco District Attorney”s Office does operate under charging standards established by the California District Attorney”s Association. According to the District Attorney”s Office, the DA”s interpretation of these standards is equivalent to the provisions contained in Penal Code Section 1096, which states that the guilt of a suspect must be proven beyond a reasonable doubt.

Although PC Section 1096 is intended to be used as a jury instruction when a criminal trial begins, in San Francisco, the DA applies this standard much earlier in the criminal justice process. As such, at the point at which formal charges are made against the suspect, the guilt of the suspect must be proven to the DA beyond a reasonable doubt.

As a result, prosecutable cases are possibly being discharged by the DA because they do not meet this high standard. Other California District Attorney”s Offices apply a less rigorous standard in making the determination whether or not to file charges. As such, as a policy decision, the District Attorney may wish to consider establishing a more flexible policy for accepting cases for prosecution.

Policy Option

The District Attorney should:

1.4.1 Consider establishing a more flexible policy for accepting cases from the Police Department for prosecution.

TO LEARN MORE ABOUT THE PROSECORS ROLE AND DUTY TO THE PEOPLE WHO ARE SOVEREIGN AND…..
THEY ARE MERE SERVANTS TO
WE CANNOT LET IMMUNITY GO TO YOUR HEAD YOU SERVE US YOU ARE TO BE RESPONSIBLE WITH YOUR POWER WE THE PEOPLE ALLOW YOU TO HAVE!

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Little known fact$:

Can the District Attorney’s Texts Be Used As Evidence?

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

Other Pro$ecutor Caselaw:

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City, of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer. The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. § 1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause. The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.) held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S. _______ (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6 (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

https://steeringlaw.com/police-misconduct-articles/can-you-sue-the-police-for-malicious-criminal-prosecutions/

Constitutional Tort Law and Legal Definition

Constitutional torts are violation of one’s constitutional rights by a government servant. Constitutional tort actions are brought under 42 USCS § 1983 against government employees seeking damages for the violation of federal constitutional right, particularly those arising under the Fourteenth Amendment and the Bill of Rights.

42 USCS § 1983 reads as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

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Prosecutor’s Obligation to Disclose Exculpatory Evidence

The Truth News — Fri, 26 Jan 2024 16:57:52 +0000

What is Exculpatory Evidence? – Definition, Examples & Importance

Exculpatory evidence is any evidence in a criminal trial that supports the idea that the defendant is not guilty. In this lesson, we’ll discuss what kind of evidence is considered exculpatory, plus examples; we’ll also examine how important it is in the legal system. Updated: 09/08/2021

Exculpatory: Definition

A convicted killer is out on parole and he kills again. Witnesses saw him thrust a knife in his victim and run out of an alley. They positively identified him in a lineup, and his DNA is found on the knife. After a guilty verdict, the defense moves to have the verdict set aside because the prosecutor discovered evidence that the killer was still logged in at work when the murder took place. Is that right?

Exculpatory evidence is evidence in a criminal trial that tends to show that the defendant is not guilty. ”Exculpatory” comes from the word ”exculpate,” which comes from two Latin words ex, ”from,” and culpa, ”blame.”

It typically works like this:

A defendant is charged with a crime, and both the prosecutor and defense attorney gather evidence to each make their case. If the prosecutor comes across any evidence that tends to show the defendant didn’t commit the crime, he or she has to turn it over to the defense. If the prosecutor neglects this step, then the case can be dismissed, retried, or even the defendant found not guilty.

Exculpatory Evidence

In Brady v. Maryland (1963), the Supreme Court held that exculpatory evidence withheld in a criminal trial can result in a re-hearing of the case. In this case, Brady claimed his friend, who had committed the murder with Brady, did the actual killing. Brady was convicted for murder and sentenced to death, but the prosecutor failed to tell a jury that the friend had already confessed to the killing.

The court stated that the jury needed to hear that evidence because it could assist them in their decision regarding Brady. From then on, any exculpatory evidence the prosecutor or law enforcement has is called Brady material, the requirement to turn Brady material over to the defense is called the Brady rule. Brady got a new hearing that resulted in a lifetime sentence instead.

But what other kind of evidence is exculpatory? The law says ”any evidence” that tends to show innocence of the defendant is included. This can include crime scene evidence, witness testimony, DNA results, and medical records.

Exculpatory Enough

If you’re a prosecutor or a police detective, how do you know which evidence is exculpatory enough? For example, if the defendant claims he was 300 miles away during the time of the murder, and he was driving a red 2003 Ford 150 pickup with a front decorative plate that says ”Hog Wild,” do you have to turn over all camera images that show a red Ford pickup getting gas or going through a toll booth?

No. In U.S. v. Bagely (1985), the court laid out the legal standard on whether evidence is Brady material. The defense has to show that the inclusion of the evidence might have reasonably resulted in a different outcome. So it wouldn’t be reasonable to show every red Ford pickup found hundreds of miles away at that time, but what about that picture of a red 2003 Ford 150 pickup with a front decorative plate that said ”Hog Wild”? Since it would be reasonable that this would change the outcome of the trial, it’s Brady material. source

The Prosecution’s Duty to Disclose Exculpatory Evidence

Criminal trials are serious business, and a defendant’s rights are enshrined in law. You have a right to due process. The prosecution is required to play fairly. Playing fairly means if the prosecution has evidence that you didn’t commit the offense charged or evidence that would reasonably be expected to help your defense, the prosecution must disclose that evidence to your criminal defense lawyer.

The Brady rule

The Brady rule refers to a Supreme Court case called Brady v. Maryland. The case dates back to 1963, and is a due process case under the 14^th Amendment to the US Constitution. The Supreme Court ruled that when a prosecutor intentionally withholds exculpatory and material evidence from a defendant, that act violates the defendant’s due process rights. The withholding of the information is a “deliberate deception of court and jury.”

In Brady, two co-defendants were charged with murder while committing a robbery. Prior to the trial of the co-defendant Brady, the other co-defendant confessed to the murder. Even though the defense lawyers specifically asked for any statements by the co-defendant, the prosecutor intentionally did not disclose this crucial piece of evidence – the confession. Brady was found guilty and sentenced to death before his lawyer discovered the confession.

The US Supreme Court, based on this willful nondisclosure, vacated Brady’s sentence and ordered a new sentencing hearing. Today, the disclosure requirements imposed by Brady are well-known though prosecutors sometimes try to argue the evidence isn’t “material.”

Giglio vs. US.

In a more recent case, Giglio v. United States, the Supreme Court applied the Brady doctrine in a case involving the lack of credibility of a co-defendant. The prosecutor failed to disclose that a co-conspirator received immunity from prosecution in return for the co-conspirator’s testimony. The critical point is that the Supreme Court reasoned that the credibility of a witness is an exculpatory factor.

Experienced criminal defense lawyers routinely ask the prosecution for all exculpatory evidence. Exactly what evidence is exculpatory, what evidence affects credibility, and what evidence is material is decided on a case-by-case basis. source

Prosecutor’s Obligation to Disclose Exculpatory Evidence

The Brady case: the prosecutor must disclose exculpatory evidence

In a case called Brady, the Supreme Court held that the due process clause obligates the prosecution to disclose to the defense any material evidence favorable on the issues of guilt or punishment. Evidence is exculpatory if it tends to disprove your guilt, whether by:

Showing your innocence.
Undermining the credibility of government witnesses.
Tending to mitigate the punishment.

This obligation (referred to as a Brady obligation) extends beyond searching the prosecutor’s own file to producing information possessed by police agencies which participated in the investigation or prosecution. The prosecution team will be charged with knowledge of a police officer’s criminality where the officer was part of the team, even if the officer concealed that criminal conduct from the prosecutor.

Arguing that the evidence is material

The materiality requirement is a constant obstacle to criminal defense attorneys in obtaining Brady disclosures. Evidence “is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome would have been different.” Most prosecutors, having filed charges and thus concluded that you are guilty, have difficulty seeing a probability that a piece of evidence will change the outcome. There are two arguments that your criminal defense attorney can use to approach the prosecutor’s mindset:

The pre-trial context requires the prosecutor to err on the side of disclosure. The Supreme Court created the Brady standard of materiality in the context of appeals, evaluating the significance of the evidence against the totality of the trial evidence. No one can make this evaluation before trial. The prosecutor cannot predict with certainty how his own evidence will go in, much less the defense side of the case, and what impact the undisclosed evidence will have on the case as a whole. Therefore, a prosecutor should err on the side of disclosure.
Educate the prosecutor about the defense. Your attorney can educate the prosecutor about the defense so that he understands how a piece of evidence fits into an attack on his case. Although this approach risks surrendering the element of surprise, most defenses are apparent to any intelligent prosecutor. Most Brady inquiries seek information about the prosecutor’s own evidence and witnesses, such as cooperating witnesses’ uncharged misconduct, their initial exculpation of the defendant, or their lies to the prosecutor about their own culpability. In the usual case, you and your attorney lack any access to those witnesses and information. Therefore, you lose little by revealing to the prosecutor that you have heard that such information exists about the prosecutor’s own witnesses.

Demanding Brady material

Under the federal Brady standard, the same test of materiality applies whether the defense made a general, a specific, or even no request. However, some states have held that under their state constitutions a specific Brady demand triggers a less demanding standard of materiality. Nonetheless, in any jurisdiction your attorney might combine comprehensive Brady demands with more specific ones. The more specific the demand, the more likely you are to get relief from the prosecutor, the trial court, or an appellate court. Prosecutors often may not realize how a particular piece of evidence might fit into a defense. With a general demand a trial court will accept the prosecutor’s assurance that he has searched his file and found nothing exculpatory. However, when ruling on a specific request, the court may demand that the prosecutor answer whether or not he looked for and found that particular item.

Timing of Brady disclosures

Prosecutors frequently resist early disclosure of Brady impeaching material on the grounds that statutes forbid a court from ordering disclosure of a witness’s statements prior to trial. However, a number of courts have ruled that such statutes do not control the timing of Brady disclosures. If the material is exculpatory, it must be disclosed sufficiently in advance of trial to be useful to the defense, and the trial court may order prompt pre-trial disclosure.

Rules of Professional Conduct

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently clarified that a Rule of Professional Conduct imposes duties on prosecutors far beyond the constitutional minimum. In particular:

A prosecutor must disclose any information favorable to the defense without regard to its impact or the prosecutor’s assessment of its credibility. “Nothing in the rule suggests a de minimis exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unreliable.”
The ethical duty extends beyond admissible evidence to information that may lead to exculpatory evidence.
Evidence is exculpatory and must be disclosed if it supports any defense, whether or not one of factual innocence, and if it merely lessens the degree of guilt.
The disclosure must be early and full enough to enable the defendant to conduct a thorough investigation and to evaluate whether or not to plead guilty.
Supervisory prosecutors must supervise and train their line assistants in this obligation, including ordering subordinates to commit to writing favorable information conveyed orally and implementing procedures so that prosecutors communicate favorable information to the colleague responsible for disclosure.

Similarly, the U.S. Department of Justice promulgated Brady policies that mandate procedures beyond the constitutional minimum:

Prosecutors must conduct a thorough search of investigative agency case files, informant files, and, in some situations, the files of civil regulatory agencies, to discover and preserve information favorable to the defense.
Prosecutors and agents have an obligation to memorialize all witness interviews (rather than, as is common, create a summary report at the end of several interviews).
Information that “is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense” or that “casts a substantial doubt upon the accuracy of any evidence . . . or might have a significant bearing on the admissibility of prosecution evidence” must be disclosed “regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal . . .”
The disclosure obligation extends to “information” regardless of whether it is admissible evidence.
The information must be disclosed “reasonably promptly after it is discovered.”

A production order allows sanctions

Your criminal defense attorney may ask the court to enter an order that the prosecutor produce all Brady material by a certain time. An order for pre-trial disclosure empowers the trial court to impose sterner sanctions than it can for tardy disclosure of Brady material where no order compelled its pre-trial disclosure. Sanctions may include continuances, preclusion of evidence, mistrials and new trials. A dismissal without prejudice is appropriate only in the case of willful prosecutorial misconduct and severe prejudice to the defense that cannot otherwise be remedied. source

Brady rule

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The Brady rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. A “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

Further, in cases subsequent to Brady, the Supreme Court has eliminated the requirement for a defendant to have requested a favorable information, stating that the Prosecution has a constitutional duty to disclose, that is triggered by the potential impact of favorable but undisclosed evidence See Kyles v. Whitley 514 U.S. 419, 434 (1995) and United States. v. Bagley, 473 U.S. 667 (1985).

The defendant bears the burden to prove that the undisclosed evidence was both material and favorable. In other words, the defendant must prove that there is a “reasonable probability” that the outcome of the trial would have been different, had the evidence been disclosed by the prosecutor. See Kyles, 514 U.S. at 433 (1995). Bagley and Kyles Court further defined the “materiality” standard, outlining the four aspects of materiality. First, the “reasonable probability” of a different result is not a question of whether the defendant would more likely than not have received a different verdict with the evidence, but whether the government’s evidentiary suppression undermines the confidence in the outcome of the trial. The second aspect is that it is not a sufficiency of evidence test, and the defendant only has to show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict. Third aspect is that there is no need for a harmless error review, because a Brady violation, by definition, could not be treated as a harmless error. Fourth and final aspect of materiality the Kyles Court stressed was that the suppressed evidence must be considered collective, not item by item, looking at the cumulative effect to determine whether a reasonable probability is reached. See Kyles, 514 U.S. at 433-438. source

9-5.000 – ISSUES RELATED TO DISCOVERY, TRIALS, AND OTHER PROCEEDINGS

9-5.001	Policy Regarding Disclosure of Exculpatory and Impeachment Information
9-5.002	Criminal Discovery
9-5.003	Criminal Discovery Involving Forensic Evidence and Experts
9-5.004	Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases
9-5.100	Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)
9-5.110	Testimony of FBI Laboratory Examiners
9-5.150	Authorization to Close Judicial Proceedings to Members of the Press and Public

9-5.001 – POLICY REGARDING DISCLOSURE OF EXCULPATORY AND IMPEACHMENT INFORMATION

Purpose. Consistent with applicable federal statutes, rules, and case law, the policy set forth here is intended to promote regularity in disclosure practices, through the reasoned and guided exercise of prosecutorial judgment and discretion by attorneys for the government, with respect to the government’s obligation both to disclose exculpatory and impeachment information to criminal defendants and to seek a just result in every case. The policy is intended to ensure timely disclosure of an appropriate scope of exculpatory and impeachment information so as to ensure that trials are fair. The policy, however, recognizes that other interests, such as witness security and national security, are also critically important, see JM 9-21.000, and that if disclosure prior to trial might jeopardize these interests, disclosure may be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act). This policy is not a substitute for researching the legal issues that may arise in an individual case. Additionally, this policy does not alter or supersede the policy that requires prosecutors to disclose “substantial evidence that directly negates the guilt of a subject of the investigation” to the grand jury before seeking an indictment, see JM 9-11.233.
Constitutional obligation to ensure a fair trial and disclose material exculpatory and impeachment evidence. Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). Neither the Constitution nor this policy, however, creates a general discovery right for trial preparation or plea negotiations. U.S. v. Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
1. Materiality and Admissibility. Exculpatory and impeachment evidence is material to a finding of guilt—and thus the Constitution requires disclosure—when there is a reasonable probability that effective use of the evidence will result in an acquittal. United States v. Bagley, 475 U.S. 667, 676 (1985). Recognizing that it is sometimes difficult to assess the materiality of evidence before trial, prosecutors generally must take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence. Kyles, 514 U.S. at 439. While ordinarily, evidence that would not be admissible at trial need not be disclosed, this policy encourages prosecutors to err on the side of disclosure if admissibility is a close question.
2. The prosecution team. It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all the members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.Kyles, 514 U.S. at 437.
Disclosure of exculpatory and impeachment information beyond that which is constitutionally and legally required. Department policy recognizes that a fair trial will often include examination of relevant exculpatory or impeachment information that is significantly probative of the issues before the court but that may not, on its own, result in an acquittal or, as is often colloquially expressed, make the difference between guilt and innocence. As a result, this policy requires disclosure by prosecutors of information beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999). The policy recognizes, however, that a trial should not involve the consideration of information which is irrelevant or not significantly probative of the issues before the court and should not involve spurious issues or arguments which serve to divert the trial process from examining the genuine issues. Information that goes only to such matters does not advance the purpose of a trial and thus is not subject to disclosure.
1. Additional exculpatory information that must be disclosed. A prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.
2. Additional impeachment information that must be disclosed. A prosecutor must disclose information that either casts a substantial doubt upon the accuracy of any evidence—including but not limited to witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence. This information must be disclosed regardless of whether it is likely to make the difference between conviction and acquittal of the defendant for a charged crime.
3. Information. Unlike the requirements of Brady and its progeny, which focus on evidence, the disclosure requirement of this section applies to information regardless of whether the information subject to disclosure would itself constitute admissible evidence.
4. Cumulative impact of items of information. While items of information viewed in isolation may not reasonably be seen as meeting the standards outlined in paragraphs 1 and 2 above, several items together can have such an effect. If this is the case, all such items must be disclosed.
Timing of disclosure. Due process requires that disclosure of exculpatory and impeachment evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial. See, e.g. Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993). In most cases, the disclosures required by the Constitution and this policy will be made in advance of trial.
1. Exculpatory information. Exculpatory information must be disclosed reasonably promptly after it is discovered. This policy recognizes that exculpatory information that includes classified or otherwise sensitive national security material may require certain protective measures that may cause disclosure to be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act).
2. Impeachment information. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. In some cases, however, a prosecutor may have to balance the goals of early disclosure against other significant interests—such as witness security and national security—and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.
3. Exculpatory or impeachment information casting doubt upon sentencing factors. Exculpatory and impeachment information that casts doubt upon proof of an aggravating factor at sentencing, but that does not relate to proof of guilt, must be disclosed no later than the court’s initial presentence investigation.
4. Supervisory approval and notice to the defendant. A prosecutor must obtain supervisory approval not to disclose impeachment information before trial or not to disclose exculpatory information reasonably promptly because of its classified nature. Upon such approval, notice must be provided to the defendant of the time and manner by which disclosure of the exculpatory or impeachment information will be made.
Training. All new federal prosecutors assigned to criminal matters and cases shall complete, within 12 months of employment, designated training through the Office of Legal Education on Brady/Giglio, and general disclosure obligations and policies. All federal prosecutors assigned to criminal matters and cases shall annually complete two hours of training on the government’s disclosure obligations and policies. This annual training shall be provided by the Office of Legal Education or, alternatively, any United States Attorney’s Office or DOJ component.
Comment. This policy establishes guidelines for the exercise of judgment and discretion by attorneys for the government in determining what information to disclose to a criminal defendant pursuant to the government’s disclosure obligation as set out in Brady v. Maryland and Giglio v. United States and its obligation to seek justice in every case. This policy also establishes training requirements for federal prosecutors in this area. As the Supreme Court has explained, disclosure is constitutionally required when evidence in the possession of the prosecutor or prosecution team is material to guilt, innocence or punishment. Under this policy, the government’s disclosure will exceed its constitutional obligations. Thus, this policy encourages prosecutors to err on the side of disclosure in close questions of materiality and identifies standards that favor greater disclosure in advance of trial through the production of exculpatory information that is inconsistent with any element of any charged crime and impeachment information that casts a substantial doubt upon either the accuracy of any evidence the government intends to rely on to prove an element of any charged crime or that might have a significant bearing on the admissibility of prosecution evidence. This expanded disclosure policy, however, does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies. Where it is unclear whether evidence or information should be disclosed, prosecutors are encouraged to reveal such information to defendants or to the court for inspection in camera and, where applicable, seek a protective order from the Court. By doing so, prosecutors will ensure confidence in fair trials and verdicts. The United States Attorneys’ Offices and Department components involved in criminal prosecutions are also encouraged to undertake periodic training for paralegals and to cooperate with and assist law enforcement agencies in providing education and training to agency personnel concerning the government’s disclosure obligations and developments in relevant case law.[updated January 2020] [cited in JM 9-5.100]

9-5.002- CRIMINAL DISCOVERY

The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). Section 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment information. In order to meet discovery obligations in a given case, Federal prosecutors must be familiar with these authorities and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet their discovery obligations in each case. Toward that end, the Department has adopted the policies for prosecutors regarding criminal discovery set forth below. These policies are intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice. The policies are subject to legal precedent, court orders, and local rules.

By following the steps described below and being familiar with laws and policies regarding discovery obligations, prosecutors are more likely to meet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case. Prosecutors are reminded to consult with the designated criminal discovery coordinator in their office when they have questions about the scope of their discovery obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact the Professional Responsibility Advisory Office when they have questions about those or any other ethical responsibilities.

Step I: Gathering and Reviewing Discoverable Information

“Discovery” or “discoverable information,” and the duty to search for it, includes information required to be disclosed by Fed.R.Crim.P. 16 and 26.2, the Jencks Act, Brady, and Giglio, and additional information disclosable pursuant to this policy.

A. Where to look: The Prosecution Team

JM 9-5.001 states:

It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecutionteam. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.

This search duty also extends to information prosecutors are required to disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.

In most cases, “the prosecution team” will include the agents and law enforcement officers within the relevant district working on the case. In multi-district investigations, investigations that include both Assistant United States Attorneys and prosecutors from a Department litigating component or other United States Attorney’s Office (USAO), and parallel criminal and civil proceedings, this definition will necessarily be adjusted to fit the circumstances. In addition, in complex cases that involve parallel proceedings with regulatory agencies (SEC, FDIC, EPA, etc.), or other non-criminal investigative or intelligence agencies, the prosecutor should consider whether the relationship with the other agency is close enough to make it part of the prosecution team for discovery purposes.

Some factors to be considered in determining whether to review potentially discoverable information from another federal agency include:

Whether the prosecutor and the agency conducted a joint investigation or shared resources related to investigating the case;
Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team;
Whether the prosecutor knows of and has access to discoverable information held by the agency;
Whether the prosecutor has obtained other information and/or evidence from the agency;
The degree to which information gathered by the prosecutor has been shared with the agency;
Whether a member of an agency has been made a Special Assistant United States Attorney;
The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and
The degree to which the interest’s of the parties in parallel proceedings diverge such that information gathered by one party is not relevant to the other party.

