SAN DIEGO CRIMINAL DEFENSE: OK FOR PROSECUTORS TO COMMENT ON DEFENSE FAILURE TO RETEST EVIDENCE
Here is yet another spectacularly awful case from the California Supreme Court relating to defense experts. In Zamudio (43 Cal.4th 327), the California Supreme Court said that the DA could present evidence that an item had been provided to the defense laboratory.
In this case, the DA repeatedly asked witnesses whether the sheriff's DNA lab could have been ordered to release samples to the defense for testing. Notably, the trial judge actually sustained defense objections, noting that this raised questions about the credibility and competency of defense counsel, a point the Supremes ignore.
The Supremes say these questions weren't a violation of work product, since no "writing" from the defense was involved. They brush aside claims of attorney-client privilege (no communication from a client), Griffin (380 U.S. 609) error (OK to comment on the failure of the defense to introduce material evidence), and that the questions shifted the burden of proof to the defense.
This is really, really bad and we're going to have to develop strategies to deal with it. Of curse, we must all demand that the court pay for the retesting of evidence from the prosecution. But we need more...much more.
People v. Bennett; 2009 DJ DAR 1429; DJ, 1/30/09; Cal. Supremes
