Posted On: March 29, 2013 by Mary Frances Prevost

San Diego Criminal Lawyer Blog: Brady Discovery Applies Prior to Prelim

In this case, the prosecutor failed to give photographs to the public defender to the preliminary examination. The public defender contended, after he found out about the withholding of evidence, that the pictures were exculpatory and that the failure to disclose them violated Brady (373 U.S. 83).

The California Court of Appeal agrees that Brady applies pre-prelim! "We conclude that a defendant has a due process right under the California Constitution and the United States
Constitution to disclosure prior to the preliminary hearing of evidence that is both favorable and material, in that its disclosure creates a reasonable probability of a different outcome at the preliminary hearing. This right is independent of, and thus not impaired or affected by the criminal discovery statutes."

They do note that Brady operates differently at a prelim: "Accordingly, the standard of materiality is whether there is a reasonable probability that disclosure of the exculpatory or impeaching evidence would have altered the magistrate's probable cause determination with respect to any charge or allegation." This case resolves an issue left unclear in the recently
decided Gutierrez (2013 WL 940786; 2013 Cal.App. LEXIS 192; 2013 DJ DAR
3157; DJ, 3/14/13) case, which described the defense right to Brady "at" the
preliminary hearing.

This California Court of Appeal is quite specific in declaiming our right to discovery "prior to the preliminary hearing." Los Angeles County Public Defender Albert Camacho
was appellate counsel on this big win.

Bridgeforth v. Superior Court; 2013 DJ DAR 3947; DJ, 3/26/13; C/A
2nd, Div. 1

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