Many cases arise out of investigations conducted by multi-agency task forces or otherwise involving state law enforcement agencies. In such cases, prosecutors should consider (1) whether state or local agents are working on behalf of the prosecutor or are under the prosecutor’s control; (2) the extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources; and (3) whether the prosecutor has ready access to the evidence. Courts will generally evaluate the role of a state or local law enforcement agency on a case-by-case basis. Therefore, prosecutors should make sure they understand the law in their circuit and their office’s practice regarding discovery in cases in which a state or local agency participated in the investigation or on a task force that conducted the investigation.

Prosecutors are encouraged to err on the side of inclusiveness when identifying the members of the prosecution team for discovery purposes. Carefully considered efforts to locate discoverable information are more likely to avoid future litigation over Brady and Giglio issues and avoid surprises at trial.

Although the considerations set forth above generally apply in the context of national

security investigations and prosecutions, special complexities arise in that context. Prosecutors should begin considering potential discovery obligations early in an investigation that has national security implications and should also carefully evaluate their discovery obligations prior to filing charges. This evaluation should consider circuit and district precedent and include consultation with national security experts in their own offices and in the National Security Division.

B. What to Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed. The review process should cover the following areas;

The Investigative Agency’s Files: With respect to Department of Justice law enforcement agencies, with limited exceptions, the prosecutor should be granted access to the substantive case file and any other file or document the prosecutor has reason to believe may contain discoverable information related to the matter being prosecuted.[1] Therefore, the prosecutor can personally review the file or documents or may choose to request production of potentially discoverable materials from the case agents. With respect to outside agencies, the prosecutor should request access to files and/or production of all potentially discoverable material. The investigative agency’s entire investigative file, including documents such as FBI Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable information. If such information is contained in a document that the agency deems to be an “internal” document such as an email, an insert, an administrative document, or an EC, it may not be necessary to produce the internal document, but it will be necessary to produce all of the discoverable information contained in it. Prosecutors should also discuss with the investigative agency whether files from other investigations or non-investigative files such as confidential source files might contain discoverable information. Those additional files or relevant portions thereof should also be reviewed as necessary.
Confidential informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files: The credibility of cooperating witnesses or informants will always be at issue if they testify during a trial. Therefore, prosecutors are entitled to access to the agency file for each testifying CI, CW, CHS, or CS. Those files should be reviewed for discoverable information and copies made of relevant portions for discovery purposes. The entire informant/source file, not just the portion relating to the current case, including all proffer, immunity and other agreements, validation assessments, payment information, and other potential witness impeachment information should be included within this review.
If a prosecutor believes that the circumstances of the case warrant review of a non-testifying source’s file, the prosecutor should follow the agency’s procedures for requesting the review of such a file.
Prosecutors should take steps to protect the non-discoverable, sensitive information found within a CI, CW, CHS, or CS file. Further, prosecutors should consider whether discovery obligations arising from the review of CI, CW, CHS, and CS files may be fully discharged while better protecting government or witness interests such as security or privacy via a summary letter to defense counsel rather than producing the record in its entirety.
Prosecutors must always be mindful of security issues that may arise with respect to disclosures from confidential source files. Prior to disclosure, prosecutors should consult with the investigative agency to evaluate any such risks and to develop a strategy for addressing those risks or minimizing them as much as possible, consistent with discovery obligations
Evidence and Information Gathered During the Investigation: Generally, all evidence and information gathered during the investigation should be reviewed, including anything obtained during searches or via subpoenas, etc. As discussed more fully below in Step 2, in cases involving a large volume of potentially discoverable information, prosecutors may discharge their disclosure obligations by choosing to make the voluminous information available to the defense.
Document or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Civil Investigations: If a prosecutor has determined that a regulatory agency such as the SEC is a member of the prosecution team for purposes of defining discovery obligations, that agency’s files should be reviewed. Of course, if a regulatory agency is not part of the prosecution team but is conducting an administrative investigation or proceeding involving the same subject matter as a criminal investigation, prosecutors may very well want to ensure that those files are reviewed not only to locate discoverable information but to locate inculpatory information that may advance the criminal case. Where there is an ongoing parallel civil proceeding in which Department civil attorneys arc participating, such as a qui tam case, the civil case files should also be reviewed.
Substantive Case-Related Communications: “Substantive” case-related communications may contain discoverable information. Those communications that contain discoverable information should be maintained in the case file or otherwise preserved in a manner that associates them with the case or investigation. “Substantive” case-related communications are most likely to occur (1) among prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses and/or victims, and (3) between victim-witness coordinators and witnesses and/or victims. Such communications may be memorialized in emails, memoranda, or notes. “Substantive” communications include factual reports about investigative activity, factual discussions of the relative merits of evidence, factual information obtained during interviews or interactions with witnesses/victims, and factual issues relating to credibility. Communications involving case impressions or investigative or prosecutive strategies without more would not ordinarily be considered discoverable, but substantive case-related communications should be reviewed carefully to determine whether all or part of a communication (or the information contained therein) should be disclosed. Prosecutors should also remember that with few exceptions (see, e.g., Fed.R.Crim.P. 16(a)(I)(B)(ii)), the format of the information does not determine whether it is discoverable. For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure obligation.
Potential Giglio Information Relating to Law Enforcement Witnesses: Prosecutors should have candid conversations with the federal agents with whom they work regarding any potential Giglio issues, and they should follow the procedure established in JM 9-5.100 whenever necessary before calling the law enforcement employee as a witness. Prosecutors should be familiar with circuit and district court precedent and local practice regarding obtaining Giglio information from state and local law enforcement officers.
Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants: All potential Giglio information known by or in the possession of the prosecution team relating to non-law enforcement witnesses should be gathered and reviewed. That information includes, but is not limited to:

Prior inconsistent statements (possibly including inconsistent attorney proffers, see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008))
Statements or reports reflecting witness statement variations (see below)
Benefits provided to witnesses including:
- Dropped or reduced charges
- Immunity
- Expectations of downward departures or motions for reduction of sentence
- Assistance in a state or local criminal proceeding
- Considerations regarding forfeiture of assets
- Stays of deportation or other immigration status considerations
- S-Visas
- Monetary benefits
- Non-prosecution agreements
- Letters to other law enforcement officials (e.g. stale prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf
- Relocation assistance
- Consideration or benefits to culpable or at risk third-parties
Other known conditions that could affect the witness’s bias such as:
- Animosity toward defendant
- Animosity toward a group of which the defendant is a member or with which the defendant is affiliated
- Relationship with victim
- Known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor)
Prior acts under Fed.R.Evid. 608
Prior convictions under Fed.R.Evid. 609
Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events

Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews[2] should be memorialized by the agent.[3] Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue. If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.
1. Witness Statement Variations and the Duty to Disclose: Some witnesses’ statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.
2. Trial Preparation Meetings with Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of JM 9-5.001 even if the information is first disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness’s prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions of subparagraph (a) above.
3. Agent Notes: Agent notes should be reviewed if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview. Prosecutors should pay particular attention to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed.R.Crim.P. 16(a)(I)(A)-(C) or may themselves be discoverable under Fed.R.Crim.P. 16(a)(I)(B). See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6^th Cir. 2004) and United States v. Vaffee, 380 F.Supp.2d 11, 2-14 (D. Mass. 2005).

Step 2: Conducting the Review

Having gathered the information described above, prosecutors must ensure that the material is reviewed to identify discoverable information. It would be preferable if prosecutors could review the information themselves in every case, but such review is not always feasible or necessary. The prosecutor is ultimately responsible for compliance with discovery obligations. Accordingly, the prosecutor should develop a process for review of pertinent information to ensure that discoverable information is identified. Because the responsibility for compliance with discovery obligations rests with the prosecutor, the prosecutor’s decision about how to conduct this review is controlling. This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself. In cases involving voluminous evidence obtained from third parties, prosecutors should consider providing defense access to the voluminous documents to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence. Such broad disclosure may not be feasible in national security cases involving classified information.

Step 3: Making the Disclosures

The Department’s disclosure obligations are generally set forth in Fed.R.Crim.P. 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady, and Giglio (collectively referred to herein as “discovery obligations”). Prosecutors must familiarize themselves with each of these provisions and controlling case law that interprets these provisions. In addition, prosecutors should be aware that Section 9-5.001 details the Department’s policy regarding the disclosure of exculpatory and impeachment information and provides for broader disclosures than required by Brady and Giglio. Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth above.

Considerations Regarding the Scope and Timing of the Disclosures: Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. It also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations; protecting the trial from efforts at obstruction: protecting national security interests; investigative agency concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges; and other strategic considerations that enhance the likelihood of achieving a just result in a particular case. In most jurisdictions, reports of interview (ROIs) of testifying witnesses are not considered Jencks material unless the report reflects the statement of the witness substantially verbatim or the witness has adopted it. The Working Group determined that practices differ among the USAOs and the components regarding disclosure of ROIs of testifying witnesses. Prosecutors should be familiar with and comply with the practice of their offices.
Prosecutors should never describe the discovery being provided as “open file.” Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently omitted from production and the prosecutor will then have unintentionally misrepresented the scope of materials provided. Furthermore, because the concept of the “file” is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e.g., agent notes or internal memos, that the court may deem to have been part of the “file.”
When the disclosure obligations are not clear or when the considerations above conflict with the discovery obligations, prosecutors may seek a protective order from the court addressing the scope, timing, and form of disclosures.
Timing: Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. See JM 9-5.001. Section 9-5.001 also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistent with the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing.
Prosecutors should consult the local discovery rules for the district in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be produced without a request by the defendant and within a specified time frame, unless a court order has been entered delaying discovery, as is common in complex cases. Prosecutors must comply with these local rules, applicable case law, and any final court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial. In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in subparagraph A above. Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(1)(E) materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. 16(b)(1).
Discovery obligations are continuing, and prosecutors should always be alert to developments occurring up to and through trial of the case that may impact their discovery obligations and require disclosure of information that was previously not disclosed.
Form of Disclosure: There may be instances when it is not advisable to turn over discoverable information in its original form, such as when the disclosure would create security concerns or when such information is contained in attorney notes, internal agency documents, confidential source documents, Suspicious Activity Reports, etc. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, including particular language, where pertinent, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.

Step 4: Making a Record

One of the most important steps in the discovery process is keeping good records regarding disclosures. Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often the subject of litigation in criminal cases, keeping a record of the disclosures confines the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post-conviction relief, which are often filed long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps discussed above, and poor records can negate all of the work that went into taking the first three steps.

Comment: Compliance with discovery obligations is important for a number of reasons. First and foremost, however, such compliance will facilitate a fair and just result in every case, which is the Department’s singular goal in pursuing a criminal prosecution. This section does not and could not answer every discovery question because those obligations are often fact specific. However, prosecutors have at their disposal an array of resources intended to assist them in evaluating their discovery obligations including supervisors, discovery coordinators in each office, the Professional Responsibility Advisory Office, and online resources available on the Department’s intranet website, not to mention the experienced career prosecutors throughout the Department. And, additional resources are being developed through efforts that will be overseen by a full-time discovery expert who will be detailed to Washington from the field. By evaluating discovery obligations pursuant to the methodical and thoughtful approach set forth in this guidance and taking advantage of available resources, prosecutors are more likely to meet their discovery obligations in every case and in so doing achieve a just and final result in every criminal prosecution.

[1] Nothing in this section alters the Department’s Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses contained in JM §9-5.100.

[2] Interview” as used herein refers to a formal question and answer session with a potential witness conducted for the purpose of obtaining information pertinent to a matter or case. It does not include conversations with a potential witness for the purpose of scheduling or attending to other ministerial matters. However, potential witnesses may provide substantive information outside of a formal interview. Substantive, case-related communications are addressed above.

[3] In those instances in which an interview was audio or video recorded, further memorialization will generally not be necessary.

[added December 2017]

9-5.003 – CRIMINAL DISCOVERY INVOLVING FORENSIC EVIDENCE AND EXPERTS

Forensic science covers a variety of fields, including such specialties as DNA testing, chemistry, and ballistics and impression analysis, among others. As a general guiding rule, and allowing for the facts and circumstances of individual cases, prosecutors should provide broad discovery relating to forensic science evidence as outlined here. Disclosure of information relating to forensic science evidence in discovery does not mean that the Department concedes the admissibility of that information, which may be litigated simultaneously with or subsequent to disclosure.

The Duty to Disclose, Generally

The prosecution’s duty to disclose is generally governed by Federal Rules of Criminal Procedure 16 and 26.2, the Jencks Act (18 U.S.C. §3500), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In addition, JM 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment material.

Rule 16 of the Federal Rules of Criminal Procedure establishes three disclosure responsibilities for prosecutors that may be relevant to forensic evidence. First, under Fed.R.Crim.P. 16(a)(1)(F), the government must, upon request of the defense, turn over the results or reports of any scientific test or experiment (i) in the government’s possession, custody or control, (ii) that an attorney for the government knows or through due diligence could know, and (iii) that would be material to preparing the defense or that the government intends to use at trial. Second, under Fed. R. Crim. P. 16(a)(1)(G), if requested by the defense, the government must provide a written summary of any expert testimony the government intends to use at trial. At a minimum, this summary must include the witness’s opinions, the bases and reasons for those opinions, and the expert’s qualifications. Third, under Fed. R. Crim. P. 16(a)(1)(E), if requested by the defense, the government must produce documents and items material to preparing the defense that are in the possession, custody, or control of the government. This may extend to records documenting the tests performed, the maintenance and reliability of tools used to perform those tests, and/or the methodologies employed in those tests.

Both the Jencks Act and Brady/Giglio may also come into play in relation to forensic evidence. For example, a written statement (report, email, memo) by a testifying forensic witness may be subject to disclosure under the Jencks Act if it relates to the subject matter of his or her testimony. Information providing the defense with an avenue for challenging test results may be Brady/Giglio information that must be disclosed. And, for forensic witnesses employed by the government, Giglio information must be gathered from the employing agency and reviewed for possible disclosure. These are the minimum requirements, and the Department’s discovery policies call for disclosure beyond these thresholds.

The Duty to Disclose in Cases with Forensic Evidence and Experts

The Department’s policy to provide discovery over and above the minimum legal thresholds applies to cases with forensic evidence. Rule 16’s disclosure requirements – disclosing the results of scientific tests (16(a)(l)(F)), the witness’ written summary (16(a)(l)(G)), and documents and items material to preparing the defense (16(a)( l)(E)) – are often jointly satisfied when presenting expert forensic testimony, since disclosure of the test results, the bases for those results, and the expert’s qualifications will often provide all the necessary information material to preparation of the defense. But, depending on the complexity of the forensic evidence, or where multiple forensic tests have been performed, the process can be complicated because it may require the prosecutor to work in tandem with various forensic scientists to identify and prepare additional relevant information for disclosure. Although prosecutors generally should consult with forensic experts to understand the tests or experiments conducted, responsibility for disclosure ultimately rests with the prosecutor assigned to the case. In meeting obligations under Rule 16(a)(l)(E), (F), and (G), the Jencks Act, and Brady/Giglio, and to comply with the Department’s policies of broad disclosure, the prosecutor should be attuned to the following four steps:

First, the prosecutor should obtain the forensic expert’s laboratory report, which is a document that describes the scope of work assigned, the evidence tested, the method of examination or analysis used, and the conclusions drawn from the analyses conducted. Depending on the laboratory, the report may be in written or electronic format; the laboratory may routinely route the report to the prosecutor, or the prosecutor may need to affirmatively seek the report from the forensic expert or his or her laboratory. In most cases the best practice is to turn over the forensic expert’s report to the defense if requested. This is so regardless of whether the government intends to use it at trial or whether the report is perceived to be material to the preparation of the defense. If the report contains personal information about a victim or witness, or other sensitive information, redaction may be appropriate and necessary. This may require court authorization if the forensic expert will testify, as the report likely will be considered a Jencks Act statement. (See the Additional Considerations section below.)

Second, the prosecutor should disclose to the defense, if requested, a written summary for any forensic expert the government intends to call as an expert at trial. This statement should summarize the analyses performed by the forensic expert and describe any conclusions reached. Although the written summary will vary in length depending on the number and complexity of the tests conducted, it should be sufficient to explain the basis and reasons for the expert’s expected testimony. Oftentimes, an expert will provide this information in an “executive summary” or “synopsis” section at the beginning of a report or a “conclusion” section at the end. Prosecutors should be mindful to ensure that any separate summary provided pursuant to Rule 16(a) should be consistent with these sections of the report. Further, any changes to an expert’s opinion that are made subsequent to the initial disclosure to the defense ordinarily should be made in writing and disclosed to the defense.

Third, if requested by the defense, the prosecutor should provide the defense with a copy of, or access to, the laboratory or forensic expert’s “case file,” either in electronic or hard-copy form. This information, which may be kept in an actual file or may be compiled by the forensic expert, normally will describe the facts or data considered by the forensic expert, include the underlying documentation of the examination or analysis performed, and contain the material necessary for another examiner to understand the expert’s report. The exact material contained in a case file varies depending on the type of forensic analysis performed. It may include such items as a chain-of-custody log; photographs of physical evidence; analysts’ worksheets or bench notes; a scope of work; an examination plan; and data, charts and graphs that illustrate the results of the tests conducted.In some circumstances, the defense may seek laboratory policies and protocols. To the extent that a laboratory provides this information online, the prosecutor may simply share the web address with the defense. Otherwise, determinations regarding disclosure of this information should be made on a case-by-case basis in consultation with the forensic analysts involved, taking into account the particularity of the defense’s request and how relevant the request appears to be to the anticipated defenses.

Fourth, the prosecutor should provide to the defense information on the expert’s qualifications. Typically, this material will include such items as the expert’s curriculum vitae, highlighting relevant education, training and publications, and a brief summary that describes the analyst’s synopsis of experience in testifying as an expert at trial or by deposition. The prosecutor should gather potential Giglio information from the government agency that employs the forensic expert. If using an independent retained forensic expert, the prosecutor should disclose the level of compensation as potential Giglio information; the format of this disclosure is left to the discretion of the individual prosecuting office. Disclosure should be made according to local rules but at least as soon as is reasonably practical and, of course, reasonably in advance of trial. It is important that the prosecutor leave sufficient time to obtain documents and prepare information ahead of disclosure. When requesting supporting documents from a laboratory’s file regarding a forensic examination, the prosecutor should consult the guidelines set by the laboratory for the manner in which discovery requests should be made, and for the time required for them to process and deliver the materials to the prosecutor. Further, if multiple forensic teams have worked on a case, the prosecutor should build in sufficient time to consult with, and obtain relevant materials from, each relevant office or forensic expert.

Additional Considerations

Certain situations call for special attention. These may include cases with classified information or when forensic reports reveal the identities of cooperating witnesses or undercover officers, or disclose pending covert investigations. In such cases, when redaction or a protective order may be necessary, prosecutors should ordinarily consult with supervisors.

Laboratory case files may include written communications, including electronic communication such as emails, between forensic experts or between forensic experts and prosecutors. Prosecutors should review this information themselves to determine which communications, if any, are protected and which in formation should be disclosed under Brady/Giglio, Jencks, or Rule 16. If the circumstances warrant (for example, where review of a case file indicates that tests in another case or communications outside the case file may be relevant), prosecutors should request to review additional materials outside the case file.

Finally, when faced with questions about disclosure, prosecutors should consult with a supervisor, as the precise documents to disclose tend to evolve, based especially upon the practice of particular laboratories, the type and manner of documentation at the laboratory, and current rulings from the courts.

[added December 2017]

9-5.004 – GUIDANCE ON THE USE, PRESERVATION, AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS IN FEDERAL CRIMINAL CASES

All prosecution team members should be aware of the government’s obligations regarding the preservation and disclosure of electronic communications, or “e-communications,” which include emails, text messages, SMS (short message service), instant messages, voice mail, pin-to-pin communications, and similar means of electronic communication. Although e‑communications offer benefits in the form of speed and efficiency, all team members should understand that case-related e‑communications may potentially be disclosed to the defense. Thus, all team members should understand the risks of e‑communications; the need to comply with agency rules regarding documentation and record-keeping during an investigation; the importance of careful and professional communication; and the obligation to preserve and produce such communications when appropriate. All members of the prosecution team, including federal, state, and local law enforcement officers, are responsible for making available to the prosecutor all potentially discoverable e‑communications. It is the prosecutor’s responsibility to oversee the gathering, review, and production of discovery. The prosecutor should discuss these matters with all members of the prosecution team at the outset and during the investigation.

The following guidance applies at all phases of a criminal case including investigation, trial preparation, trial, and post-trial:

Prosecution team members should exercise the same care in generating case-related e-communications that they exercise when drafting more formal reports, and only write and send e-communications that are appropriate for displaying to the court, the jury, and the public.
Prosecution team members should exercise caution when using e-communications with non-law enforcement witnesses. Individuals not on the prosecution team, including victims, lay witnesses, and outside experts, should be informed that e-communications are a written record that may be disclosed to the defense and that appropriate care should be exercised.
Substantive e-communications among prosecution team members, including communications containing factual information relating to witnesses, evidence, or investigative activity, should be avoided except when, to meet operational needs, they are the most effective means of communication. Substantive case information should be recorded in formal reports.
E-communications, like formal reports, should state facts accurately and completely; be professional in tone; and avoid witticism, careless commentary, opinion, or over-familiarity in tone.
Prosecution team members should not use personally owned electronic communication devices, personal email accounts, social networking sites, or similar accounts to transmit case-related information to witnesses or other team members.
Prosecution team members should preserve for later review and possible disclosure all substantive e-communications created or received by team members during the course of an investigation and prosecution, and all e-communications sent to or received from lay witnesses, regardless of content.
E-communications should be preserved in their native electronic format; when that is not feasible, another method of preservation should be identified and used.
If the e-communication contains sensitive information, the prosecutor should consider whether to file a motion for a protective order, seek supervisory approval to delay disclosure, make appropriate redactions, summarize the substance of an e‑communication in a letter rather than disclosing the e-communication itself, or take other safeguarding measures. Sensitive information includes information that would affect the privacy or safety of any person, reveal investigative techniques or national security information, or compromise the integrity of another investigation. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.
Prosecutors handling an investigation or case involving national security related issues or intelligence community equities should consult with the National Security/Anti-Terrorism Advisory Council (ATAC) Coordinator in their office and/or the National Security Division for specific guidance on searching for, gathering, reviewing, and disclosing communications in these areas, as well as special procedures (such as the Classified Information Procedures Act, or “CIPA”) that may apply.

