High Court Says Defense Must Disclose Evidence Before Trial


In a major victory for prosecutors, the state Supreme Court on Friday upheld a key portion of the sweeping 1990 anti-crime initiative requiring the defense to join the prosecution in disclosing its evidence before trial.

The 5-2 ruling overturned a 20-year court doctrine holding that while the prosecution must reveal its case before trial, the constitutional privilege against self-incrimination protects the defense from being forced to reciprocate with pretrial evidence of its own.

“We conclude that, properly construed and applied, the (disclosure) provisions of Proposition 115 are valid . . . and that the (measure) effectively reopened the two-way street of reciprocal discovery in criminal cases in California,” Chief Justice Malcolm M. Lucas wrote for the court majority.


The initiative, adopted by a 57% voter majority in the June, 1990, primary election, imposed on the criminal justice system a wide-ranging series of reforms long sought by prosecutors in California.

Under the provision approved in Friday’s ruling, the defense is required to provide the names and statements of all witnesses it intends to call at trial, other than the defendant, and disclose any physical evidence, expert reports or scientific tests it intends to present.

Prosecutors have long complained that by the time the defense evidence is presented at trial they are often unable to fully investigate that evidence to test its validity.

Friday’s ruling effectively overturns a 1970 state high court decision that protected the disclosure of defense evidence until trial.

“This is a fundamental decision,” said state Deputy Atty. Gen. David D. Salmon. “Justice should never be the product of subterfuge or gamesmanship. For 20 years, the prosecution has had to try cases in the dark, subject to the risk of a surprise.”

Salmon added: “We’ll never know how many criminals avoided justice or received a lesser verdict because we could not check out a surprise alibi or witness. Now we have full, reciprocal exchange of information--with the exception of the defendant himself.”

The decision was described as an “outrage” by Los Angeles County Deputy Public Defender Albert J. Menaster, representing the defense group California Attorneys for Criminal Justice.

“For 20 years, the rule in California has been that the prosecution can’t have the defense help convict the defendant of a crime--but now it can,” he said.

Menaster said the ruling’s requirement to disclose all statements by witnesses except the defendant goes far beyond the standards set by the U.S. Supreme Court and other federal courts. He said Friday’s decision would be challenged in federal court as a violation of the U.S. Constitution. “This is not the end,” he said.

Friday’s action marked the third key ruling the state high court has made on the 1990 initiative. Last December, the justices invalidated a far-reaching provision that would have required California state courts to follow federal rulings in determining defendants’ rights. In that decision, the court also rejected a claim that Proposition 115 violated constitutional prohibitions against voter initiatives containing more than a “single subject.”

Then last April, in a decision affecting hundreds of pending cases, the high court ruled that provisions of the initiative intended to speed the progress of criminal trials could be applied to crimes committed before Proposition 115 took effect.

Friday’s ruling came in the case of Javier Valle Izazaga, currently facing rape charges in Tulare County. Before trial, prosecutors sought to obtain defense evidence under provisions of Proposition 115. Defense lawyers refused, and after rulings by a trial court and state appellate panel ordering the disclosure, the issue was taken for review by the state high court.

Lucas was joined in his 40-page majority opinion by Justices Edward A. Panelli, Armand Arabian and Marvin R. Baxter. Justice Joyce L. Kennard concurred with the decision but wrote a separate opinion.

The majority rejected defense contentions that the initiative, by forcing the disclosure of key defense evidence, violates the state and federal constitutional privileges against self-incrimination.

“Discovery of the names and addresses of the witnesses that the defense intends to call at trial . . . merely forces the defendant to divulge at an earlier date information that the defendant from the beginning planned to divulge at trial,” Lucas said.

The majority also turned down the claim by Izazaga’s attorneys that forced disclosure would have a “chilling” effect on the preparation of the defense, effectively penalizing a defense lawyer who zealously pursues potential witnesses and evidence that he or she must ultimately turn over to the prosecution.

Lucas said it was “logical to assume” that only witnesses helpful to the defense would appear on the defendant’s witness list and thus be disclosed to the prosecution. The name of a damaging witness the defense does not intend to call need not be disclosed, the chief justice pointed out.

Justices Stanley Mosk and Allen E. Broussard issued lengthy dissents, saying the disclosure requirements violated constitutional guarantees against self-incrimination and the right to effective counsel.

Broussard said the initiative mandated “much broader” disclosure than approved by the U.S. Supreme Court. While the high court has approved the compelled pretrial disclosure of alibi witnesses, the provisions of Proposition 115 require the revelation of the identity of any witness “who may testify to any aspect of the defense case, without regard to the potentially incriminating nature of the information the witness may possess,” Broussard said.