A View from the Bottom – Discovery

By Victor VeVea (c)2019

Prosecution Discovery Obligation

The prosecution’s discovery obligation is codified in Penal Code §1054.1:

The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

  • The names and addresses of persons the prosecutor intends to call as witnesses at trial.
  • Statements of all defendants.
  • All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
  • The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.
  • Any exculpatory evidence.
  • Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.

The duty to provide discovery is not limited to evidence in the hands of the prosecuting attorney rather, the prosecution has a duty to learn of and obtain all favorable evidence in the possession of all members of the prosecution team (Kyles v. Whitley (1995) 514 U.S. 419; United States v. Wood (9th Cir. 1995) 57 3rd 733, 737; People v. Kasim (1997) 56 Cal. App. 4th 1360).



One of the purposes of the discovery scheme is “To promote the ascertainment of truth in trials by requiring timely pretrial discovery.” (Penal Code §1054(a)). A trial is a search for the truth, and the discovery rules are designed to ensure that the search is fair (People v. Bell (2004) 118 Cal. App. 4th 249; People v. Superior Court (2000) 78 Cal. App. 4th 403). Discovery statutes are meant to “promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial.” (People v. Jackson (1993) 15 Cal. App. 4th 1197). “It is axiomatic that a trial is a search for the truth. The rationale of the discovery statute is to prevent “trial by ambush.”” (People v. Cabral (2004) 121 Cal. App. 4th 748 (citations omitted)).


Seized Electronic Data

The expanded use of electronics has resulted in the creation of vast amounts of data. A computer may hold a terabyte or more of data, which is about the same amount of data that could be stored by 1,500 CDs. A single page of plain text is about four kilobytes, so a one terabyte drive could hold more than 250 million pages of text. The data extracted from a typical cell phone, even if barely used, can easily contain ten gigabytes of data in 25,000 or more files. A Facebook account may contain more than ten thousand pages of PDF files if the user is active on the social media provider. However, data is not necessarily evidence.

Law enforcement often seizes copious amounts of electronic data that is wholly irrelevant to the case. At first glance, the seizure of electronic data appears to trigger the prosecution’s obligation to produce the evidence in discovery as part of “All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” However, in other contexts, many items are seized by law enforcement and then released without being first produced to the defense.

Law enforcement seizes an entire house when conducting a search, but after obtaining items believed to be relevant evidence, the house is released to the occupants. Cars are also seized during the initial stages of an investigation, but these too are often released to the owners without further action. During a typical shoplifting case, the items allegedly taken will be seized, documented, and then returned to the merchant.

It could be argued that the short-term seizure of real evidence does not trigger the obligation to produce the evidence under Penal Code §1054.1(c), but it does trigger the obligation to produce the evidence if it is exculpatory under Penal Code §1054.1(e). A reasonable interpretation of Penal Code §1054.1 related to seized evidence is that the prosecution must produce such evidence if the evidence is retained and relevant or the evidence is exculpatory.

Unreasonable Interpretation

Unreasonable interpretations of the prosecution’s discovery obligation under Penal Code §1054.1 can be demonstrated with absurd examples.

The prosecution must disclose “(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.” Can this obligation be fulfilled by producing a local telephone directory containing the known witnesses along with thousands of other people?

The prosecution must disclose “(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” When investigating the robbery of a store, law enforcement seizes the video recording system that contains video recordings from the past six months. Should the prosecution produce all recordings, or just recordings at and near the time of the charged offense?

During an investigation, law enforcement electronically recorded many hours of video surveillance, collected hundreds of hours of wiretap recordings, took thousands of digital photographs, and seized thousands of pages from Facebook, but nothing relevant was found in any of the electronic evidence except for a few of the wiretap calls. Should the prosecution produce everything seized, produce just the few relevant wiretaps, produce just what they intend to offer into evidence, or take some other action regarding the electronic evidence?