For background and additional guidance on these matters, see the March 30, 2011, Deputy Attorney General Cole memorandum, Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.*

*Note that the discussion of personal use of social media in Deputy Attorney General Cole’s 2011 memorandum has been superseded by JM 1-9.000 (Personal Use of Social Media).

[added December 2019]

9-5.100 – POLICY REGARDING THE DISCLOSURE TO PROSECUTORS OF POTENTIAL IMPEACHMENT INFORMATION CONCERNING LAW ENFORCEMENT AGENCY WITNESSES (“GIGLIO POLICY”)

On December 9, 1996, the Attorney General issued a Policy regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”). It applies to all Department of Justice Investigative agencies that are named in the Preface below. On October 19, 2006, the Attorney General amended this policy to conform to the Department’s new policy regarding disclosure of exculpatory and impeachment information, see JM 9-5.001. On July 11, 2014, the policy was revised in several respects, including with regard to the candid conversation between a prosecutor and an agency employee; the definition of impeachment information; record-keeping; information that must be provided to agencies; the transfer of Giglio-related information between prosecuting offices; and the notification of a prosecuting office of Giglio issues when an agency employee is transferred to a new district.

In early 1997, the Secretary of the Treasury issued the 1996 version of the Giglio Policy for all Treasury investigative agencies, and that policy remains in effect for Treasury investigative agencies.

Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)

Preface: The following policy is established for: the Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, the United States Marshals Service, the Department of Justice Office of the Inspector General, and the Department of Justice Office of Professional Responsibility (“the investigative agencies”). It addresses their disclosure of potential impeachment information to the United States Attorneys’ Offices and Department of Justice litigating sections with authority to prosecute criminal cases (“Department of Justice prosecuting offices”). The purposes of this policy are to ensure that prosecutors receive sufficient information to meet their obligations under Giglio v. United States, 405 U.S. 150 (1972), and to ensure that trials are fair, while protecting the legitimate privacy rights of Government employees. NOTE: This policy is not intended to create or confer any rights, privileges, or benefits to prospective or actual witnesses or defendants. It is also not intended to have the force of law. United States v. Caceres, 440 U.S. 741 (1979).

The exact parameters of potential impeachment information are not easily determined. Potential impeachment information, however, has been generally defined as impeaching information which is material to the defense. It also includes information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.[FN1] This information may include but is not strictly limited to: (a) specific instances of conduct of a witness for the purpose of attacking the witness’ credibility or character for truthfulness; (b) evidence in the form of opinion or reputation as to a witness’ character for truthfulness; (c) prior inconsistent statements; and (d) information that may be used to suggest that a witness is biased.

FN1. The italicized language was added in 2006 when JM 9-5.001 was issued. It broadens the definition of “potential impeachment information.”

This policy is not intended to replace the obligation of individual agency employees to inform prosecuting attorneys with whom they work of potential impeachment information prior to providing a sworn statement or testimony in any investigation or case. In the majority of investigations and cases in which agency employees may be affiants or witnesses, it is expected that the prosecuting attorney will be able to obtain all potential impeachment information directly from agency witnesses during the normal course of investigations and/or preparation for hearings or trials.

This policy is intended to provide guidance to prosecuting offices and investigative agencies regarding what potential impeachment information must be produced to the prosecuting office. It does not address the issue of what information the prosecution must produce to the defense, or to the court for ex parte, in camera review. That determination can only be made after considering the potential impeachment information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, and after considering JM 9-5.001, relevant Department guideance, the Federal Rules of Evidence, case law, local court rulings and judicial predisposition, and other relevant guidance, policy, regulations and laws.

Procedures for Disclosing Potential Impeachment Information Relating to Department of Justice Employees

Obligation to Disclose Potential Impeachment Information. It is expected that a prosecutor generally will be able to obtain all potential impeachment information directly from potential agency witnesses and/or affiants. Prosecutors should have a candid conversation with each potential investigative agency witness and/or affiant with whom they work regarding any on-duty or off-duty potential impeachment information, including information that may be known to the public but that should not in fact be the basis for impeachment in a federal criminal court proceeding, so that prosecuting attorneys can take appropriate action, be it producing the material or taking steps to preclude its improper introduction into evidence. Likewise, each investigative agency employee is obligated to inform prosecutors with whom they work of potential impeachment information as early as possible prior to providing a sworn statement or testimony in any criminal investigation or case. Each investigative agency should ensure that its employees fulfill this obligation. Potential impeachment information that may relate directly to agency employee witnesses is defined more fully in paragraphs 5 and 6.Because there are times when an agency employee will be unaware that he or she is the subject of a pending investigation, prosecutors will receive the most comprehensive potential impeachment information by having both the candid conversation with the agency employee and by submitting a request for potential impeachment information to the investigative agency. Therefore, in all cases, a prosecutor should carefully consider and is encouraged to request potential impeachment information from the investigative agency. This policy sets forth procedures for those cases in which a prosecutor decides to make such a request.
Agency Officials. Each of the investigative agencies shall designate an appropriate official(s) to serve as the point(s) of contact concerning Department of Justice employees’ potential impeachment information (“the Agency Official”). Each Agency Official shall consult periodically with the relevant Requesting Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
Requesting Officials. Each of the Department of Justice prosecuting offices shall designate one or more senior official(s) to serve as the point(s) of contact concerning potential impeachment information (“the Requesting Official”). Each Requesting Official shall inform the relevant Agency Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
Request to Agency Officials. Upon initiation of a case or matter within the prosecuting office, or anytime thereafter, a prosecutor may request potential impeachment information relating to an agency employee associated with that case or matter. The prosecutor shall notify the appropriate Requesting Official, who may request potential impeachment information relating to the employee from the employing Agency Official(s) and the designated Agency Official(s) in the Department of Justice Office of the Inspector General (“DOJ-OIG”) and the Department of Justice Office of Professional Responsibility (“DOJ-OPR”).
Disclosure of Potential Impeachment Information by Agency Employee and Agency(a) Agency Review and Disclosure. Upon receiving the request described in Paragraph 4, the Agency Official(s) from the employing agency, the DOJ-OIG, and the DOJ-OPR shall each conduct a review, in accordance with its respective agency plan, for potential impeachment information regarding the identified employee.(b) Agency Employee. Before serving as an affiant or witness in any case or matter, the agency employee shall advise the prosecuting attorney(s) of the existence of any potential impeachment information. Potential impeachment information can include both on-duty and off-duty conduct. Prosecutors should be mindful that some potential impeachment information, including potential impeachment information stemming from off-duty conduct, may not be in agency files and may only be known to the agency employee.(c) Potential Impeachment Information. Agency witnesses and Agency Officials should make broad disclosures of potential impeachment information to the prosecutor so that the prosecutor can assess the information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, among other variables. Potential impeachment information is defined in the Federal Rules of Evidence, case law, unpublished court rulings, and Department of Justice policy and guidance. Unless advised by a Giglio Requesting Official or prosecutor that case law or court rulings in the district require broader disclosures, potential impeachment information relating to agency employees may include, but is not limited to, the categories listed below:

i) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor during a criminal, civil, or administrative inquiry or proceeding;ii) any past or pending criminal charge brought against the employee;

iii) any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation;

iv) prior findings by a judge that an agency employee has testified untruthfully, made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession, or engaged in other misconduct;

v) any misconduct finding or pending misconduct allegation that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—that the prosecutor intends to rely on to prove an element of any crime charged, or that might have a significant bearing on the admissibility of prosecution evidence. Accordingly, agencies and employees should disclose findings or allegations that relate to substantive violations concerning:

(1) failure to follow legal or agency requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications;(2) failure to comply with agency procedures for supervising the activities of a cooperating person (C.I., C.S., CHS, etc.);

(3) failure to follow mandatory protocols with regard to the forensic analysis of evidence;

vi) information that may be used to suggest that the agency employee is biased for or against a defendant (See United States v. Abel, 469 U.S. 45, 52 (1984). The Supreme Court has stated, “[b]ias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.”); andvii) information that reflects that the agency employee’s ability to perceive and recall truth is impaired.
Treatment of Allegations Which Are Unsubstantiated, Not Credible, or Have Resulted in Exoneration. Allegations that cannot be substantiated, are not credible, or have resulted in the exoneration of an employee generally are not considered to be potential impeachment information. Upon request, such information which reflects upon the truthfulness or bias of the employee, to the extent maintained by the agency, will be provided to the prosecuting office under the following circumstances: (a) when the Requesting Official advises the Agency Official that it is required by a Court decision in the district where the investigation or case is being pursued; (b) when, on or after the effective date of this policy: (i) the allegation was made by a federal prosecutor, magistrate judge, or judge; or (ii) the allegation received publicity; (c) when the Requesting Official and the Agency Official agree that such disclosure is appropriate, based upon exceptional circumstances involving the nature of the case or the role of the agency witness; or (d) when disclosure is otherwise deemed appropriate by the agency. The agency is responsible for advising the prosecuting office, to the extent determined, whether any aforementioned allegation is unsubstantiated, not credible, or resulted in the employee’s exoneration.Note. With regard to allegations disclosed to a prosecuting office under this paragraph, the GiglioRequesting Official shall ensure that special care is taken to protect the confidentiality of such information and the privacy interests and reputations of agency employee-witnesses, in accordance with paragraphs 7(b) and 12 below.
Prosecuting Office Records(a) Information in System of Records. For the purpose of ensuring that potential impeachment information is handled consistently within a prosecuting office, whenever potential impeachment information has been disclosed to the court or defense, or when a decision has been made that an agency employee should not testify or serve as an affiant because of potential impeachment information, Department of Justice prosecuting offices may retain the following types of information in a Giglio system of records that can be accessed by the identity of the disclosing agency’s employee:

i) the potential impeachment information;ii) any written analysis or substantive communications, including legal advice, relating to that disclosure or decision; and

iii) any related pleadings or court orders.

In all other circumstances, prosecuting offices may keep any written legal analysis and substantive communications integral to the analysis, including legal advice relating to the decision, and a summary of the potential impeachment information in the Giglio system of records. The complete description of the potential impeachment information received from the Agency Official may be maintained in the criminal case file, but it may not be maintained in the Giglio system of records.(b) Secure Records with Limited Access. Giglio Requesting Official(s) shall ensure that the information in their office’s Giglio system of records is securely maintained and is accessible only upon a request to a Giglio Requesting Official or other senior management entrusted with this responsibility. The information shall only be disclosed to requesting prosecutors within that office on a case-related, need-to-know basis. It should be noted that much of the information in the Gigliosystem of records is sensitive information which if released or reviewed without a case-related need could negatively impact the privacy and reputation of the agency-employee to whom it relates, and could violate the Privacy Act.

(c) Duty to Update. Before any prosecutor or Giglio Requesting Official uses or relies upon information included in the prosecuting office’s Giglio system of records, the Requesting Official shall contact the relevant Agency Official(s) to determine the status of the potential impeachment information, the Agency Official(s) shall provide an update, and the Requesting Official shall update the prosecuting office’s Giglio system of records to ensure that the information in the system of records is accurate.
Information That Must Be Provided to Agencies. When Agency Officials have provided potential impeachment information to a Requesting Official, the Requesting Official shall inform the employing Agency Official how the prosecuting office used the information. A circumstance may arise in which a prosecutor or Requesting Official learns of potential impeachment information relating to an agency employee from a source other than the agency—including but not limited to the agency employee. In such circumstance, the Requesting Official shall notify the Agency Official of such information and provide the Agency with a timely opportunity to meaningfully express its views regarding the information, as required by Paragraph12. Regardless of the source of the information, the Requesting Official will:

(a) advise the employing Agency Official whether the employee provided an affidavit or testimony in a criminal proceeding or whether a decision was made not to use the employee as a witness or affiant because of potential impeachment issues;(b) advise the employing Agency Official whether the information was disclosed to a Court or to the defense and, if so, whether the Court ruled that the information was admissible for use as impeachment information; and

(c) provide the employing Agency Official a copy of any related pleadings, and any judicial rulings, findings or comments relating to the use of the potential impeachment information.

The agency shall maintain judicial rulings and related pleadings on information that was disclosed to the Court or the defense in a manner that allows expeditious access upon the request of any Requesting Official.
Continuing Duty to Disclose. Each agency plan shall include provisions which will assure that, once a request for potential impeachment information has been made, the prosecuting office will be made aware of any additional potential impeachment information that arises after such request and during the pendency of the specific criminal case or investigation in which the employee is a potential witness or affiant. A prosecuting office which has made a request for potential impeachment information shall promptly notify the relevant agency when the specific criminal case or investigation for which the request was made ends in a judgment or declination, at which time the agency’s duty to disclose shall cease.
Providing Records and Information to Another Federal Prosecuting Office and Disposition of Records(a) Distribution of Information to Another Federal Prosecuting Office with Notice to Agency Official(s). If an agency employee has been transferred to another judicial district, or will testify or serve as an affiant in another judicial district, the prosecuting office in the originating district may provide any relevant information from its Giglio system of records relating to that agency employee to a Giglio Requesting Official in the new district. Moreover, nothing shall prohibit the Requesting Official in the new district from consulting with the Requesting Official in the former district about the manner in which the former district handled certain potential impeachment information.The Giglio Requesting Official(s) providing the information shall notify the Agency Official(s) when distributing materials from its Giglio system of records to another prosecuting office, unless the information relates to pending investigations or other incomplete matters, the status of which may have changed or been resolved favorably to the agency employee. With regard to pending investigations or other incomplete matters, to avoid the unnecessary disclosure of potentially derogatory information regarding an agency employee, the Giglio Requesting Official transferring the information shall notify the relevant Agency Official(s) before providing any information to another prosecuting office, except as noted in paragraph 13. The Agency Official(s) shall provide a prompt update. Whether notice is provided before or contemporaneously with the transfer, the GiglioRequesting Official shall also advise the Agency Official(s) what materials will be or have been distributed.(b) Duty to Update. The Requesting Official in the new prosecuting office shall seek an update from Agency Official(s) as part of the Giglio analysis, and shall allow the agency the timely opportunity to fully express their views as required by Paragraph 12 and to provide an update. The Requesting Official in the new district is not bound by the former district’s decisions regarding disclosure of information to the Court or defense, or use of the agency employee as a witness or affiant, and should review the former district’s information along with other relevant information, when making an independent decision regarding disclosure to the Court or defense, use of the agency employee as a witness or affiant, and other related issues.(c) Removal of Records Upon Transfer, Reassignment, or Retirement of Employee. Upon being notified that an agency employee has retired, been transferred to an office in another judicial district, or been reassigned to a position in which the employee will neither be an affiant nor witness, and subsequent to the resolution of any litigation pending in the prosecuting office in which the agency employee was involved, the Requesting Official shall remove from the prosecuting office’s system of records any record that can be accessed by the identity of the employee. More specifically, the records must be removed at the conclusion of the direct and collateral appeals, if any, or within one year of the agency employee’s retirement, transfer, or reassignment, whichever is later.
Notification. When an agency employee is transferred to a new district, the Agency shall ensure that a Requesting Official in the new district is advised of any potential impeachment material known to the Agency when the employee begins meaningful work on a case or matter within the prosecuting district or is reasonably anticipated to begin meaningful work on such a case or matter.
Prosecuting Office Plans to Implement Policy. Each prosecuting office shall develop a plan to implement this policy. The plan shall include provisions that require: (a) communication by the prosecuting office with the Agency Official about the disclosure of potential impeachment information to the Court or defense counsel, including indicating what materials are being distributed, and allowing for the Agency to promptly update the information and express its views on whether certain information should be disclosed to the Court or defense counsel; (b) preserving the security and confidentiality of potential impeachment information through proper storage and restricted access within a prosecuting office; (c) when appropriate, seeking an ex parte, in camera review and decision by the Court regarding whether potential impeachment information must be disclosed to defense counsel; (d) when appropriate, seeking protective orders to limit the use and further dissemination of potential impeachment information by defense counsel; (e) allowing the relevant agencies the timely opportunity to fully express their views; and (f) information contained within the Giglio system of records may not be disclosed to persons outside of the Department of Justice except in a criminal case to which the United States is a party, and where otherwise authorized by law, regulation, or court order.
Exception to Requirements Regarding Providing Notice to Agencies and Soliciting Agency Views. In rare circumstances, a Giglio issue may arise immediately before or during a court proceeding, and a prosecuting office may determine that it does not have time to solicit the agency’s views or provide notice before it must take action on the matter. In such a case, the prosecuting office shall provide notice or solicit agency views as promptly as the circumstances reasonably permit. Many situations of this type can be avoided by ensuring that prosecutors and agency employee witnesses have candid conversations and that prosecutors submit formal Giglio requests sufficiently in advance of any proceedings.
Investigative Agency Plans to Implement Policy. Each investigative agency shall develop a plan to effectuate this policy.[updated January 2020]

9-5.110 – TESTIMONY OF FBI LABORATORY EXAMINERS

In situations where FBI laboratory examinations have resulted in findings having no apparent probative value, yet defense counsel intends to subpoena the examiner to testify, the United States Attorney (USA) should inform defense counsel of the FBI’s policy requiring payment of the examiner’s travel expenses by defense counsel. The USA should also attempt to secure a stipulation concerning this testimony. This will avoid needless expenditures of time and money attendant to the appearance of the examiner in court.

[updated December 2006]

9-5.150 – AUTHORIZATION TO CLOSE JUDICIAL PROCEEDINGS TO MEMBERS OF THE PRESS AND PUBLIC

Procedures and standards regarding the closure of judicial proceedings to members of the press and public are set forth in 28 C.F.R. § 50.9. Government attorneys may not move for or consent to the closure of any criminal proceeding without the express prior authorization of the Deputy Attorney General.

There is a strong presumption against closing proceedings, and the Department foresees very few cases in which closure would be warranted. Only when a closed proceeding is plainly essential to the interests of justice should a Government attorney seek authorization from the Deputy Attorney General to move for or consent to closure of a judicial proceeding. Government attorneys should be mindful of the right of the public to attend judicial proceedings and the of the Department’s obligation to the fair administration of justice.

Any request for authorization to move for or consent to closure, in addition to setting forth the relevant and procedural background, should include a detailed explanation of the need for closure, addressing each of the factors set forth in 28 C.F.R. § 50.9(c)(1)-(6). In particular, the request should address in detail how an open proceeding will create a substantial likelihood of danger to specified individuals; how ongoing investigations will be jeopardized; or how a person’s right to a fair trial will be impaired. The request must also consider reasonable alternatives to closure, such as delaying the proceeding, if possible, until the reasons justifying closure cease to exist. An applicable form is available to Department attorneys.

Whenever authorization to close a judicial proceeding is being sought pursuant to 28 C.F.R. § 50.9 in a case or matter under the supervision of the Criminal Division, the request should be directed to the Policy and Statutory Enforcement Unit, Office of Enforcement Operations. In cases or matters under the supervision of other divisions of the Department of Justice, the appropriate division should be contacted.

Because of the vital public interest in open judicial proceedings, every 60 days after termination of any proceeding closed pursuant to 28 C.F.R. § 50.9, Government attorneys must review the records of the proceedings to determine whether the reasons for closure still apply. As soon as the justification for closure ceases to exist, the Government must file an appropriate motion to have the records unsealed. See 28 C.F.R. § 50.9(f). While the Criminal Division monitors compliance with this requirement, it is the affirmative obligation of the U.S. Attorney’s Offices to ensure that sealed records are reviewed in accordance with the regulation’s requirements. U.S. Attorney’s Offices should acknowledge this obligation in any request for authorization to move for or consent to closure. source

[updated January 2020]

The Prosecutor’s Disclosure Obligation

Prosecutors and police have a duty to seek out and voluntarily disclose every bit of evidence that helps a person accused of a crime defend themselves from prosecution. This kind of “exculpatory” evidence can come in the form of improper evidence handling, insufficient officer training, negative officer performance reviews, and even dishonesty or wrongdoing by a police officer.

Unfortunately, not all police officers or prosecutors understand the full extent of this obligation. In fact, some police officers in Washington have even actively attempted to keep information about their past misconduct secret from those they have accused of a crime.

The duty to disclose derives from (1) the Constitutional Due Process requirement for disclosure set out in Brady v. Maryland, (2) the Criminal Rules on discovery, and (3) the Rules of Professional Conduct.

Here we provide an overview designed to give a basic understanding of the duties and obligations of the government as they relate to disclosure obligations. We end with a brief discussion of the new model policy on Potential Impeachment Disclosure (PID), and new areas of future disclosure obligations.

CONSTITUTIONAL DUE PROCESS

There are over 30,000 cases in the United States that discuss the government’s obligation to provide exculpatory information to the defense. Every prosecutor and defense attorney should be familiar with the following cases.

Brady v. Maryland, 373 U.S. 83 (1963) (Prosecution violates a defendant’s due process rights by failing to turn over potentially exculpatory evidence).
United States v. Bagley, 473 U.S. 667 (1985) (Brady rule applies to impeachment evidence).
Silva v. Brown, 416 F.3d 980 (9th Cir. 2005) (Impeachment evidence is especially likely to be “material” under Brady; thus, the government must reveal promises of leniency or immunity for its witnesses).
Kyles v. Whitley, 514 U.S. 419 (1995) (The prosecutor bears the primary responsibility of identifying and turning over Brady evidence. The prosecutor’s obligation to turn over all exculpatory evidence extends to evidence that is in the possession of the police, including information that the police have not disclosed to the prosecutor. “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence”).
United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (“The prudent prosecutor will resolve doubtful questions in favor of disclosure.”).
In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 397 n. 9 (1999) (Even after conviction, the prosecutor is required by the ethics of the office “to inform the appropriate authority of . . . information that casts doubt upon the correctness of the conviction.”).
State v. Copeland, 89 Wn. App. 492, 497-98, 949 P.2d 458 (1998) (A prosecutor must disclose prior criminal convictions of witnesses intended to be called for trial if that information is in the knowledge, control or possession of any member of the prosecution office, even where the deputy prosecutor on the case is not actually aware of the prior conviction of the witness).
State v. Garcia, 45 Wn. App. 132, 724 P.2d 412 (1986) (A prosecutor must disclose the substance of an eyewitness’ oral recantation and any prosecutor notes for an in camera review of the conversation even though the prosecutor did not believe the recantation). This rule also applies to non-lawyer support staff at a prosecutor’s office, such as victim/witness advocates and secretaries.
State v. Blackwell, 120 Wn.2d 822, 828 (1993) (If the defense can first show materiality, the burden shifts to the prosecution to attempt to obtain evidence held in an officer’s file). If the prosecution will not comply with a request for any information in a police officer’s file, a motion can be brought under Blackwell. However, filling public records request is often a quicker solution.

CRIMINAL DISCOVERY RULES

Discovery in Criminal cases is controlled by CrR 4.7 in Superior Court, and CrRLJ 4.7 in District Court. Although these rules differ somewhat, there is not meaningful difference as it relates to Brady obligations.

CrR 4.7(a)(1): Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney’s possession or control no later than the omnibus hearing.
CrR 4.7(a)(1)(vi): Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.
CrR 4.7(3): Except as is otherwise provided as to protective orders, the prosecuting attorney shall disclose to defendant’s counsel any material or information within the prosecuting attorney’s knowledge which tends to negate defendant’s guilt as to the offense charged.
CrR 4.7(4): The prosecuting attorney’s obligation under this section is limited to material and information within the knowledge, possession, or control of members of the prosecuting attorney’s staff.
CrR 4.7(d): Upon defendant’s request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant. If the prosecuting attorney’s efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.

RULES OF PROFESSIONAL CONDUCT

The Rules of Professional Conduct contain two rules exclusively for prosecutors that relate to the prosecutor’s obligations under Brady.

RPC 3.8(d) compels prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

A prosecutor’s obligations under RPC 3.8(d) are very similar to the disclosure obligations imposed by Constitutional Due Process. As such, failure to comply with the Brady obligations can result in negative licensing ramifications for a criminal prosecutor. The more knowing and willful a violation of this rule, the more negative the ramifications have been.

RPC 3.8(g) is a newer rule, coming into effect in December 2011. Under RPC 3.8(g), when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted, defendant is innocent of the offense of which the defendant was convicted the prosecutor shall promptly disclose that evidence to an appropriate court or authority, and if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant unless a court authorizes delay, and make reasonable efforts to inquire into the matter, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter.

CASE STUDIES

Two recent Washington cases show how prosecutors have dealt with their Brady obligations, and how some police officers have greatly resisted prosecutorial efforts to disclose findings of their misconduct.

Lackey V. Lewis County:

The Lewis County Sheriff’s Office conducted an internal investigation on Deputy Lackey. The investigation made findings that Lackey had committed job related acts of dishonesty and other violations.

The Sheriff sent Lackey a letter sustaining the findings and indicating that Lackey was to be separated from employment for the other violations. The letter also stated that the investigative report was being forwarded to the Lewis County Prosecutor for an analysis under Brady and that a determination of lack of veracity would constitute an additional and independent basis for termination.

The Prosecutor responded by letter, writing “the disciplinary file you provided contains findings that Deputy Lackey committed job-related acts of dishonesty or untruthfulness … I am obligated to provide this information to defendants and defense attorneys in every case in which Deputy Lackey is likely to testify as a witness for the State.”

Lackey was separated from employment but appealed through Civil Service. A settlement was reached between Lackey and the Sheriff’s Office. The parties to the agreement were the Lewis County Sheriff’s Office, the Deputies Guild, and Lackey. The Prosecutor was not a party to the agreement.

The Sheriff’s Office “agreed to remove any reference to findings of dishonesty in the plaintiff’s termination letter; however, the findings were to remain in the plaintiff’s permanent investigation file.” The agreement also stated that the letter from the Prosecutor would be sealed by the Sheriff.

The settlement agreement further stated that the Brady memo from Mr. Golden to Mr. Walton would remain sealed by the Sheriff unless directed to be disclosed by a court order, public records request, or other applicable and controlling laws.

NOTE: Police union contracts and settlement agreements cannot prevent the disclosure of Brady material as a defendant’s constitutional right is paramount. An officer’s privacy interest cannot prevent disclosure of disciplinary records as such records are considered to be of legitimate concern to the public. See, e.g. Dawson v. Daly, 120 Wn.2d 782, 795-96, 845 P.2d 995 (1993); Cowles Pub’g Co. v. State Patrol, 44 Wn. App. 882, 724 P.2d 379 (1986), rev’d on other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988).

Lackey then obtained provisional employment in Mason County, pending a background investigation. The Lewis County Prosecutor became aware of this and sent Lackey a letter stating he would be sending his analysis letter to the Mason County Prosecutor, but gave Lackey 10 days to object. The letter was subsequently sent.

Lackey was separated from his new job. He then filed claims against Lewis County and the Lewis County Prosecutor for sharing Brady information, Due Process violation and deprivation of property interest, defamation, invasion of privacy, and an injunction.

All federal claims were dismissed by the federal court.

“The court can find no law prohibiting a prosecutor from sharing potentially exculpatory or impeaching evidence with prosecutors of another jurisdiction. Such a law would be antithetical to a prosecutor’s duty of disclosure mandated by Brady v. Maryland. A reasonable prosecutor in Mr. Golden’s position could feel obliged to offer such information to a fellow prosecutor to remain in compliance with Brady and its progeny; and a reasonable prosecutor in Mr. Golden’s position would not have known that his conduct in releasing the Brady letter would violate any clearly established constitutional right.”

The court also wrote “The plaintiff has failed to identify any law that recognizes a police officer’s right to a name-clearing hearing after a Brady determination has been made, or any law prohibiting a prosecutor from transmitting a Brady determination to another jurisdiction.”

Lackey v. Lewis County_ 2009 U.S. Dist. LEXIS 94674.pdf

Doyle V. Lee, 166 Wn. App. 397 (2012):

Doyle left his employment with the Sierra County Sheriff’s Office after a settlement agreement dismissing a disciplinary action in exchange for his resignation. The agreement precluded Doyle from applying for or accepting employment with Sierra County for five years. Before this agreement was reached, Doyle had first been subject to termination, and later was placed on unpaid, one-year probation.

Later in 2007, Doyle became employed by the Quincy Police Department (who presumably did not know about the Sierra County issue when they hired him).

In 2009, Doyle called the police Moses Lake Police Department (MLPD) reporting documents related to his Sierra County employment had been stolen. MLPD recovered and reviewed the documents. Believing the documents showed that an investigation resulted in a finding that Doyle was dishonest, MLPD passed this information to then Grant County Prosecutor Angus Lee. Lee preliminarily determined the dishonesty finding and the supporting information were potential impeachment materials that his office was required to disclose to criminal defendants in compliance with Brady.

Mr. Lee notified Doyle of his determination and invited him to provide any information he wished to assist in making the final determination.

Doyle responded by suing for declaratory relief, and seeking an Ex Parte order to prohibit Mr. Lee from using, or disseminating any of the documents.

The trial court entered a preliminary injunction, but allowed the prosecution to comply with Brady mandate by submitting the materials to the criminal trial courts for in camera review on cases where Doyle was a potential witness. Each criminal trial judge that ruled on the in camera review ordered disclosure of the materials under Brady and Bagley.

Mr. Lee moved for summary judgment to dissolve the preliminary injunction and to dismiss the case. Finding that the Sierra County outcome was adverse to Doyle and that such information would be of public concern, the trial court ordered the immediate termination of the preliminary injunction and granted Mr. Lee’s motion for summary dismissal.

In affirming the trial court’s summary judgment, the appellate court wrote “a sustained finding of dishonesty existed resulting in adverse consequences to Officer Doyle. Under Brady, a prosecutor is required to disclose exculpatory evidence, including an officer’s dishonesty…. Mr. Lee complied with the Brady mandates by giving the documents to numerous affected defense attorneys.”

The court also awarded Mr. Lee tens of thousands in attorneys fees for having to defend against the action.

Doyle v. Lee_ 166 Wn. App. 397.pdf

MODEL POTENTIAL IMPEACHMENT DISCLOSURE POLICY

In 2013, after the Lackey and Doyle cases, prosecutors in Washington State, through the Washington Association of Prosecuting Attorney’s, published a model policy for the handling of Brady/Doyle material for officers. Although some prosecutor’s offices still use the term “Brady Cop”, many have adopted the model policy and the term “Potential Impeachment Disclosure” (PID) when referring to disclosure obligations involving a police officer.

The model policy was designed to achieve compliance with the above requirements, and create state-wide uniformity in the way potential impeachment of recurring government witness issues are handled. According to the model policy, “All County deputy prosecuting attorneys are required to know and follow this protocol and all relevant law concerning potential impeachment of recurring government witness disclosure obligations.”

Under the model policy, the PID standard is likely to be satisfied by reliable information that an officer was dishonest in connection with the performance of official duties. It is less likely to be satisfied by dishonesty in connection with an officer’s private affairs. Under unusual circumstances, information about private acts might be subject to the PID policy if the acts could be admissible under Evidence Rule 608(b) as evidence of untruthfulness.

PID Model Policy WAPA 2013.pdf

Clark County PID:

Below you can download the “Brady Policy” and list maintained by the Clark County Prosecutor’s Office and the Vancouver City Attorney’s Office.

PID GUIDELINES

The PID Standard depends on what a reasonable person could believe, not on what the prosecutor’s office or a law enforcement agency does believe.
Consequently, disclosure may be required in cases where the prosecutor’s office and/or the law enforcement agency believe that no misconduct occurred, if a reasonable person could draw a different conclusion.
If the prosecutor’s office concludes that an officer is subject to PID, that conclusion does not necessarily reflect a conclusion that the officer committed misconduct, or that the officer is not credible as a witness.
PID is about meeting the government’s obligation to disclose. It is NOT about making a determination on admissibility, or on an officer’s credibility, or employability.
A determination that disclosure is required is not a stipulation by the prosecution as to admissibility. In fact, it is not uncommon for the prosecution to make a disclosure of material to the defense, but then later argue for suppression or exclusion of that material at trial.
When the determination is questionable, the prosecution should submit the material to the court in camera for a determination on the disclosure obligation . If the defense believes there is material that is not being disclosed pursuant to Brady and its progeny, the defense should move the court for an in camera review of the material it believes exists and is not being disclosed.
If material is submitted for in camera review, it may or may not be disclosed by the court. As a result, the defense either obtains the requested material, or builds a record for any future appeal regarding what was not disclosed.

THE FUTURE OF BRADY

A review of the case law regarding Brady material reveals that the law is expanding and will continue to expand the scope of discovery beyond simple acts of dishonesty by an officer. Brady disclosure obligations at their heart deal with ANY information that may tend to negate or call into question the testimony of a witness, thereby making the information material for impeachment purposes.

Mental and Physical Health: depression and other mental health disorders are increasingly common across America. Police officers and jail guards are no exception. In fact, it has been reported that jail guards suffer from PTSD at higher rates than combat veterans. The drugs some take to treat these issues may be very relevant to a particular officer’s ability to observe and recall a particular incident. Likewise, if an officer has been diagnosed and in need of medication, the absence of appropriate medication may also be relevant.

Evidence of prejudice towards a protected class: Prejudice and bias against a group of people can be very relevant to impeachment of an officer’s testimony. This kind of information can often be found in comments that officers make publicly on social media.

Performance Reports: Most government witnesses (especially at the State Crime Laboratory) are subject to regular performance testing and evaluations. Adverse or substandard performance reviews or evaluations are potentially very relevant to impeaching the testimony of a government witness.

Substance Abuse: If an officer was on drugs or alcohol, or dealing with a bad hangover, at the time of arrest, this information is very relevant to the officer’s ability to observe and recall an incident many months later at trial. As such, use/abuse of drugs or can be relevant information. source

7 Types of Exculpatory Evidence that Can Trigger a Brady Violation

The Brady rule applies to all types of evidence a defendant may be able to use to protect himself or herself from a conviction. Some examples include:

1. Evidence of Police Misconduct

If the police racially profiled you, violated your constitutional rights, or engaged in any other form of misconduct before, during, or after your arrest, this could have a substantial impact on your criminal case. As a result, you are entitled to know if prosecutors have any evidence of police misconduct in their possession.

2. Evidence that Someone Else Committed the Crime

Evidence that someone else committed the crime in question has strong exculpatory value, and it is almost certainly material to the prosecution’s case against you. This could include a confession, witness statements, surveillance footage, or any of a variety of other forms of evidence.

3. Records that Suggest You Didn’t Commit the Crime

If the police report or any other records suggest that you didn’t commit the crime (or may not have committed the crime), this is also something you are entitled to know. Prosecutors should disclose these records; and, if they don’t, this could entitle you to legal remedies as discussed in detail below.

4. Physical Evidence that Casts Doubt on Your Guilt

Along with documentary evidence, any physical evidence that casts doubt on your guilt is also highly likely to be material and exculpatory. This could include anything from the weapon used to commit the crime in question to a piece of property that you allegedly stole.

5. Information about a Deal with an Informant or Witness

If any of the government’s witnesses received a deal in connection with their decision to testify, this is key information that could have a major impact on the judge’s or jury’s decision. This means that defendants are generally entitled to disclosure of this information as well.

6. Information that Discredits a State’s Witness

Along with information about a deal, any other information that discredits a state’s witness could also trigger the prosecution’s obligation to voluntarily disclose. For example, if a witness changes his or her story on the witness stand after giving prosecutors a pre-trial statement, failure to disclose the prior statement may constitute a Brady violation.

7. Information that Casts Doubt on an Alleged Victim’s Testimony

Information that casts doubt on an alleged victim’s testimony can also trigger the Brady rule. This includes (but is not limited to) prior inconsistent statements, evidence that the victim is lying, and evidence that the victim has made similar false allegations in the past.

But, it is important to keep in mind that judges examine possible Brady violations on a case-by-case basis. To establish a Brady violation, you must be able to show that the evidence is material and exculpatory based on the circumstances of your case. Other types of evidence may constitute “Brady material” as well, and the types of evidence listed above may or may not qualify depending on the facts at hand.

Potential Consequences of the Prosecution’s Failure to Disclose Exculpatory Evidence

Let’s say prosecutors withhold exculpatory evidence before or during your trial. What does this mean for the outcome of your case? The potential consequences of the prosecution’s failure to disclose exculpatory evidence include:

Production of the Exculpatory Evidence – If it is still possible to “correct” a Brady violation, then the judge may simply order the prosecution to disclose the evidence to the defense.
Mistrial – If a Brady violation cannot be corrected, the judge may order a mistrial.
Dismissal – If a Brady violation is particularly egregious, the judge may order the case dismissed rather than declaring a mistrial.
Reversal – If a Brady violation only comes to light after a defendant’s conviction, then the defendant may be entitled to a reversal—either with or without the possibility of a retrial.
No Consequences – If the judge determines that the withheld evidence is not material and exculpatory, then the prosecution’s failure to disclose it may not have any consequences. source

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Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Retrieving Evidence / Internal Investigation Case

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

The Prosecutor Problem – Why Holding Prosecutors Accountable Is So Difficult

The Truth News — Sun, 04 Jun 2023 18:08:14 +0000

The Prosecutor Problem – Why Holding Prosecutors Accountable Is So Difficult

A former assistant U.S. attorney explains how prosecutors’ decisions are fueling mass incarceration — and what can be done about it.

This essay is part of the Brennan Center’s series examining the punitive excess that has come to define America’s criminal legal system.

I became a prosecutor because I don’t like bullies. I stopped being a prosecutor because I don’t like bullies.

I grew up on the south side of Chicago in an all-Black neighborhood. My family had direct experience with crime — our house was broken into, and my mother was held up at gun point. As a young Black man, I also had some bad experiences with police officers, like getting stopped for no reason, or being the object of suspicion every time I rode my bike into a white neighborhood.

So, I went into the prosecutor’s office in the District of Columbia as an undercover brother, hoping I could create change from within. I wanted to help keep people safe from criminals, and I wanted to help keep Black people as safe as possible in a racist criminal justice system.

What I instead found was that rather than changing the system, the system was changing me. Like many lawyers, I was competitive and ambitious, and the way for a young lawyer to move up in the prosecutor’s office was to lock up as many people as possible, for as long as possible. It turned out I was good at it, and I started to think of that work as the best way to serve my community.

At some point, though, I began to see things differently. Virtually all the defendants were Black or Latino. In Washington, as in many American cities, if you visit criminal court, you would think that white people don’t commit crime. I came to realize that I did not go to law school to put Black people in prison, especially for the drug crimes that I was prosecuting — crimes that white folks were also committing but didn’t get arrested for. I also didn’t feel that my work sending so many people to prison — especially Black men — was making communities any safer. On the contrary, I learned that too many prosecutors use their power in a way that has contributed to the radical increase in incarceration.

As the most powerful actors in the criminal legal system, local and federal prosecutors have a huge amount of discretion and are subject to little judicial oversight — oversight that might moderate their misuse of prosecutorial power. For example, they decide not only whether to charge someone with a crime, but if so, what crime. Even if a judge does not agree with the prosecutor’s decision to charge someone with a particular crime, the judge is powerless to undo the prosecutor’s action. Because punishment for a crime is largely determined by the sentence that lawmakers have established in the criminal code, the prosecutor often has more power over how much punishment someone convicted of a crime receives than the judge who does the actual sentencing.

Let’s say that a person has been arrested for possessing five pounds of weed (in a jurisdiction where marijuana possession and selling is criminalized). The prosecutor can choose not to charge that person (no sentence, obviously), charge them with simple possession (usually a sentence of limited duration or severity), or charge them with possession with intent to distribute, which can require — by statute — several years in prison. Most prosecutor offices are not transparent about what factors would lead them to which charging decision — and that’s assuming that the office even has uniform standards. Many don’t, and they decide these issues on an ad hoc basis, which risks allowing inappropriate considerations like race to influence who gets charged.

Plea bargaining exacerbates the problem. This is because prosecutors typically offer an accused person a “deal” to avoid going to trial. Some 95 percent of criminal cases are resolved this way. If the defendant agrees to confess their guilt, the prosecutor recommends a sentence to the judge that is less punitive than what the prosecutor would recommend if the defendant goes to trial, and loses. This threat by prosecutors — to throw the book at defendants who are found guilty — radically dilutes the defendant’s constitutional right to a trial.

Unfortunately, the Supreme Court authorized this practice in a 1978 case called Bordenkircher v. Hayes. Lewis Hayes had been charged with forgery and faced a 2-to-10-year prison sentence. Prosecutors offered to pursue a five-year sentence if Hayes pleaded guilty and saved them from “the inconvenience and necessity of a trial.” If he refused to plead guilty, prosecutors said they would seek an indictment under the Kentucky Habitual Crime Act. Because Hayes had previously been convicted of two felonies, a conviction would mandate a sentence of life imprisonment. Hayes exercised his constitutional right to a trial, prosecutors charged him under the Habitual Crime Act, and he was found guilty and sentenced to a life term.

Hayes challenged his conviction on the grounds that his 14th Amendment due process rights were violated when prosecutors threatened to re-indict him on more serious charges if he did not plead guilty to the original, less serious forgery offense. In its 5–4 decision, the Supreme Court rejected the challenge. According to the Court, the plea-bargaining system is an “important component of this country’s criminal justice system,” and so long as pleas are made “knowingly and voluntarily,” there is no constitutional violation. The Court did recognize that punishing a person because he “has done what the law plainly allows him to do” is “a due process violation of the most basic sort.” But it rejected the idea that Hayes was being punished, claiming instead that he was just being presented with “difficult choices.”

Since Bordenkircher, plea bargaining has become so institutionalized that, in a case decided in 2012, Justice Anthony Kennedy noted that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”

Prosecutors have also contributed to the racial disparities that are an endemic feature of the U.S. criminal legal system. In 2014, the Vera Institute of Justice published research that examined racial disparities at play in the Manhattan District Attorney’s office, and it concluded that “race remained a statistically significant independent factor” at most discretionary points in the legal process. In Vera’s report, based on the analysis of more than 200,000 cases, researchers found that Black and Latino people charged with drug offenses were more likely to receive more punitive plea offers than white defendants, particularly offers that included incarceration. Black and Latino defendants were also more likely than similarly situated whites and Asian Americans to be detained before trial. The study did find that prosecutors treated Black and Latino defendants more favorably in at least one respect: they were more likely than whites to have cases dismissed before they went to trial — probably, the report argued, because “police were more likely to bring them in on bogus or unsubstantiated charges” in the first place.

Many of these policies and practices are being reexamined in jurisdictions across the country, in part thanks to reformers who have won district attorney elections. The “progressive prosecutor” movement owes its start to Angela J. Davis’s 2009 book, Arbitrary Justice: The Power of the American Prosecutor, which argued that prosecutors should use their discretion to reduce mass incarceration and racial disparities.

Reform-minded prosecutors have different approaches, but they all reject incarceration as a knee-jerk response to social ills. In Chicago, Cook County State’s Attorney Kim Foxx has declined to prosecute low-level offenses such as small-scale retail theft as felonies. In Baltimore, State’s Attorney Marilyn J. Mosby recently announced her office will no longer prosecute sex work, drug possession, and other low-level offenses. Philadelphia District Attorney Larry Krasner requires prosecutors in his office to state on the record the costs and benefits of any prison sentences they recommend to judges. In San Francisco, District Attorney Chesa Boudin has ended the use of “three strikes” laws.

The progressive prosecutor movement is new but promising. Since prosecutors are one of the primary sources of the problem of mass incarceration and excessive punishment, they must be part of the solution. source

Paul Butler is the Albert Brick Professor in Law at Georgetown University and a MSNBC legal analyst. A former federal prosecutor, he is the author of Chokehold: Policing Black Men.

Why Holding Prosecutors Accountable Is So Difficult

Innocence Project senior litigation counsel Nina Morrison discusses prosecutorial misconduct.