This last question was recently decided in a Tulare County case in which the prosecution produced more than 100 gigabytes of electronic data. The production of such a massive amount of data resulted in the defense team spending hundreds upon hundreds of hours listening to wiretaps, watching videos, and reading reports that are neither relevant nor admissible.

The overproduction of evidence has become an epidemic in Tulare County, but the infection has spread to Kern County where it has become almost routine to produce voluminous Facebook and cell phone records. It is also common for prosecutors to produce an entire gang database in gang cases instead of only producing records concerning the defendant and records concerning the predicates that will be used at trial.

In a recent case where the defendant is alleged to be an “East Side Crip,” the prosecution produced predicates for the gang alleged, but also produced predicates for Country Boy Crips, Westside Crips, Bloods, Southside Bakers, Colonia Bakers, Varrio Bakers, Westside Bakers, Okie Bakers, Loma Bakers, and East Side Bakers. In total, more than 1,300 police reports were produced, but many reports were about defendants whose alleged crimes are too old to qualify as predicates. Reports unrelated to the gang alleged and reports about alleged gang members whose alleged crimes are too remote to be used as predicates are irrelevant, and production of these many irrelevant reports hides the relevant reports.

Prosecution production of mass quantities of irrelevant electronic data appears to be an unreasonable interpretation of its discovery obligation.

Reasonable Interpretation

A keyword in Penal Code §1054.1(c) is “relevant.” The prosecution must produce “All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” This should not be interpreted to give them leave to hide a grain of relevant evidence in a mountain of irrelevant evidence.

When a statute is susceptible to more than one construction, a court must give it an interpretation that will avoid confusion and absurdity and must adopt an interpretation that is consistent with sound reason (Cilibrasi v. Reiter (1951) 103 Cal. App. 2nd 397). A statute should not be construed in such a manner as to result in a palpable absurdity (Kauke v. Lindsay Unified School Dist. (1941) 46 Cal. App. 2nd 176). Where the meaning of a statute is doubtful, any construction which would lead to absurd results should be rejected (Aggeler v. Dominguez (1933) 217 Cal. 429).

Interpreting Penal Code §1054.1 to allow for the production of mass quantities of irrelevant evidence along with the relevant evidence is an interpretation that leads to confusion and absurd results, such as those described above.

In the civil context, Code of Civil Procedure §2023.010 explains that “Misuses of the discovery process include, but are not limited to… (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”

While not binding in criminal prosecutions, the idea that the discovery process should not create “undue burden and expense” is consistent with the concept that a trial is a search for the truth and should be fair (People v. Bell (2004) 118 Cal. App. 4th 249). The overproduction of irrelevant evidence creates an “undue burden and expense” that is borne by the county for indigent defendants, and is neither consistent with the search for the truth not fundamental fairness.

A reasonable interpretation of the prosecution’s discovery obligation would be for the prosecution to notify the defense of seized evidence, but only produce relevant portions in discovery unless specifically requested. Notification should be simple memos, such as:

“The police seized defendant’s Facebook records, but only found one photograph (enclosed) to be relevant. No other records will be offered into evidence. Please, advise if you would like the entirety of the Facebook records.”

“Law enforcement recorded 200 hours of wiretaps concerning phones used by codefendants, but there is no mention of defendant or any criminal activity by defendant. None of the wiretaps will be offered into evidence. Please, advise if you would like copies of the wiretaps.”

“Law enforcement recorded 60 hours of video surveillance. Defendant is not seen in any of the recordings, and none of the recordings will be offered into evidence. Please, advise if you would like full copies of the recordings.”

“The county’s entire gang database is available to the defense upon request. The prosecution only intends to offer the three predicates included on the enclosed CD.”

Requiring the prosecution to describe, but not produce irrelevant evidence, would result in significant savings to the county on indigent defense cases because it would reduce the amount of evidence the defense must review. Such a procedure would allow the defense access to the evidence if the defense believes that the evidence does have some relevance, but it would limit the required defense review of the evidence because the prosecution has already indicated which portions of the evidence it intends to use during trial.

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