Brian Stolarz visiting his client Dewayne Brown in a Texas prison. Brown’s case was featured in “The Innocence Files” series for the pervasive prosecutorial misconduct. Photo courtesy of Brian Stolarz

“The prosecutor has more control over life, liberty and reputation than any other person in America.” – Former U.S. Attorney General and Supreme Court Justice Robert H. Jackson

Prosecutors hold tremendous power, having wide discretion in whether or not to bring criminal charges against someone and what those charges should be. But they also have constitutional obligations to ensure that those accused of a crime receive all the evidence that might aid the accused person’s defense before trial.

Prosecutorial misconduct occurs when a prosecutor intentionally breaks a law or a code of professional ethics while prosecuting a case.

“Prosecutors have demanding jobs and high caseloads, and we recognize that they sometimes make honest mistakes,” says Innocence Project senior litigation counsel Nina Morrison. “Sometimes those mistakes are serious enough that a person convicted of a crime will be entitled to have his or her conviction thrown out, even if the prosecutor didn’t intend to violate the convicted person’s rights.”

In some of those cases, however, the violation is not an accident and rises to the level of intentional misconduct. “In a disturbing number of cases,” Morrison explains, “we have found documents or notes hidden in a prosecutor’s case file containing information that would have directly supported our client’s innocence defense, but which was held back by the prosecutor at trial and kept hidden for decades. And in other cases, credible leads to suppressed evidence can’t be pursued because the original files are destroyed, or witnesses have died or gone missing.”

Prosecutorial misconduct occurs when a prosecutor intentionally breaks a law or a code of professional ethics while prosecuting a case. While prosecutors are responsible for following the law themselves and making sure that those in law enforcement who work on an investigation or prosecution do the same, “prosecutorial misconduct” is a term typically reserved for serious and intentional violations.

It is difficult to know the full extent of the problem, in part because prosecutors often are the ones who control access to evidence needed to investigate a claim of misconduct. But we do know that some prosecutors prize winning a conviction over complying with their constitutional obligations, resulting in error and, in some cases, intentional misconduct. Despite this, there are no reliable systems for holding prosecutors accountable for their misdeeds. Under current United States Supreme Court precedent, prosecutors are frequently granted “immunity” from civil lawsuits (meaning they cannot be sued by a wrongly convicted person) even when they intentionally violate the law, making oversight by public agencies and the courts all the more critical.

“We know that official findings of misconduct represent only a fraction of the misconduct that actually occurs.”

Dewayne Brown when he was arrested as a suspect for a double murder in Texas he didn’t commit. Photo courtesy of Brian Stolarz

(L-R): Stanley Mozee, Conviction Integrity Unit Chief Cynthia Garza, Dallas County D.A. John Creuzot, Innocence Project Senio… Read more

A survey conducted by the Innocence Project, Innocence Project New Orleans, Resurrection After Exoneration and the Veritas Initiative looked at five diverse states over a five-year period (2004-2008) and identified 660 cases in which courts found prosecutors committed misconduct, such as tampering with key evidence, withholding evidence from the defendant or coercing a witness to give false testimony. In 527 cases, judges upheld the convictions, concluding that the prosecutorial error did not impact the fairness of the defendant’s original trial. In 133 cases, convictions were thrown out. Of the 660 cases examined, only one prosecutor accused of misconduct was disciplined.

In 2013, ProPublica reporter Joaquin Sapien issued a report that focused on New York City prosecutors. Sapien examined New York state and federal court rulings between 2001-2011 and identified 30 cases in which “judges explicitly concluded that city prosecutors had committed harmful misconduct.” In all of the cases Sapien reviewed, however, only one prosecutor was removed from office for misconduct – and even that prosecutor was not removed until he was caught committing a second ethical violation. Although many cases were similarly concerning, the prosecutors were not sanctioned.

“We know that official findings of misconduct represent only a fraction of the misconduct that actually occurs,” explains Morrison. “It is very difficult to find proof of misconduct that by definition is designed to stay hidden – especially when prosecutors hold so much power to control access to what’s in their files and to witnesses. But the disparity between even the rare, official findings of misconduct and actual consequences for the prosecutors involved is enormous. Often, the bar discipline committees that are charged with investigating these cases are overwhelmed with other cases, lack expertise in criminal law or, in some cases, are biased in favor of prosecutors and give them every benefit of the doubt.”

“It is very difficult to find proof of misconduct that by definition is designed to stay hidden.”

Despite the difficulties in holding prosecutors accountable for misconduct, the Innocence Project remains committed to this work. Morrison describes the three key areas of work on which she is currently focusing to implement change:

“First, we are trying to hold prosecutors accountable for serious misconduct when it occurs as a way to deter future misconduct and to prevent future wrongful convictions. This work ranges from filing formal complaints against these prosecutors in the states where they are licensed to practice law—which could result in their suspension from practice, or even disbarment—to a major civil rights lawsuit we filed against the District Attorney’s Office in New Orleans, Louisiana, on behalf of an exoneree wrongly prosecuted by an office whose misconduct was so longstanding and pervasive that it effectively meets the demanding legal test for an ‘official policy.’

Second, we’re trying to improve the legal systems that are designed to hold prosecutors accountable but, too often, fall short. This ranges from strengthening the ones that don’t work well or quickly enough, and urging states to experiment with new systems devoted to the particular duties of prosecutors—like prosecutorial conduct commissions and court orders for compliance with discovery rules.

Finally, we’re trying to prevent misconduct before it occurs. We urge states and prosecutors’ offices to expand what’s known as pretrial “discovery”—the rules that require prosecutors to turn over evidence to someone accused of a crime. Early, open and mandatory discovery is a systematic change that makes it much easier for prosecutors to avoid mistakes, and much harder for those who might be tempted to cheat to get away with hiding evidence of a person’s innocence.”

As Innocence Project client Michael Morton, who wrongly spent 25 years in prison for murder because the prosecutor hid key evidence of his innocence – and whose case is still the only one in the U.S. in which a former prosecutor has ever been jailed for misconduct that caused a wrongful conviction – has said, “Accountability works. It’s social glue… Because if you’re not accountable, you can do anything.” source

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA

The Truth News — Mon, 09 Jan 2023 01:22:26 +0000

Conviction Integrity Unit

The wrongful conviction of an innocent person should be every prosecutor’s greatest concern
(FUCKING LAUGHABLE AT BEST OC DA IS A HARD NOSED ASHOLE MORON VINDICTIVE 2 FACED PAY TO PLAY CRIMINAL HIMSELF, SO YEAH I CALL BULLSHIT CIU).
A prosecutor’s highest priority should be ensuring innocent people are never prosecuted.

The Conviction Integrity Unit (“CIU”) of the OCDA investigates claims of factual innocence presented by defendants who were convicted in the County of Orange, California.

A defendant or attorney seeking to have a conviction reviewed should complete the Conviction Integrity Intake Form and submit it to the OCDA

ABOUT THE C.I.U.

(THIS C.I.U. IT$ ALL A $HOW, THEY PUT THI$ UNIT HERE TO MAKE THE CITIZEN FEEL LIKE THEY CHECK UP ON $TUFF!
IT$ OBVIOU $ A$ ACTION$ SPEAK LOUDER THAN WORD$, WHICH PROVE$ C.I.U. ARE USELE$$ AND DO NOTHING…. PROVE ME WRONG!)

The wrongful conviction of an innocent person should be every prosecutor’s greatest concern. A prosecutor’s highest priority should be ensuring innocent people are never prosecuted.

The Conviction Integrity Unit (“CIU”) of the OCDA investigates claims of factual innocence presented by defendants who were convicted in the County of Orange, California.

A defendant or attorney seeking to have a conviction reviewed should complete the Conviction Integrity Intake Form and submit it to the OCDA.

OCSD Evidence Booking Audit

If private counsel or pro per defendants wish to abide by the stipulation, they can receive the relevant discovery directly from the DA’s Office without the need for a Pitchess motion or other court order.

Review Administrative Order 20/24

Evidence Audit Stipulation

CIU Intake Digital Form for Electronic Submission Click Hereor below for other languages

Intake forms are available in English, Spanish and Vietnamese.
Digital Intake Forms for Electronic Submission

if faxing or mailing following these directions:

Download the form
Print it out
Fill out the required information

Getting to them the following methods are available:

email to ciu@da.ocgov.com or the updated one (try both with a CC) ciu@ocdapa.org
Fax: 714-834-3076 or
Mail: PO Box 808, Santa Ana, CA 92701

cited https://orangecountyda.org/ciu/

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA

Bureau of Investigation

OCDA OFFICE BUREAU OF INVESTIGATION

The Orange County District Attorney’s Office – Bureau of Investigation supports the prosecutorial and law enforcement endeavors of the District Attorney. It provides a wide range of policing services tasked with suppressing crime and ensuring all criminal cases filed in Orange County are thoroughly investigated.

The Bureau of Investigation (Bureau) is the Orange County District Attorney’s Office (OCDA) law enforcement division. The Bureau is comprised of more than 130 sworn police Investigators who are seasoned law enforcement professionals recruited from other law enforcement agencies. District Attorney Investigators have extensive investigative experience, highly developed technical skills, exemplary work records, and an outstanding personal history. The Bureau also employs 90 non-sworn support team members.

Investigators assist prosecutors in trial by developing leads and locating additional witnesses, uncooperative or reluctant witnesses, ensuring the safety of victims and witnesses, and engaging in trial strategy with their prosecutor partners.

Their work is extensive, includes writing and serving search and arrest warrants, investigating original cases in complex matters, and going the extra mile to ensure the law is enforced in a just, honest, efficient, and ethical manner.

The Bureau’s “Special Assignments” unit responds to and investigates officer-involved shootings, custodial deaths, police officer criminal misconduct allegations, public corruption, and other sensitive or complex investigations. In addition, OCDA Investigators are assigned and participate on 10 different local, state, and federal task forces. These task forces allow law enforcement to leverage the abilities and expertise of the various participating agencies, which results in coordinated and effective investigations of the highest level crimes.

AB 109 Task Force
Automobile Insurance Fraud
Branch Court Services
Child Abduction
Child Abuse
Civil Gang Injunctions
Cyber Crimes
DEA Task Force
Cold Case Homicide Task Force
Consumer Protection
DNA Collection
DNA Investigations
Elder Abuse
Environmental Protection
Family Protection
Felony Panel
Gangs
Homicide
Human Trafficking Task Force
In-Home Support Services Fraud
Insurance Fraud
Juvenile
Major Fraud
Medical Insurance Fraud
Narcotics Enforcement Team
Orange County Auto Theft Task Force (OCATT)
OC Gang Reduction and Intervention Partnership (GRIP)
Orange County Housing Fraud
Orange County Regional Computer Forensics Laboratory (RCFL)
Organized Crime
Professional Standards Division
Protective Services Unit/Threat Assessment
Public Assistance/Welfare Fraud
Real Estate Fraud
Sexual Assault
Sober Living Task Force (SLIP)
Special Assignments/Special Prosecutions
TARGET
Taskforce Review of Homicide and Sex Offenses (TracKRS)
U.S. Marshall Task Force
Vehicular Homicide
Workers Compensation

cited https://orangecountyda.org/bureau/https://orangecountyda.org/bureau/

OCDA Investigator TRUE Expertise as opposed to what they claim in their bullshit spiel above

(expertise at not protecting you the citizen who pays taxes and their salary as a public servant)
(expertise at not protecting your constitutional rights as the citizen who pays taxes and their salary as a public servant)
(expertise at not protecting you the citizen from their own! They have no problem allowing malicious prosecutors to work with malicous police and collude, coordinate, and conspire against your rights, they say FUCK YOUR RIGHTS AND FUCK THE LAW WHEN IT COMES TO THEIR OWN, they want your to EAT SHIT YOU!….. who pays taxes and their salary as a public servant)
(expertise at not helping you secure evidence out of your own cases they hold the evidence to, to prove your point of their illegal activity, they instead TRY TO frame you add cases that clearly violated the constitution in hopes of slinging so much shit your way you cannot afford and think your way out, but IQ 168 this aint a problem for me the citizen who pays taxes and their salary as a public servant)
(expertise at making frivolous malicious cases piled thick as a way to control your rights as a citizen that they do not like your exercising as the citizen who pays taxes and their salary as a public servant)

YOU ARE WORTHLESS JEALOUS BUMBLING LYING MORONS INCAPABLE OF SURVIVAL WITHOUT A GOVERMENT JOB, TOO DUMB TO SURVIVE LIKE A CIVILLIAN

YOU ARE THE REASON PEOPLE SHOULD USE CONTRACEPTIVES, THE ONLY REASON, YOU ARE NOT NEEDED, YOU LIE YOU ARE DUMB AND CORRUPTED = USELESS!
TO SPARE THE INTELLEGENT FROM DEALING WITH YOUR INSANITY OF YOUR INCOMPETANCE AND BIAS

YOUR PARENTS WOULD HAVE SAVED THE GOVERMENT FROM A TORT

YOU ARE GUILTY OF CAUSING LYING ABUSING YOUR POWER HARMING DISOBEYING A COURT ORDER AIDING AND ABETTING A FUGITIVE CHILD ENDANGERMENT AND HARM TOP MY CIVIL RIGHTS AND CONSPIRACY TO HARM MY CIVIL RIGHTS

AND YOU ARE GUILTY ARE HARMING THE REALTIONSHIP TIME WITH MY SON. YOU HAVE HARMED THE REALTIONSHIP BETWEEN Daddy & Son – EACH ONE OF YOU WILL PAY $$ AND YOUR REPUTATION AND ACTIONS WILL BE FOREVER CEMENTED IN WEB HISTORY.

https://goodshepherdmedia.net/daddy-son-suffer/

Maybe CIU should investigate SIU, LHPD, GGPD and the Head DA Todd Spitzer as he is the superior who through pecking order oversees the subordinates under his control. DA Bradbury (subordinate noun/adjective/verb) subordination and subordinate control of my case has committed Malicious Prosecution, he is guilty too of not watching his subordinate as his elected office has duties he is clearly failing and other duties he clearly violates and does run pay to play games as well.

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.”(Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988). This ruling make DA Todd Spitzer Negligent and a conspirator18 U.S. Code § 241 to the violation of my (42-us-code-1983-civil-action ) civil rights and is a violation of code 18 U.S. Code § 242

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability.Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan(1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

WHAT TO KNOW ABOUT THE TRUTH CLICK HERE TO LEARN MORE

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Reporters (Police, D.A & Medical & the Bad Actors)

If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS **INFO BULLETIN Click Here Officers and DA’s for (Procedure to Follow)**

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF files taken from

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

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Zamos v. Stroud – District Attorney Liable for Bad Faith Action

The Truth News — Sat, 07 Jan 2023 11:22:44 +0000

Zamos v. Stroud – District Attorney Liable for Bad Faith Action

The Maliciou$ Prosecutor – Either Ignorant or Vindictive Either Way Sub-Par Individuals that Need Mental Help!

Zamos v. Stroud | Attorney Liable for Bad Faith Action

Jerome ZAMOS et al., Plaintiffs and Appellants,
v.
James T. STROUD et al., Defendants and Respondents.

No. S118032.Supreme Court of California.12 Cal.Rptr.3d 54 (2004) 87 P.3d 802 32 Cal.4th 958

April 19, 2004. As Modified on Denial of Rehearing June 9, 2004. Jerome Zamos, in pro. per., and for Plaintiffs and Appellants.James T. Stroud, in pro per., and for Defendants and Respondents.

Milam & Larsen and Paul A. Larsen, Princeton, MN, for Association of California Insurance Companies as Amicus Curiae on behalf of Defendants and Respondents.

BROWN, J.

The question presented by this case is whether, assuming the other elements of the tort are established, an attorney may be held liable for malicious prosecution [bad faith action] when he commences a lawsuit properly but then continue‘s to prosecute it after learning it is not supported by probable cause.^[1] We conclude an attorney may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause.

I. FACTUAL AND PROCEDURAL BACKGROUND^[2]

The instant case for malicious prosecution is based upon a lawsuit (the fraud lawsuit) brought by Patricia Brookes (Brookes) — who is named as a defendant in this case but is not a party to this appeal — against [Jerome Zamos and Odion L. Okojie (collectively Zamos)]. Zamos had represented Brookes in another lawsuit (the foreclosure lawsuit) arising from the foreclosure on her house. Jerome Zamos and [ ] Okojie practiced law together. Jerome Zamos was the attorney who primarily represented Brookes in the foreclosure lawsuit, although Okojie made some appearances in that case.

After a jury trial of the foreclosure lawsuit, when it appeared that the jury was deadlocked, Brookes settled the lawsuit against some of the defendants in that case in exchange for $250,000 paid by those settling defendants as damages for emotional distress. Out of that $250,000, Zamos received $83,333.33 as a contingency fee, and Brookes received $166,666.67. As part of the settlement, Brookes expressly released all claims to her house. The terms of the settlement agreement were stated on the record before the court at two separate hearings. Brookes appeared by telephone at the first hearing, held on October 27, 1995, and appeared personally at the second hearing, held on October 30, 1995.

Almost two years later, in 1997, Brookes sued Zamos for fraud, among other claims, based upon certain alleged representations Zamos made to induce her to settle the foreclosure lawsuit. Brookes alleged that Jerome Zamos told her that (1) he would continue to represent her (to judgment) against the nonsettling defendants in the foreclosure lawsuit, (2) he would substitute into and represent Brookes in a malpractice lawsuit Brookes filed against her former attorneys (the malpractice lawsuit), (3) he would have her house returned to her, and (4) he would withdraw from representing her in the foreclosure lawsuit if Brookes did not accept the settlement. Brookes also alleged, among other things, that Mr. Zamos never intended to keep his first three promises and that Zamos withdrew from representing her against the nonsettling defendants, never substituted into the malpractice lawsuit, and never tried to have her house returned to her.

[James T. Stroud, Van T. Do, and their law firm, Stroud & Do (collectively Stroud)] represented Brookes in the fraud lawsuit. In October 1997, shortly after Brookes’s fraud lawsuit was served on Odion Okojie, Zamos sent to Stroud reporter’s transcripts of three hearings in the foreclosure lawsuit, which transcripts Zamos contended proved that Brookes’s fraud claim had no merit. The first two hearings reflected in the transcripts were those held on October 27, 1995 and October 30, 1995, and the transcripts show that Brookes was told and agreed that she was releasing all claims to her house and that Zamos would not substitute into the malpractice 57 *57 lawsuit. The third hearing, held on January 29, 1996, was a hearing on Zamos’s motion to be relieved as counsel in the foreclosure lawsuit. During that hearing, Jerome Zamos explained that he had submitted all of the paperwork necessary for entry of default against the nonsettling defendants, and the trial court explained to Brookes that Zamos would be relieved as counsel and that Brookes would be responsible for bringing the default to judgment. When the trial court asked Brookes whether “there [was] a problem” with relieving Zamos as counsel, Brookes responded, “No, not really.” The transcript even shows that Brookes contended that Zamos was never her attorney of record, and she complained that Zamos forced her to come into court for the hearing; she asked the court, “Why couldn’t he just send me whatever to be relieved of counsel?” A short time later, Brookes told the court, “I don’t care if you sign him off or not. He’s never been on.”

After Stroud and Brookes refused to dismiss the fraud lawsuit against Zamos despite these transcripts, Zamos moved for summary judgment. In opposition to Zamos’s motion for summary judgment, Stroud submitted a declaration signed by Brookes in which Brookes stated, among other things, that she agreed to settle the foreclosure lawsuit in reliance upon Zamos’s promises to (1) continue representing her against the nonsettling defendants, (2) represent her in the malpractice lawsuit, and (3) have her house returned to her. The trial court questioned whether Brookes could establish that she was damaged as a result of Zamos’s alleged fraud, but the court nonetheless denied Zamos’s motion, although it did so “reluctantly,” finding that Brookes’s declaration raised a triable issue of fact regarding whether Zamos made the alleged promises.

Brookes’s fraud lawsuit proceeded to trial before a judge who had not been the judge in any of the other proceedings in that case. Before the trial began, the trial judge informed the parties that he had read the transcripts of the three hearings discussed above in preparation for ruling on several motions. Based on the judge’s understanding of Brookes’s anticipated testimony, he warned Mr. Stroud several times that he needed to advise Brookes of her Fifth Amendment rights, and that he would notify the district attorney’s office if Brookes’s testimony at trial contradicted those transcripts because such testimony would be perjurious.

[Carl A.] Taylor and [Nancy M.] Peterson testified at the trial. Apparently (although the record is not entirely clear), Brookes was unable to testify due to health reasons, and Zamos had to put on the defense before the plaintiff’s case-in-chief was completed. When Brookes failed to appear after all other witnesses had completed their testimony, Stroud asked for a continuance to allow her an additional opportunity to appear. The trial court denied Stroud’s request and granted Zamos’s motion for a nonsuit. In granting the motion, the court found that, even if Brookes testified in accordance with the offers of proof that had been made, “no reasonable jury would ever provide a judgment for [Brookes].” In addition, the court found that, based upon the transcripts of the hearings regarding the settlement of the foreclosure lawsuit, Brookes’s settlement of that lawsuit “acts as a bar probably in the form of estoppel to [Brookes’s fraud lawsuit].”

Following entry of judgment in the fraud lawsuit, Zamos filed the instant malicious prosecution action against Brookes, Stroud, Taylor, and Peterson. Zamos alleged on information and belief that Taylor encouraged Brookes to file the fraud lawsuit 58 *58against Zamos and engaged Stroud to represent Brookes, and that Peterson urged Brookes to file the fraud lawsuit and gave false testimony to assist Brookes in prosecuting the lawsuit. Zamos also alleged that defendants prosecuted the fraud lawsuit to extort an unwarranted settlement by Zamos.

Stroud, Taylor, and Peterson filed a joint anti-SLAPP^[3] motion in which they argued that Zamos could not show a reasonable probability of success on the malicious prosecution claim. Stroud asserted that Zamos cannot show that the fraud lawsuit was brought without probable cause because Stroud’s decision to file the action was based upon (1) Brookes’s statements regarding Zamos’s alleged promises; (2) corroboration by Peterson and, to a lesser degree, by Taylor; and (3) the timing of Zamos’s alleged promises, Zamos’s receipt of the contingency fee from the settlement, and Zamos’s motion to be relieved as counsel in the foreclosure lawsuit. Taylor and Peterson asserted that Zamos [could not] hold them liable for malicious prosecution because their sole involvement with the fraud lawsuit was as witnesses, and thus they [were] protected by the litigation privilege.

In opposition to the anti-SLAPP motion, Zamos presented evidence that shortly after the fraud lawsuit was filed Stroud received the transcripts that Zamos contended gave notice to Stroud that the fraud lawsuit had no merit. Zamos also presented evidence that Taylor sought counsel to represent Brookes in the fraud lawsuit and gave assistance to Stroud during Peterson’s deposition. (Taylor graduated from law school, although apparently he is not a licensed attorney.) Zamos contended that this evidence shows that Taylor was actively involved in maliciously prosecuting the fraud lawsuit. Finally, Zamos presented evidence that Peterson was not present or within hearing distance when Jerome Zamos spoke with Brookes about the settlement agreement in the foreclosure lawsuit, and therefore Peterson is liable for malicious prosecution because her assertion that she heard Mr. Zamos make the alleged promises at issue in the fraud lawsuit was demonstrably false.

The trial court granted the anti-SLAPP motion as to all of the moving parties. As to Stroud, the court found that Stroud had probable cause to bring the lawsuit based upon Brookes’s representations that were corroborated by Taylor and Peterson. The court held that Taylor and Peterson were immune from liability under the “common law witness immunity doctrine” set forth in Briscoe v. LaHue (1983) 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 and Silberg v. Anderson (1990) 50 Cal.3d 205, 214, 266 Cal.Rptr. 638, 786 P.2d 365. The court awarded $3,000 in attorney fees to Taylor and $3,000 in attorney fees to Peterson. Zamos timely appealed from the trial court’s order dismissing the entire action against Stroud, Taylor, and Peterson and awarding attorney fees.

[The Court of Appeal affirmed the dismissal as to Taylor and Peterson, holding that Zamos failed to meet their burden to demonstrate that their malicious prosecution claim would succeed against Taylor and Peterson. However, the Court of Appeal reversed the dismissal as to Stroud, “hold[ing] that Zamos met his burden with respect to Stroud because we conclude that an attorney may be liable for malicious prosecution if the attorney continues 59 *59 to prosecute a lawsuit after discovery of facts showing the lawsuit has no merit.”]

[Both plaintiffs Jerome Zamos and Odion Okojie and defendants James Stroud and Van Do petitioned this court for review. Defendants’ petition was granted; plaintiffs’ petition was denied.]

[We affirm the judgment of the Court of Appeal.]

II. DISCUSSION

A. Interface Between Anti-SLAPP Statute and Malicious Prosecution

Code of Civil Procedure section 425.16, the anti-SLAPP statute, provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Id., § 425.16, subd. (b)(1).) Under this statute, the party moving to strike a cause of action has the initial burden to show that the cause of action “aris [es] from [an] act … in furtherance of the [moving party’s] right of petition or free speech.” (Ibid.; Equilon, supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Once that burden is met, the burden shifts to the opposing party to demonstrate the “probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1); Equilon, supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) “To satisfy this prong, the plaintiff must state[ ] and substantiate[] a legally sufficient claim. [Citation.] Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”‘ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, 3 Cal.Rptr.3d 636, 74 P.3d 737, fn. omitted (Jarrow Formulas).)

The parties agree that plaintiffs’ malicious prosecution action arises from acts in furtherance of defendants’ right of petition or free speech.^[4] Thus, the issue is whether plaintiffs presented evidence in opposition to defendants’ anti-SLAPP motion that, if believed by the trier of fact, was sufficient to support a judgment in plaintiffs’ favor. Whether plaintiffs have established a prima facie case is a question of law. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, 123 Cal.Rptr.2d 19, 50 P.3d 733 (Wilson) [“In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ([Code Civ. Proc.,] § 425.16, subd. (b)(2)); though the court does not weighthe credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim”].)

B. Liability for Continuing to Prosecute Lawsuit Found to Lack Merit

Previously, this court has characterized one of the elements of the tort of malicious prosecution as commencing, bringing, or initiating an action without probable 60 *60cause. “`To establish a cause of action for the malicious prosecution, of a civil proceeding a plaintiff must plead and prove that the prior action (1) was commencedby or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ (Bertero [v. National General (1974) 13 Cal.3d 43,] 50, 118 Cal.Rptr. 184, 529 P.2d 608 [(Bertero)].” (Crowley v. Katleman (1994) 8 Cal.4th 666, 676, 34 Cal.Rptr.2d 386, 881 P.2d 1083 (Crowley), italics added.)

Defendants contend continuing to prosecute a lawsuit discovered to lack probable cause does not constitute the tort of malicious prosecution, and in making this argument they rely heavily on the torts being a disfavored cause of action.

The tort of malicious prosecution is disfavored both because of its `potential to impose an undue “chilling effect” on the ordinary citizen’s willingness to report criminal conduct or to bring a civil dispute to court’ [(Sheldon Appel Co. v. Albert Oliker (1989) 47 Cal.3d 863, 872, 254 Cal.Rptr. 336, 765 P.2d 498 (Sheldon Appel Co.)]) and because, as a means of deterring excessive and frivolous lawsuits, it has the disadvantage of constituting a new round of litigation itself (id. at p. 873, 254 Cal.Rptr. 336, 765 P.2d 498).” (Wilson, supra, 28 Cal.4th at p. 817, 123 Cal.Rptr.2d 19, 50 P.3d 733.) For these reasons, we have declined to extend the scope of the tort. (Crowley, supra, 8 Cal.4th at p. 680, 34 Cal.Rptr.2d 386, 881 P.2d 1083; Sheldon Appel Co., at p. 873, 254 Cal.Rptr. 336, 765 P.2d 498.)

On the other hand, we have cautioned that this convenient phrase, i.e., the characterization of malicious prosecution as a disfavored cause of action, should not be employed to defeat a legitimate cause of action or to invent [ ] new limitations on the substantive right, which are without support in principle or authority. (Bertero, supra, 13 Cal.3d at p. 53, 118 Cal.Rptr. 184, 529 P.2d 608; see Crowley, supra, 8 Cal.4th at p. 680, 34 Cal.Rptr.2d 386, 881 P.2d 1083.)

Confining the tort of malicious prosecution to the initiation of a suit without probable cause would be, we conclude, without support in authority or in principle.

1. Authority

The question we address today is a question of first impression in this court, and was first addressed by a California Court of Appeal only two years ago.^[5] However, so far as our research reveals, the rule in every other state that has addressed the question is, and in many states has long been, that the tort of malicious prosecutiondoes include continuing to prosecute a lawsuit discovered to lack probable cause.

Over 25 years ago the drafters of the Restatement Second of Torts (Restatement) stated that one who continues a civil proceeding that has properly been begun or one who takes an active part in its continuation for an improper purpose after he has learned that there is no probable 61 *61 cause for the proceeding becomes liable as if he had then initiated the proceeding. (Rest., 674, com. c, p. 453.)^[6] Indeed, almost 80 years ago Corpus Juris, in reciting the elements of an action for malicious prosecution, stated the first element as the commencement or continuance of an original criminal or civil judicial proceeding. (38 C.J. (1925) Malicious Prosecution, 5, p. 386, italics added; see 34 Am.Jur. (1941) Malicious Prosecution, 26, p. 718.)^[7]

The Restatement’s position on this question has been adopted or was anticipated by the courts of a substantial number of states: Alabama (Laney v. Glidden Co., Inc.(1940) 239 Ala. 396, 194 So. 849, 851-852); Arizona (Smith v. Lucia (Ct.App.1992) 173 Ariz. 290, 842 P.2d 1303, 1308); Arkansas (McLaughlin v. Cox (1996) 324 Ark. 361, 922 S.W.2d 327, 331-332); Colorado (Slee v. Simpson (1932) 91 Colo. 461, 15 P.2d 1084, 1085); Idaho (Badell v. Beeks (1988) 115 Idaho 101, 765 P.2d 126, 128); Iowa (Wilson v. Hayes (Iowa 1990) 464 N.W.2d 250, 264); Kansas (Nelson v. Miller(1980) 227 Kan. 271, 607 P.2d 438, 447-448); Mississippi (Benjamin v. Hooper Electronic Supply Co., Inc. (Miss.1990) 568 So.2d 1182, 1189, fn. 6); New York (Broughton v. State of New York (1975) 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310); Ohio (Siegel v. O.M. Scott & Sons Co. (Ohio Ct.App.1943) 73 Ohio App. 347, 56 N.E.2d 345, 347); Oregon (Wroten v. Lenske (1992) 114 Or.App. 305, 835 P.2d 931, 933-934); Pennsylvania (Wenger v. Philips (1900) 195 Pa. 214, 45 A. 927); and Washington (Banks v. Nordstrom, Inc. (1990) 57 Wash.App. 251, 787 P.2d 953, 956-957).

Even more significantly, defendants have not brought to our attention, nor has our own research revealed, a single state that has declined to adopt the Restatements view in this regard.

Defendants’ position, that the tort of malicious prosecution does not include continuing a lawsuit discovered to lack probable cause, is no more supported by the decisions of this court than it is by out-of-state authority.

Defendants rely upon two decisions of Division Seven of the Second District — Swat-Fame, supra, 101 Cal.App.4th 613, 124 Cal.Rptr.2d 556 and Vanzant, supra, 96 Cal.App.4th 1283, 118 Cal.Rptr.2d 48. In Swat-Fame, the plaintiff in a malicious prosecution action contended “a party can be held liable for malicious prosecution even if he or she first becomes aware of facts that negate the claim after the litigation is commenced. . . .” (Swat-Fame, at pp. 627-628, 124 Cal.Rptr.2d 556.) Reiterating the position it had taken five 62 *62 months earlier in Vanzant, Division Seven of the Second District Court of Appeal rejected the contention. (Id. at p. 628, 124 Cal.Rptr.2d 556.) Vanzant relied upon this courts decision in Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 226 Cal.Rptr. 90, 718 P.2d 77 (Coleman) for the proposition that “California courts have typically refused to permit malicious prosecution claims where, as here, the claim is based on the continuation of a properly initiated existing proceeding.” (Vanzant, at pp. 1290-1291, 118 Cal.Rptr.2d 48.)

Coleman is distinguishable. In order to establish a cause of action for malicious prosecution, a plaintiff must prove “`the prior action . . . was commenced by or at the direction of the defendant [in the malicious prosecution action].’ [Citation.]” (Coleman, supra, 41 Cal.3d at p. 793, 226 Cal.Rptr. 90, 718 P.2d 77, italics added.) In Coleman,the underlying action was commenced by the plaintiffs in the malicious prosecution action. Therefore, in order to establish their cause of action against the defendant’s insurer for malicious prosecution, the plaintiffs argued that the insurer, in maliciously causing the defendant to file a frivolous appeal, caused the initiation of a separate action. This is the argument the Coleman court rejected.

In the underlying action in Coleman, the survivors of a man who drowned in a city swimming pool brought a wrongful death action against the city and were awarded $350,000 in damages. During the pendency of the city’s appeal, the city’s insurer offered the plaintiffs less than half the judgment award to settle, and plaintiffs declined, but later accepted a settlement of $300,000. The plaintiffs then sued the insurer, which allegedly controlled all aspects of the defense, on the ground, among others, of malicious prosecution, claiming the appeal had been frivolous, designed solely to force the plaintiffs to settle for a fraction of the judgment and to enable the insurer to realize interest earnings during the pendency of the appeal based on the differential between the statutory rate of interest and the market rate. (Coleman, supra, 41 Cal.3d at pp. 788-789, 226 Cal.Rptr. 90, 718 P.2d 77.)

The Coleman court distinguished Bertero, supra, 13 Cal.3d 43, 118 Cal.Rptr. 184, 529 P.2d 608. In Bertero, this court held malicious prosecution may include maliciously filing a cross-complaint. “By seeking affirmative relief [through a cross-complaint],” the Bertero court pointed out, the “defendants . . . did more than attempt to repel [the plaintiff’s] attack; they took the offensive in attempting to prosecute a cause of action of their own.” (Bertero, at p. 53, 118 Cal.Rptr. 184, 529 P.2d 608.) “By contrast,” the Coleman court held, “filing an appeal `is not a separate proceeding and has no independent existence’ [citation]; it is merely the continuation of an action. [Citation.] Based on the reasoning of Bertero, a defendant’s appeal cannot be considered a separate action `seeking affirmative relief,’ but rather is merely the continuation of an attempt `to repel’ plaintiff’s attack.” (Coleman, supra, 41 Cal.3d at p. 794, 226 Cal.Rptr. 90, 718 P.2d 77, fn. omitted.)

The operative distinction, then, is between continuing a prosecution and continuing a defense. In Coleman, the defendant in the malicious prosecution action had merely continued its defense of the underlying wrongful death action by causing the filing of the appeal in that action.^[8] Here, according to the evidence presented 63 *63 in opposition to the anti-SLAPP motion, defendants in the malicious prosecution action continued their prosecution of the underlying fraud action after learning it was baseless.

2. Principle

Just as it is without support in authority, the limitation defendants urge is also without support in principle. Malicious prosecution “is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice.” (Bertero, supra, 13 Cal.3d at p. 50, 118 Cal.Rptr. 184, 529 P.2d 608; see Crowley, supra, 8 Cal.4th at p. 677, 34 Cal.Rptr.2d 386, 881 P.2d 1083.) Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset. (See 1 Harper et al., The Law of Torts (3d ed.1996) § 4.3, p. 4:13 [“Clearly, it is as much a wrong against the victim and as socially or morally unjustifiable to take an active part in a prosecution after knowledge that there is no factual foundation for it, as to instigate such a proceeding in the first place”].) As the Court of Appeal in this case observed, “It makes little sense to hold attorneys accountable for their knowledge when they file a lawsuit, but not for their knowledge the next day.”

Moreover, as the Court of Appeal went on to point out, “Holding attorneys liable for the damages a party incurs as a result of the attorneys prosecuting civil claims after they learn the claims have no merit also will encourage voluntary dismissals of meritless claims at the earliest stage possible. Because an attorney will be liable only for the damages incurred from the time the attorney reasonably should have caused the dismissal of the lawsuit after learning it has no merit, an attorney can avoid liability by promptly causing the dismissal of, or withdrawing as attorney in, the lawsuit. This will assist in the efficient administration of justice and reduce the harm to individuals targeted by meritless claims. Moreover, by advising a client to dismiss a meritless case, the attorney will serve the client’s best interests in that the client will avoid the cost of fruitless litigation, and the client’s exposure to liability for malicious prosecution will be limited.”

Defendants contend our holding — that malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause — would be unworkable and therefore contrary to public policy. Defendants assert the holding would be unworkable because it would divert an attorney’s attention away from the zealous representation of his or her client by causing the attorney (1) continually to second-guess the merits of the litigation and (2) to fear retaliation for malicious prosecution if the attorney argues for an extension of the law. We disagree. Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit. (Wilson, supra, 28 Cal.4th at p. 817, 123 Cal.Rptr.2d 19, 50 P.3d 733; Sheldon Appel, supra, 47 Cal.3d at p. 886, 254 Cal.Rptr. 336, 765 P.2d 498.) The same standard will apply to the continuation as to the initiation of a suit. Applying the standard in any given case may be very difficult. However, applying it to the decision to continue to prosecute a case should be no more or less difficult than applying it to the decision to initiate a case.^[9]

For the reasons stated, we conclude an attorney may be held liable for malicious prosecution for continuing to 64 *64 prosecute a lawsuit discovered to lack probable cause.

C. Defendants’ Prima Facie Liability

As we stated earlier, the parties agree that plaintiffs’ malicious prosecution action arises from acts in furtherance of defendants’ right of petition or free speech. Thus, the issue is whether plaintiffs presented evidence in opposition to defendants’ anti-SLAPP motion that, if believed by the trier of fact, was sufficient to support a judgment in plaintiffs’ favor. Plaintiffs, we conclude, did make the required showing.

As the Court of Appeal observed, “Whether the facts known to Stroud constituted probable cause to prosecute the fraud lawsuit is a question of law. (Wilson, supra, 28 Cal.4th at p. 817, 123 Cal.Rptr.2d 19, 50 P.3d 733.) The court must `make an objective determination of the “reasonableness” of [Stroud’s] conduct, i.e., to determine whether, on the basis of the facts known to [Stroud], the institution [and prosecution] of the [fraud lawsuit] was legally tenable.’ (Sheldon Appel, supra, 47 Cal.3d at p. 878, 254 Cal.Rptr. 336, 765 P.2d 498.) The test applied to determine whether a claim is tenable is `whether any reasonable attorney would have thought the claim tenable.’ (Id. at p. 886, 254 Cal.Rptr. 336, 765 P.2d 498.)[¶] In the present case, . . . Stroud presented evidence in support of the anti-SLAPP motion to show that the facts available to Stroud at the time the lawsuit was filed were sufficient to support a cause of action for fraud. But in opposition to the motion, Zamos presented evidence that Stroud was given transcripts shortly after the fraud lawsuit was filedthat, Zamos contends, show[s] that Stroud knew or should have known that the fraud lawsuit had no merit.”

1. Zamos’s alleged promise to represent Brookes in the foreclosure action

Brookes alleged that Jerome Zamos told her he would continue to represent her against the nonsettling defendants in the foreclosure lawsuit. However, at the January 29, 1996 hearing, the judge advised Brookes there was a motion pending to relieve Mr. Zamos in the foreclosure matter. “Is there a problem?” he asked her. “No,” Brookes replied, “other than I can’t understand how Mr. Zamos can be relieved when he’s never been my attorney of record to my knowledge.” After listening to Brookes’s rambling diatribe against Zamos, the judge asked her, “What’s the point?” “The point,” Brookes replied, “is I don’t care if you sign him off or not. He’s never been on.” Brookes was apparently being sarcastic because as the judge pointed out, Mr. Zamos had tried the foreclosure matter and had persisted in obtaining a favorable settlement for her “when lesser lawyers would have just bowed out.” Hearing no objection whatsoever from Brookes regarding Mr. Zamos’s motion to be relieved, the judge, after admonishing Brookes that she “couldn’t have had a better lawyer than Mr. Zamos,” ordered him relieved.

2. Zamos’s alleged promise to represent Brookes in the malpractice action

Brookes alleged that Jerome Zamos told her he would substitute into and represent her in a malpractice lawsuit Brookes had filed against her former attorneys. However,65 *65 as the Court of Appeal stated, the “transcript of [the] October 30, 1995 settlement hearing in the foreclosure lawsuit . . . shows that before Brookes agreed to the settlement, Brookes and Zamos stated on the record that Brookes had changed her mind regarding Zamos’s representation in the malpractice lawsuit and that Zamos was not going to represent Brookes in that lawsuit.”

On Friday, October 27, 1995, in a phone call he placed to Brookes in open court, Jerome Zamos advised Brookes he would represent her in the malpractice action. However, on Monday, October 30, 1995, Mr. Zamos advised the court he would not be doing so, after all, and that Brookes had another attorney who would be representing her in that matter. Brookes, who was present in court on this occasion, acknowledged, “That’s correct, yes.”

Defendants assert “there is testimony from Taylor that he was later told by Brookes that Zamos had promised to get back into the case.” To the contrary, Taylor’s statement was unclear in this regard. In a declaration, Taylor stated Brookes told him “she had been promised that Mr. Zamos would continue with the malpractice lawsuit against [her former attorneys] and that it would be taken to a conclusion as long as the offer to settle was accepted.” However, Taylor did not claim that his second conversation with Brookes occurred after Brookes acknowledged in court on Monday, October 30, that Jerome Zamos was not going to represent her in the malpractice action. Taylor merely stated he spoke to Brookes on “a Friday in late October of 1995” and again “on the following Monday.”

3. Zamos’s alleged promise that Brookes’s house would be returned to her

Brookes alleged that Jerome Zamos promised Brookes he would secure the return of her house. As the Court of Appeal stated, “The October 30, 1995 transcript shows that Brookes was told repeatedly that she would be giving up all claims to her house if she agreed to the settlement.”

Defendants do not dispute this characterization of the record. Instead, defendants claim that, off the record, Jerome Zamos told Brookes “the settlement would be for `post eviction’ damages and that the claim for [her] house could still proceed.”

Contrary to Brookes’s claim that she agreed to the settlement in reliance on an assurance from Jerome Zamos that she would still be able to proceed with an action to have her house returned to her, Brookes initially declined the settlement,complaining that he had never discussed it with her. Then, after having been given an opportunity to consult by phone with someone other than Mr. Zamos, someone who was not an attorney, Brookes decided to accept the settlement.

III. CONCLUSION

Malicious prosecution, we hold, includes continuing to prosecute a lawsuit discovered to lack probable cause. Accordingly, we disapprove of Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th 613, 124 Cal.Rptr.2d 556 and Vanzant v. DaimlerChrysler Corp., supra, 96 Cal.App.4th 1283, 118 Cal.Rptr.2d 48, as well asMorrison v. Rudolph, supra, 103 Cal.App.4th 506, 126 Cal.Rptr.2d 747, insofar as they are inconsistent with the views expressed herein.

Plaintiffs did present evidence in opposition to defendants’ anti-SLAPP motion that, if believed by the trier of fact, was sufficient to support a judgment in plaintiffs’ favor. Therefore, we affirm the judgment 66 *66 of the Court of Appeal reversing the order of the trial court dismissing plaintiffs malicious prosecution claim against defendants.^[10]

WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, CHIN and MORENO, JJ.

[1] As a convenient shorthand, we will refer to this as continuing to prosecute a lawsuit discovered to lack probable cause.

[2] We adopt the Court of Appeal’s statement of the factual and procedural background. Brackets enclosing material in that part of the opinion (other than citations) denote insertions or additions by this court. Defendants James T. Stroud and Van T. Do petitioned for rehearing, and in their petition objected in certain respects to the Court of Appeal’s statement of the facts. (Cal. Rules of Court, rule 28(c)(2).) The petition was denied. In part II.C., we discuss defendants’ objections and find they do not undermine the factual conclusions or the judgment of the Court of Appeal.

[3] [SLAPP stands for strategic lawsuit against public participation. (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon).)]

[4] In Jarrow Formulas, supra, 31 Cal.4th at page 741, 3 Cal.Rptr.3d 636, 74 P.3d 737, we declined to create a categorical exemption from the anti-SLAPP statute for malicious prosecution actions.

[5] Prior to this case, only one division of the Court of Appeal — Division Seven of the Second District — had addressed this question. (Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 627-629, 124 Cal.Rptr.2d 556 (Swat-Fame); Vanzant v. DaimlerChrysler Corp. (2002) 96 Cal.App.4th 1283, 1290-1291, 118 Cal.Rptr.2d 48 (Vanzant).) After the decision in this case was filed, Swat-Fame was followed by Division Three of the Fourth District. (Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 514, 126 Cal.Rptr.2d 747 (Morrison).)

[6] Section 674 of the Restatement (section 674) provides:

“One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if

“(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and

“(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.” (Italics added.)

[7] Corpus Juris Secundum continues to state that “[t]he commencement or continuation of the original proceeding by defendant against plaintiff is essential to an action for malicious prosecution.” (54 C.J.S. (1988) Malicious Prosecution or Wrongful Litigation, § 17, p. 537, italics added.) American Jurisprudence Second concurs, giving the first element of the tort of malicious prosecution as “the institution or continuation of original judicial proceedings by, or at the instance of, the defendant.” (52 Am.Jur.2d (2000) Malicious Prosecution, § 8, p. 145, fns. omitted & italics added.)

[8] Vanzant also relied upon Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 75 Cal.Rptr.2d 83 (Merlet) andAdams v. Superior Court (1992) 2 Cal.App.4th 521, 3 Cal.Rptr.2d 49 (Adams). (Vanzant, supra, 96 Cal.App.4th at pp. 1290-1291, 118 Cal.Rptr.2d 48.) Merlet and Adams are distinguishable, as well. These two cases simply involved application of the familiar rule that subsidiary procedural actions cannot be the basis for malicious prosecution claims. (Merlet, at p. 59, 75 Cal.Rptr.2d 83; Adams, at p. 528, 3 Cal.Rptr.2d 49.)

[9] Counsel who receives interrogatory answers appearing to present a complete defense might act reasonably by going forward with the defendant’s deposition in light of the possibility that the defense will, on testimonial examination, prove less than solid. The reasonableness of counsel’s persistence is, of course, a question of law to be decided on a case-by-case basis, and we have no occasion here to formulatemore detailed rules.

[10] Defendants argued below that under Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 90 Cal.Rptr.2d 408, an opinion we cited with approval in Wilson, supra, 28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733, the trial court’s order had to be affirmed because Zamos lost their motion for summary judgment in the fraud lawsuit. The Roberts court held that a favorable ruling on a motion for summary judgment in the underlying action conclusively establishes probable cause unless that ruling was procured by “materially false facts.” (Roberts, at p. 384, 90 Cal.Rptr.2d 408.) The Court of Appeal rejected defendants’ argument on the ground that “Zamos presented evidence in opposition to the anti-SLAPP motion that, if believed by the trier of fact, demonstrates that the denial of Zamos’s summary judgment motion was procured by materially false facts. As discussed above, the trial court in the fraud lawsuit denied Zamos’s motion for summary judgment `reluctantly,’ because Brookes’ declaration that Zamos made the representations at issue raised a triable issue of fact. In opposition to the anti-SLAPP motion in the instant case, Zamos presented the declaration of Jerome Zamos, in which Mr. Zamos states that he did not make the representations Brookes asserted he made. If the trier of fact in the instant case believes Mr. Zamos’s declaration that he did not make those representations, then the denial of Zamos’s summary judgment motion was procured by materially false facts, and the rule set forth in Roberts does not apply.”

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CACI No. 1501. Wrongful Use of Civil Proceedings

The Truth News — Mon, 20 Jun 2022 08:45:18 +0000

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2022 edition)

MALICIOUS PROSECUTION CACI No. 1501 925 Copyright Judicial Council of California

downland entire Judicial Council of California Civil Jury Instructions CACI Here

1501.Wrongful Use of Civil Proceedings

[Name of plaintiff] claims that [name of defendant] wrongfully brought a lawsuit against [him/her/nonbinary pronoun/it]. To establish this claim, [name of plaintiff] must prove all of the following:

That [name of defendant] was actively involved in bringing [or continuing] the lawsuit;
That the lawsuit ended in [name of plaintiff]’s favor;]
That no reasonable person in [name of defendant]’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against [name of plaintiff];]
That [name of defendant] acted primarily for a purpose other than succeeding on the merits of the claim;
That [name of plaintiff] was harmed; and
That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm. [The law requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 2 above, whether the earlier lawsuit ended in [his/her/nonbinary pronoun/its] favor. But before I can do so, you must decide whether [name of plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]

The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].] [The law [also] requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 3 above, whether [name of defendant] had reasonable grounds for bringing the earlier lawsuit against [him/her/nonbinary pronoun/it]. But before I can do so, you must decide whether [name of plaintiff] has proven the following:

- [List all factual disputes that must be resolved by the jury.] The special [verdict/interrogatory] form will ask for your finding on
- [this/these] issue[s].] New September 2003; Revised April 2008, October 2008

Directions for Use

Malicious prosecution requires that the proceeding have ended in the plaintiff’s favor (element 2) and that the defendant did not reasonably believe that there were any grounds (probable cause) to initiate the proceeding (element 3). Probable cause is to be decided by the court as a matter of law. However, the jury may be required to find some preliminary facts before the court can make its legal determination, including facts regarding what the defendant knew or did not know at the time. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part of the instruction that refers to element of favorable termination is handled in much the same way. If a proceeding is terminated other than on the merits, there may be disputed facts that the jury must find in order to determine whether there has been a favorable termination. (See Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so, include element 2 and also the bracketed part of the instruction that refers to element once these facts are determined, the jury does not then make a second determination as to whether there has been a favorable termination. The matter is determined by the court based on the resolution of the disputed facts. (See Sierra Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726] [element of favorable termination is for court to decide].) Either or both of the elements of probable cause and favorable termination should be omitted if there are no disputed facts regarding that element for the jury to decide.

Element 4 expresses the malice requirement.

Sources and Authority

Public Employee Immunity. Government Code section 821.6.
“Although the tort is usually called ‘malicious prosecution,’ the word ‘prosecution’ is not a particularly apt description of the underlying civil action. The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486, internal citations omitted.)
“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
“The remedy of a malicious prosecution action lies to recompense the defendant who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records.” (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
“The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83], internal citation omitted.)

“[The litigation privilege of Civil Code section 47] has been interpreted to apply to virtually all torts exceptmalicious prosecution.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
“Liability for malicious prosecution is not limited to one who initiates an action. A person who did not file a complaint may be liable for malicious prosecution if he or she ‘instigated’ the suit or ‘participated in it at a later time.’ ” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 873 [193 Cal.Rptr.3d 912].)
“[A] cause of action for malicious prosecution lies when predicated on a claim for affirmative relief asserted in a cross-pleading even though intimately related to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
“A claim for malicious prosecution need not be addressed to an entire lawsuit; it may . . . be based upon only some of the causes of action alleged in the underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
“[F]avorable termination requires favorable resolution of the underlying action in its entirety, not merely a single cause of action. ‘[I]f the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.’ ” (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th 117, 128 [277 Cal.Rptr.3d 501], internal citation omitted.)
“[A] lawyer is not immune from liability for malicious prosecution simply because the general area of law at issue is complex and there is no case law with the same facts that establishes that the underlying claim was untenable. Lawyers are charged with the responsibility of acquiring a reasonable understanding of the law governing the claim to be alleged. That achieving such an understanding may be more difficult in a specialized field is no defense to alleging an objectively untenable claim.” (Franklin Mint Co.,supra, 184 Cal.App.4th at p. 346.)
“Our repeated references in Bertero to the types of harm suffered by an ‘individual’ who is forced to defend against a baseline suit do not indicate . . . that a malicious prosecution action can be brought only by an individual. On the contrary, there are valid policies which would be furthered by allowing nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on remand from United States Supreme Court at 33 Cal.3d 727 [but holding that public entity cannot sue for malicious prosecution].)“[T]he courts have refused to permit malicious prosecution claims when they are based on a prior proceeding that is

less formal or unlike the process in the superior court (i.e., a small claims hearing, an investigation or application not resulting in a formal proceeding),
purely defensive in nature, or
(3) a continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p. 60.)

“[I]t is not enough that the present plaintiff (former defendant) prevailed in the action. The termination must ‘ “reflect on the merits,” ’ and be such that it ‘tended to indicate [the former defendant’s] innocence of or lack of responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
“ ‘The entry of summary judgment for the defense on an underlying claim on grounds of insufficient evidence does not establish as a matter of law that the litigant necessarily can “state[] and substantiate[]” . . . a subsequent malicious prosecution claim.’ ” (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1120 [248 Cal.Rptr.3d 200].)
“ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim. . . .’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
“[Code of Civil Procedure] Section 581c, subdivision (c) provides that where a motion for judgment of nonsuit is granted, ‘unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.’ . . . [¶] We acknowledge that not every judgment of nonsuit should be grounds for a subsequent malicious prosecution action. Some will be purely technical or procedural and will not reflect the merits of the action. In such cases, trial courts should exercise their discretion to specify that the judgment of nonsuit shall not operate as an adjudication upon the merits.” (Nunez, supra, 241 Cal.App.4th at p. 874.)
“ ‘ “[T]hat a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause [citation] does not alter the rule there must first be a favorable termination of the entire action.” ’ Thus, if the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 64 [228 Cal.Rptr.3d 605], internal citation omitted.)
“ ‘ “A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. [Citations.] ‘It is not enough, however, merely to show that the proceeding was dismissed.’ [Citation.] The reasons for the dismissal of the action must be examined to determine whether the termination reflected on the merits.” [Citations.]’ Whether that dismissal is a favorable termination for purposes of a malicious prosecution claim depends on whether the dismissal of the [earlier] Lawsuit is considered to be on the merits reflecting [plaintiff’s ‘innocence’ of the misconduct alleged.” (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 [141 Cal.Rptr.3d 338], internal citations omitted.)
“If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations omitted.)
“[W]hen a dismissal results from negotiation, settlement, or consent, a favorable termination is normally not recognized. Under these latter circumstances, the dismissal reflects ambiguously on the merits of the action.” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 184-185 [156 Cal.Rptr. 745], internal citations omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at p. 882.)
“Not every case in which a terminating sanctions motion is granted necessarily results in a ‘favorable termination.’ But where the record from the underlying action is devoid of any attempt during discovery to substantiate allegations in the complaint, and the court’s dismissal is justified by the plaintiff’s lack of evidence to submit the case to a jury at trial, a prima facie showing of facts sufficient to satisfy the ‘favorable termination’ element of a malicious prosecution claim is established . . . .” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 219 [105 Cal.Rptr.3d 683].)
“[T]he existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury . . . . [¶] [It] requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors . . . .” (Sheldon Appel Co., supra, 47 Cal.3d at p. 875.)
“When there is a dispute as to the state of the defendant’s knowledge and the existence of probable cause turns on resolution of that dispute, . . . the jury must resolve the threshold question of the defendant’s factual knowledge or belief. Thus, when . . . there is evidence that the defendant may have known that the factual allegations on which his action depended were untrue, the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause to institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 881, internal citations omitted.)
“Whereas the malice element is directly concerned with the subjective mental state of the defendant in instituting the prior action, the probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 878,.)
“ ‘The benchmark for legal tenability is whether any reasonable attorney would have thought the claim was tenable. [Citation.]’ ” (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 114 [151 Cal.Rptr.3d 117], internal citation omitted.)
“ ‘The facts to be analyzed for probable cause are those known to the defendant [in the malicious prosecution action] at the time the underlying action was filed.’ ” (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264 [245 Cal.Rptr. 888], internal citations omitted.)
“A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Soukup v. Law Offıces of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638, 139 P.3d 30].)
“[W]e reject their contention that unpled hidden theories of liability are sufficient to create probable cause.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542 [161 Cal.Rptr.3d 700].)
“California courts have held that victory at trial, though reversed on appeal, conclusively establishes probable cause.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383 [90 Cal.Rptr.2d 408], original italics.)
“California courts have long embraced the so-called interim adverse judgment rule, under which ‘a trial court judgment or verdict in favor of the plaintiff or prosecutor in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court.’ This rule reflects a recognition that ‘[c]laims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.’ That is to say, if a claim succeeds at a hearing on the merits, then, unless that success has been procured by certain improper means, the claim cannot be ‘totally and completely without merit.’ Although the rule arose from cases that had been resolved after trial, the rule has also been applied to the ‘denial of defense summary judgment motions, directed verdict motions, and similar efforts at pretrial termination of the underlying case.’ ” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776-777 [221 Cal.Rptr.3d 432, 400 P.3d 1], internal citations omitted.)
“[T]he fraud exception requires ‘ “knowing use of false and perjured testimony.” ’ ” (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 452 [117 Cal.Rptr.3d 3].)
“Probable cause may be present even where a suit lacks merit. . . . Suits which all reasonable lawyers agree totally lack merit – that is, those which lack probable cause – are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.” (Roberts, supra, 76 Cal.App.4th at p. 382.)
“[A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 970 [12 Cal.Rptr.3d 54, 87 P.3d 802].)
“Although attorneys may rely on their clients’ allegations at the outset of a case, they may not continue to do so if the evidence developed through discovery indicates the allegations are unfounded or unreliable.“ (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1121.)
“[W]here several claims are advanced in the underlying action, each must be based on probable cause.” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 459 [197 Cal.Rptr.3d 227].)
“As an element of the tort of malicious prosecution, malice at its core refers to an improper motive for bringing the prior action. As an element of liability it reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement. Thus the cases speak of malice as being present when a suit is actuated by hostility or ill will, or for some purpose other than to secure relief. It is also said that a plaintiff acts with malice when he asserts a claim with knowledge of its falsity, because one who seeks to establish such a claim ‘can only be motivated by an improper purpose.’ A lack of probable cause will therefore support an inference of malice.” (Drummond, supra, 176 Cal.App.4th at pp. 451-452, internal citations omitted.)
A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence.” (Silas v. Arden (2013) 213 Cal.App.4th 75, 90 [152 Cal.Rptr.3d 255].)
“Because malice concerns the former plaintiff’s actual mental state, it necessarily presents a question of fact.” (Drummond, supra, 176 Cal.App.4th at p. 452.)
“ ‘Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.’ ‘[M]alice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause.’ ” (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1122,.)
“Negligence does not equate with malice. Nor does the negligent filing of a case necessarily constitute the malicious prosecution of that case.” (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1468 [242 Cal.Rptr. 562].)
“The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose.” (Downey Venture v. LMI Insurance Co. (1998) 66 Cal.App.4th 478, 494 [78 Cal.Rptr.2d 142], internal citations omitted.)

cited https://www.justia.com/trials-litigation/docs/caci/1500/1501/

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High-level OC prosecutor dismissed from District Attorney’s Office

The Truth News — Sun, 06 Mar 2022 01:37:47 +0000

High-level OC prosecutor dismissed from District Attorney’s Office

District Attorney Todd Spitzer said his staff ‘will not violate the Constitution and the rights of defendants in order to get convictions’

By TONY SAAVEDRA | tsaavedra@scng.com and SEAN EMERY | semery@scng.com | Orange County Register

Top-level Orange County prosecutor Ebrahim Baytieh was fired Wednesday from the District Attorney’s Office after an internal investigation into withholding evidence in a murder case.

District Attorney Todd Spitzer said the withheld evidence forced him in August to request a new murder trial for a man convicted in 2010 of mutilating his victim in Sunset Beach and burning the body. Paul Gentile Smith had been serving a life term in prison without the possibility of parole for the 1988 slaying of his marijuana dealer, Robert Haugen.

Orange County sheriff’s deputies and prosecutors allegedly violated Smith’s constitutional rights by placing him in a jail cell where he was targeted by three jailhouse informants and then telling defense attorneys about only one.

“I immediately hired an independent law firm to investigate whether there was a failure by the prosecutor to properly turn over discovery and whether the prosecutor was truthful in all subsequent and related inquiries by the United States Department of Justice,” Spitzer said in a prepared statement.

The report was completed Tuesday, Feb. 8, Spitzer said, and as a result Baytieh is no longer employed by the District Attorney’s Office.

His statement did not mention Baytieh, a senior assistant district attorney, by name, but was made in response to an inquiry by the Orange County Register into Baytieh’s employment status.

“I made it unequivocally clear when I ran for Orange County District Attorney that I would not tolerate the ‘win at all costs’ mentality of the prior administration,” Spitzer said. “My prosecutors will not violate the Constitution and the rights of defendants in order to get convictions.”

Baytieh, who is running for Superior Court judge, did not return telephone messages seeking comment.

Spitzer less than a year ago publicly praised Baytieh’s ethics, referring to him as a pinnacle of integrity and an office role model in an interview with a Register reporter in which the D.A. also described Baytieh as “someone you look up to to guide you.”

Baytieh, who in 2012 was named Prosecutor of the Year by the California District Attorneys Association, prosecuted a wide range of cases — including homicides, sexual assaults, public corruption and human trafficking — before becoming a senior deputy district attorney in 2018. His candidacy for judge in the June 7 primary election has captured dozens of endorsements from local judges and lawyers.

Under then-D.A. Tony Rackauckas, Baytieh publicly pushed back against accusations that prosecutors and the Sheriff’s Department used a clandestine system of misusing jail informants. Spitzer, who made the so-called snitch scandal a focus of his campaign against Rackauckas, opted to keep Baytieh in one of the department’s most prominent positions. Baytieh later told a Register reporter that he had worked behind the scenes to create a more restrictive policy regarding the use of informants.

In the Smith case, authorities say prosecutors at the time of trial failed to provide the defense a recording of one of the jailhouse informants used in their investigation. The recording was not turned over until 10 years after the trial, when Baytieh, the prosecutor in the case, indicated he first found out about it.

Smith’s original conviction was thrown out last year because sheriff’s deputies said they would not testify if called during a hearing on the misuse of jailhouse informants in the case.

Assistant Public Defender Scott Sanders, Smith’s attorney, alleged that Baytieh’s conduct infected other cases.

“In the near future we will be detailing how not only was critical evidence concealed from Mr. Smith for more than a decade but how members of the prosecution team conspired to conceal this evidence from dozens of other defendants who were entitled to learn about it — all so they could ensure that our client die in prison without ever knowing what happened,” Sanders said.

Penal Code 995 Motion to Dismiss in California

The Truth News — Fri, 18 Jun 2021 21:38:49 +0000

PC 995 Motion: Request to Dismiss a Felony after Preliminary Hearing

Penal Code 995 Motion to Dismiss in California

Penal Code “995 Motions” in California

In California state criminal prosecutions, a Penal Code 995 Motion is a defense motion asking the court to dismiss one or more felony counts on the grounds that they were improperly sustained at the preliminary hearing. The motion can be brought after the preliminary hearing but before trial.

A 995 motion (pronounced “nine-nine-five”) is essentially an appeal of the preliminary hearing judge’s decision to bind the case over for trial. Technically it is known as a “motion to set aside the information.” “Information” is the legal name for the criminal complaint in a California felony prosecution.

Thus a 995 motion asks the trial judge to “set aside” (dismiss) all or part of the complaint. The judge will grant the motion if there were insufficient legal grounds to bind the defendant over for trial.

What is a Preliminary Hearing?

A quick not about preliminary hearings: A preliminary hearing is similar to a mini-trial where the prosecutor must demonstrate to a criminal court judge that there is probable cause to believe that the defendant committed the alleged offense(s). Probable cause is a much lower burden than proof beyond a reasonable doubt (see below). The district attorney usually calls the arresting officers to testify at the preliminary hearing, but alleged victim’s can also be called to testify. The preliminary hearing has more relaxed evidentiary rules than a trial and there is no jury present at a preliminary hearing. If the district attorney is successful, the court will “hold the defendant to answer (for trial).” If the district attorney is not successful at the preliminary hearing the criminal charges will be dismissed without further request to the court.

Note: Sometimes, a defendant can be ‘held to answer’ on some crimes, but not all crimes alleged. If the defendant is charged with misdemeanor and felony crimes, and only the misdemeanor crimes are sustained at the preliminary hearing, then the defendant is not ‘held to answer’ on those crimes; rather, the case proceeds to trial or pretrial stage (case is usually set for pretrial in the misdemeanor court).

If the defendant is ‘held to answer’ after the preliminary hearing, then the district attorney will file a new criminal charges against the defendant. The new criminal charges are contained in a document called an “information.”

When Do I File a PC 995 Motion

A PC 995 motion is filed by the defendant after the defendant was “held to answer” to criminal charges by the judge at a preliminary hearing. A PC 995 motion must be heard before the start of a trial on the criminal allegations.

Will a Judge Grant My PC 995 Motion

As stated, a PC 995 motion is a request to have a judge reconsider another judge’s decision as to whether there is sufficient evidence to ‘hold the defendant to answer.’ Thus, PC 995 motions are usually difficult motions upon which to succeed. Nevertheless, a PC 995 motion will be granted if the criminal defendant can show that the earlier judge held the defendant to answer without probable cause, or that the defendant was illegal committed.

Probable Cause: Probable cause is defined as reasonable and strong suspicion, based on articulated facts, that demonstrate that the defendant is more likely than not guilty of the alleged offense. In essence, this means that a PC 995 motion asks a subsequent judge to reconsider the balance of evidence offered at the preliminary hearing. A judge is not likely to overturn the preliminary hearing judge’s decision without some articulated reason(s) listed in a PC 995 motion to dismiss.

Note: Probable Cause is not equal to “proof beyond a reasonable doubt.” This means that the defendant can be ‘held to answer’ on a criminal allegation (move forward to trial) without the judge making a determination as to whether the judge believes the defendant is guilty beyond a reasonable doubt. The ‘beyond a reasonable doubt’ language is a ‘burden of proof’ that the district attorney must meet at jury trial (or court trial) on the criminal allegations. For more information, see Insufficient Evidence Defense.

Common PC 995 “Lack of Probable Cause” Claims

A PC 995 motion to dismiss is common where the judge basis her ‘holding order’ decision on unreliable evidence at the preliminary hearing (i.e. clearly unreliable witness statements, use of multi-level hearsay, lack of foundation to introduce prosecution evidence, etc.).

Note: The “probable cause” standard applies to every element of the alleged felony offense. For example, if the defendant is charged with felony vandalism because the amount of the loss to the alleged victim is alleged to be above $950, but the district attorney shows no evidence of the amount of the loss to the alleged victim at the preliminary hearing, then the defendant may file a PC 995 motion to dismiss the felony vandalism allegation.

Illegal Commitment: A defendant is “illegally Committed” when she is denied certain rights at the preliminary hearing. These preliminary hearing rights include:

Right to a ‘continuous’ and uninterrupted preliminary hearing (no unreasonable delay once the preliminary hearing starts);
No attorney provided to the defendant during the preliminary hearing and/or no warning to the defendant that she has a right to a lawyer for the preliminary hearing;
No opportunity given to the defendant to cross-examine witnesses;
Due Process violation (i.e. failure of the district attorney to provide known exculpatory evidence before the preliminary hearing, use of illegally obtain evidence, failure to timely file the “information,” etc.), and more.

Note: The district attorney has 15 days from the last day of the preliminary hearing to file the “information” against the defendant. The information is the charging document that starts the case on the road to trial. A defendant will enter a plea as to the allegations in the “information” even though the defendant has already entered a plea at the arraignment stage. For this reason, the process of entering a plea on the “information” is called the “information arraignment.” The reason the defendant enters another plea in these felony cases is that the preliminary hearing will often, but not always, result in different charges than those criminal charges that started the defendant’s criminal case.

Example I: If the defendant was initially charged with one count of lewd and lascivious acts on a minor (PC 288(a)), but the preliminary hearing prosecutor is able to find more instances of PC 288(a) crimes committed by the defendant at the preliminary hearing, then the prosecution will likely add more PC 288(a) charges in the “information.”

Example II: David is arrested on suspicion of a Residential Burglary (PC 459/460). During the drive to the police station the arresting officer asks David questions about the alleged residential burglary. David is not Mirandized or given any warning that his statements could be used against him in a court of law. Later, at the preliminary hearing, the arresting officer testifies at the preliminary hearing as to David’s statements that were made in the police vehicle. Thereafter, the judge holds the defendant to answer (held to answer at trial for the allegations). Subsequently, David’s attorney files a PC 995 motion to dismiss because the defendant was held to answer based on illegally obtained evidence (use of David’s non-Mirandized statements at the preliminary hearing).

Note: If the only evidence used against the defendant at the preliminary hearing is illegally obtained evidence, then the PC 995 motion to dismiss should be granted. On the other hand, if the evidence used at the preliminary hearing was a mix of illegally obtained evidence and legally obtained evidence, and the legally obtained evidence is sufficient to find probable cause without the use of the illegally obtained evidence, then a PC 995 motion to dismiss based on illegal commitment should not be granted.

PC 995 Motion Granted: If the defendant is successful with her PC 995 motion to dismiss, then the charges against the defendant will be dropped. A PC 995 motion can be granted as to some criminal allegations and not granted as to other criminal allegations. This is common in sex crimes offenses such as lewd and lascivious acts against a minor (PC 288(a)), where the alleged victim is certain as to the number of times he was sexually violated according to the police report, but then at the preliminary hearing, the alleged victim changes his story or the officer indicates that the alleged victim was uncertain at the time of reporting the allegations.

Note: If the court reverses the preliminary hearing judge’s hold order, then the court “sets aside” the allegations. Thereafter, the district attorney may refile the allegation (two filing in most felonies is allowed [two felony dismissal rule]), or the district attorney can appeal the “set aside” decision. The district attorney may also elect to not prosecute any criminal allegations dismissed by the criminal defendant’s 995 motion and simply move forward with prosecution on any remaining felonies that were not dismissed pursuant to the same PC 995 motion. Also, there are some exceptions to the “two felony dismissal” rule.

Also, if the judge grants the defendant’s PC 995 motion to dismiss, and there are no pending allegations against the defendant, then the defendant is entitled to have his bail return (if any bail was staked with the court).

PC 995 Motion Denied: If the defendant’s PC 995 motion to dismiss is denied, then the defendant may appeal the court’s decision. There are strict time limitations when it comes to appealing a denied 995 motion. It is important to speak to a criminal defense lawyer at the earliest opportunity if your PC 995 motion is denied.

PC 995 Motion Process in a Nutshell

Defendant’s case advances to preliminary hearing (prelim). Keep in mind that many cases are plea bargained before preliminary hearing or are otherwise dismissed for other reasons (motion to dismiss for untimely prosecution, motion to dismiss in the interest of justice after a successful suppression motion, etc.).
The preliminary hearing judge finds there is sufficient evidence against the defendant such that the defendant should answer for allegations at the trial court level (i.e. “defendant held to answer” after prelim).
The defendant files a written PC 995 motion in the trial court to have the trial judge reconsider the preliminary hearing judge’s decision(s) [i.e. lack of probable cause or illegal commitment issues]. “Oral” PC 995 motion might be allowed, but not suggested.
If defendant loses her PC 995 motion the issue usually ends there; however, a defendant may file for a reconsideration of the trial court’s decision to deny her PC 995 motion. Strict time limitation apply to these appeals. If the defendant wins her PC 995 motion then the district attorney may also appeal, or simply move forward with prosecution on any felony that were not dismissed pursuant to the defendant’s 995 motion.

cited https://www.calcriminaldefenselawyers.com/post/pc-995-motion-request-to-dismiss-a-felony-after-preliminary-hearing

Penal Code 995 Law (Abbreviated)

PC 995(a) … the information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:
PC 995(a)(2) If it is an information:
- (A) That before the filing thereof the defendant had not been legally committed by a magistrate.
- (B) That the defendant had been committed without reasonable or probable cause.
- (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.

1. What is a Penal Code 995 motion?

A motion under California Penal Code 995 asks a trial judge to dismiss all or part of a criminal case.

It applies in cases in which:

All the charges are for felonies, or
The charges include both felony and misdemeanor charges.¹

The motion may also apply to a prosecutor’s request for sentencing enhancements and/or allegations of special circumstances.

All the charges – including enhancements and special circumstances – must be supported by facts. The preliminary hearing judge must decide if those facts are strong enough to merit a trial.

If the defense believes the preliminary hearing judge decided incorrectly, they can bring a 995 motion. This asks the trial judge to review the preliminary hearing judge’s decision.

2. When can you make a 995 motion?

When a defendant is charged with a felony there is a preliminary hearing. At this hearing, a judge determines whether there is enough evidence to send the case to trial.²

If so, the judge will “hold the defendant to answer” for the crimes. This means the case can move forward. The prosecutor will then file an “information” (complaint) with the trial court.

Once the prosecutor files the information with the trial court, the defense can make a Penal Code 995 “motion to set aside the information.” This is usually done before any other California pretrial hearings.

In essence, the motion asks the trial judge to review the preliminary judge’s decision.

What Are Some Reasons Why a Motion to Dismiss Can Be Filed?

A motion to dismiss is often filed based on procedural reasons, rather than the merits of the claim. Some reasons a party might file a motion to dismiss include:

The statute of limitations has expired.
The court does not have jurisdiction over the parties or the subject matter of the case.
The venue, or location where the lawsuit was filed, is not proper.
The complaint was not served on the defendant properly.
The plaintiff failed to name a necessary party in the complaint, or named the wrong party.

The defendant might also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. In other words, the plaintiff has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action.

3. What are the legal grounds for a 995 motion?

The purpose of the preliminary hearing is to “weed out groundless or unsupported charges.”³

Charges are considered groundless or unsupported when:

The defendant was illegally committed for trial, and/or
The defendant was committed for trial without probable cause.

If either of these applies, the trial court will grant the motion to set aside the information.

Let’s take a closer look at what these two things mean.

3.1. The defendant was illegally committed for trial

A defendant is “illegally committed” when they are denied a substantial right during the preliminary hearing. Such rights include (but are not limited to):

The right to be represented by a lawyer;⁴
The right to be advised that they can be represented by a lawyer;⁵
The right to have the preliminary hearing conducted in “one session”;⁶ and
The right to present and cross-examine witnesses at the hearing.⁷

3.2. The defendant was committed without probable cause

The Due Process Clause of the Fourteenth Amendment requires that a judge have probable cause in California to try someone for a crime.

This means that a judge can only send a case to trial if the allegations in the complaint are supported by facts.⁸

The facts do not need to prove that the defendant is guilty beyond a reasonable doubt. That determination is for the jury (or, in a bench trial, the judge).

Though the facts must be sufficient enough that a reasonable person could have “an honest and strong suspicion that the defendant is guilty” of the crime(s) charged.⁹

As Palm Springs criminal defense attorney Michael Scafiddi¹⁰explains:

“As long as there is some evidence that supports probable cause, a judge cannot grant a 995 motion.¹¹Still it is often worth bringing the motion anyway. A 995 motion is an opportunity to highlight weaknesses in the prosecution’s case at an early stage.”

3.3. Examples of specific defects

Lack of probable cause and illegal commitment can arise in a number of situations. Some of the most common include (but are not limited to):

3.3.1. Illegal evidence

Evidence of a crime may not be obtained by violating federal or California search and seizure laws. If the only evidence in the case came from an illegal search, the judge should grant the 995 motion.¹²

Example: The police pull Bill over for a broken brake light on his car. During the stop, Bill is polite and cooperative. He does not seem intoxicated. But the police tell Bill to open his trunk. Inside they find a bag of cocaine. Bill is arrested and charged with Health and Safety Code 11350, possession of a controlled substance and Health and Safety Code 11351, possession of drugs for sale.

But the police had no probable cause to suspect Bill of a crime. So ordering him to open his trunk was illegal. If there is no other evidence, the preliminary hearing judge should not set the case for trial. If they do, however, Bill’s California criminal defense attorney should be able to prevail on a 995 motion.¹³

3.3.2. Insufficient evidence

The prosecution must introduce facts to support every element of the charges, including:

All elements of each felony charge,
All elements of any misdemeanor charges,
Any basis for a sentencing enhancement, and
Grounds for a finding of special circumstances.

Example: Let’s say in the above example that Bill was acting suspicious. This gave the police probable cause to search his trunk. But the prosecutor presents no evidence of intent to sell (such as scales or separate baggies). The complaint simply contains the bare allegation that Bill intended to sell the cocaine. Since there are no facts to support the allegation, Bill’s 995 motion should be granted as to the possession for sale charge.¹⁴

3.3.3. “Fatal” findings of fact

Sometimes the preliminary judge makes a factual finding that tends to establish the defendant’s innocence.

A common example is a ruling that a key eyewitness is not credible.¹⁵For instance,

a witness may not have been able to adequately identify the defendant because of poor lighting and distance from the crime scene, or
a witness may have testified only that the defendant “looked like” the perpetrator.¹⁶

If this is the only evidence supporting a complaint, the preliminary hearing judge should not commit the charge to trial. If they do, it is an error. The trial judge should grant the 995 motion.

3.3.4. Failure to provide discovery

The Due Process Clause requires a prosecutor to disclose any and all evidence that is favorable to the defendant.¹⁷ If they willfully fail to do so, the charges should be dismissed.

Example: When the police stop Bill in the example above, Bill tells them he borrowed the car from his neighbor. During their investigation, the police speak to several other people who tell them Bill asked to borrow a car from them earlier that evening. The prosecutor does not disclose this to Bill. Since their testimony could have helped prove that Bill was telling the truth, the failure to disclose it violates Bill’s due process rights.

3.3.5. Failure to file the information within the deadline

The prosecutor has only 15 days after the preliminary hearing in which to file the “information” (trial complaint) against the defendant.¹⁸

If the prosecutor does not file the complaint within 15 days of the preliminary judge’s order, the trial judge should grant the defendant’s 995 motion to dismiss the case.¹⁹

4. What charges can a motion to set aside the information apply to?

California preliminary hearings apply to felony complaints. If there are no felony charges, there is no preliminary hearing.

A criminal complaint often combines both felony and misdemeanor counts. It may also allege facts in support of:

Sentencing / penalty enhancements (such as a California gang enhancement), or
Special circumstance allegations (such as lying in wait in a California murder case).

The defense can use a 995 motion to challenge any of these counts, enhancements or circumstances, including the misdemeanors.²⁰

5. What is the process for a Penal Code 995 motion?

The defense will typically file a 995 motion after the case is assigned to a trial judge and before any other pretrial proceedings.

The hearing on the motion does not take long – usually less than one hour. The defense attorney argues first, then the prosecutor. The defense attorney then has the opportunity to make a final argument.

The judge will usually issue a decision immediately after the arguments conclude. Though they may occasionally continue the case in order to consider the arguments further.

6. What happens if I win a 995 motion?

If the trial court grants a 995 motion, the affected charges will be dismissed. Though the prosecutor has the right to appeal the decision.

While the appeal is pending, the prosecutor can:

Proceed with a California jury trial or bench trial on the remaining counts (if any), or
Request a continuance of the trial until the appeal is resolved.²¹

Or the prosecutor can skip the appeal and simply re-file the charge(s) in a new complaint. Though California follows a “two dismissal” rule. Under this rule, charges that have been dismissed twice can generally not be prosecuted again.²²

There are some exceptions to the two-dismissal rule. Your California criminal lawyer can explain the exceptions to you if you are in this situation.

6.1. What happens to my bail if my case is dismissed?

If all the charges are dismissed after a 995 motion, the court must either:

Refund the defendant’s California bail within 15 days,²³ or
If the prosecutor refiles the charges, apply the bail to the new offense(s).²⁴

7. What happens if I lose a 995 motion?

If the judge denies a 995 motion, the defendant has the right to appeal the decision. The time in which the appeal must be filed depends on the original grounds cited in the motion.

If the grounds were an illegal commitment, the defendant has until 60 days from the date of their California arraignment to file an appeal.²⁵

If the grounds were commitment without probable cause, the appeal must be filed within 15 days of the judge’s denial of the 995 motion.²⁶

If the defendant does not appeal or loses the appeal, the case will proceed toward trial.

Legal references:

People v. Thiecke (1985) 167 Cal.App.3d 1015.
California Penal Code 872 PC.
People v. Superior Court (Mendella) 33 Cal.3d 754 (quoting People v. Brice (1982) 130 Cal.App.3d 201).
People v. Napthaly (1895) 105 Cal. 641.
People v. Miller (1932) 123 Cal.App. 499.
People v. Bucher (1959) 175 Cal.App.2d 343.
Jennings v. Superior Court of Contra Costa County (1967) 66 Cal.2d 867.
People v. Chapple (2006) 138 Cal.App.4th 540.
People v. Ingle (1960) 53 Cal.3d 407; see also Malleck v. Superior Court (1956) 142 Cal.App.2d 396.
Palm Springs criminal defense attorney Michael Scafiddi uses his insider knowledge as a former police officer to represent clients throughout the Inland Empire, in San Bernardino and Riverside County courthouses, including the Murrieta Southwest Justice Center, Banning, Fontana, Joshua Tree, Barstow and Victorville.
See Garabedian v Superior Court (1963) 59 C2d 124; Barber v Superior Court (1991) 1 CA4th 793.
People v Lilienthal (1978) 22 C3d 891; People v Scoma (1969) 71 C2d 332; People v Sherwin (2000) 82 CA4th 1404.
In re Justin B. (1999) 69 CA4th 879.
People v Upton (1968) 257 CA2d 677).
People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551.
Vukman v Superior Court (1981) 116 CA3d 341, disapproved on other grounds in People v Cuevas (1995) 12 C4th 252.
Brady v. Maryland (1963) 373 U.S. 83. See also Izazaga v. Superior Court (1991) 54 Cal.3d 356.
California Penal Code 1382 PC.
People v. Ganger (1950) 97 Cal.App.2d 11.
See, for example, People v Thiecke (1985) 167 CA3d 1015 (misdemeanors); Huynh v Superior Court (1996) 45 CA4th 891 (penalty enhancement allegations); People v Ghent (1987) 43 C3d 739 (special circumstance allegations).
People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190. See also California Rules of Court 8.112 and 8.116.
California Penal Code 1387 PC.
California Penal Code 977 PC.
California Penal Code 1303 PC.
California Penal Code 1510 PC.
California Penal Code 999a PC.

cited https://www.shouselaw.com/ca/defense/penal-code/995-motion/

In California state criminal procedure, a motion to dismiss pursuant to Penal Code Section 995 gives the defendant the option of moving a trial court to dismiss their criminal case following a preliminary hearing at which the defendant was held to answer on one or more criminal charges.

In simple terms, a PC 995 motion to dismiss is a legal motion asking for the dismissal of a criminal case. It’s filed after a preliminary hearing in a felony case.

Under Penal Code 995, if the judge at the preliminary hearing incorrectly allowed the case to proceed, then a defendant’s criminal defense lawyer could file a PC 995 motion. This motion is asking the trial judge to partially or entirely dismiss the criminal complaint. In other words, the defense makes the motion after the preliminary hearing, but before a trial.

A 995 motion is an appeal of the preliminary hearing judge’s decision to set the case for trial and often called a “motion to set aside the information.” Typically, a judge will grant the motion if they find there were insufficient legal grounds to hold the defendant over for trial.

A 995 motion can’t be used to respond to a criminal complaint of only misdemeanor charges, but could be used if the charges include both felony and misdemeanor charges. This is because without a felony charge, there will be no preliminary hearing. Filing motions, such as a PC 995, is a crucial component in the criminal case process in California.

There are many situations where it’s appropriate to file a Penal Code 995 motion. However, the most common are a lack of probable cause and illegal commitment.

To give readers important information about a 995 motion to dismiss, our California criminal defense attorneys are providing an overview below.

PRELIMINARY HEARING AND PROBABLE CAUSE

At a preliminary hearing, the court hears evidence, usually from one or more police officers, regarding the basis for the defendant’s arrest. The preliminary hearing has many features of a jury trial, but also has important differences.

Most obviously, the preliminary hearing is held by a judge with no jury present. The judge is the finder of fact and resolves all credibility issues between witnesses. Second, and perhaps most importantly, the burden of proof, while still on the government, is much lower than at a jury trial.

We are all familiar with the “beyond a reasonable doubt” standard, the highest in the law, which applies at a criminal jury trial. At a preliminary hearing, conversely, the standard is only probable cause.

The preliminary hearing probable cause standard is stated in different ways by various appellate courts through time, but essentially it requires the government to put forth sufficient evidence that a reasonable person would find that the person being charges likely committed the crime.

This is a standard somewhere below 50%, which is known as a preponderance. For that reason, a preliminary hearing court can find that it is more likely than not that the defendant is not guilty, but still hold them to answer for the charge following preliminary hearing where the evidence raises a reasonable inference of guilt.

DEFENDANT COMMITTED WITHOUT PROBABLE CAUSE

The Fourteenth Amendment requires a judge have probable cause in California to try somebody for a crime. In other words, they can only send the case to trial if the allegations are not supported by facts. Again, the facts don’t have to prove defendant’s guilty beyond a reasonable doubt, but they have to be sufficient enough that a reasonable person would have a strong suspicion they are guilty of the crime charged.

A motion under Penal Code Section 995 therefore has to allege that the court could not have found a reasonable inference of guilt based on the evidence presented by the prosecution. While the burden of proof is low, it is still on the government.

Where the government’s case derives solely from information which requires speculation, conjecture, or guess-work in order to infer the defendant’s guilt, a dismissal pursuant to Penal Code Section 995 is proper. The trial court must also appraise the case in light of the whole record, not just isolated bits of evidence selected by the prosecution.

PROCESS FOR A PENAL CODE 995 MOTION

Procedurally, a Penal Code Section 995 motion is almost always brought before a trial court with a judge other than the one who presided over the preliminary hearing. Though this is not legally required, this procedure is preferable over having the same judge hear a Penal Code Section 995 motion as the one who heard the preliminary hearing.

This allows the Section 995 process to function as a check on the preliminary hearing court, with a set of fresh eyes re-evaluating the case to check for obvious errors.

It should be noted, however, that the trial court which hears the Penal Code Section 995 motion to dismiss is not reviewing the record at the preliminary hearing as if it had itself heard the preliminary hearing. All reasonable inferences in favor of the preliminary hearing judge’s determination will be afforded by the trial court.

There are relatively infrequent, though certainly not unheard of, instances however where the trial court will determine that the evidence presented at the preliminary hearing was truly insufficient and the judge erred in holding the defendant to answer.

This determination will take the form of setting aside the Information – the charging document filed post-preliminary hearing against the defendant – and dismissing the case completely.

PC 995 OPPORTUNITY TO DISMISS CRIMINAL CHARGES

Through the Penal Code Section 995 vehicle, therefore, defendants have an opportunity to have their cases dismissed completely by a judge without having to risk a jury trial. This is unique in California criminal procedure – leaving aside the limited circumstances which give rise to a demurrer – as there is no true analogue to a motion to dismiss as exists in civil procedure.

If the trial court grants a 995 motion, the charges will be dismissed. However, the prosecutor can appeal the decision. While their appeal is pending, the prosecutor could proceed with a trial on any remaining charges, or request a continuance of the trial until appeal is resolved. They also have the option to just re-file the charge in a new complaint.

If all charges are dismissed after a 995 motion, the court has to either refund defendant’s bail within 15 days, or apply the bail to the new charges if the prosecutor refiles charges.

CONTACT OUR CRIMINAL ATTORNEYS FOR HELP

If you or a family member has been charged with a felony and has had a preliminary hearing at which the defendant was held to answer and the case bound over to the trial court, you should consult an experienced Los Angeles criminal defense lawyer about the viability of the Penal Code Section 995 motion to dismiss.

Even if such a motion is ultimately denied, the filing of an effective Section 995 motion puts the court and the prosecution on notice of the important issues in the case and, if nothing else, can often inspire a more favorable settlement in the matter. Effective litigation at the Penal Code Section 995 phase of a felony prosecution is a crucial part of achieving a favorable result in a California felony criminal case.

Eisner Gorin LLP is a nationally recognized criminal defense law firm with a team of highly experienced lawyers. We are located at 1875 Century Park E #705, Los Angeles, CA 90067. We also have an office right next to the Van Nuys Courthouse located at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for a consultation at (310) 328- 3776.

CITED https://www.egattorneys.com/criminal-case-process-california/995-motion-to-dismiss

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