GGPDE_2020-28_Rough_Notes_2115055

JACKIE LACEY DISTRICT ATTORNEY LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE ONEMINUTE BRIEF COPYRIGHT © 2020 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE. ALL RIGHTS RESERVED. MAY BE REPRODUCED FOR NON -COMMERCIA L PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY . 1MB@da.lacounty.gov NUMBER : 2020-28 DATE : 08-27-20 BY: Devallis Rutledge TOPIC : Rough Notes of Interview s ISSUE : When are law enforcement officer s req uired to retain their rough notes of victim s’ and other witness es’ statements for disclosure to the defense , even though the information is included in reports ? The prosecution ’s obligation to disclose certain evidence to the defense arises from both the Fourteenth Amend ment due pro cess clause, Brady v. Maryland (1963) 373 US 83 (exculpatory evidence), Giglio v. US (1972) 405 US 150 (impeachment evidence), and PC § 1054.1 (listing 6 catego ries of materials and information to be disclosed , if they are in the actual or cons tructive pos session of the prosecuting a ttorney ). The duty to preserve evidence having an apparent e xculpatory value —so that it can be disclosed to the defense —arises from the Four teenth Amendment due process clause. California v. Tr ombetta (1984) 467 US 479; Arizona v. Youngblood (1988) 488 US 51 . See 1MB 2015 -13. ● It’s a common pract ice for law enforcement officers investigating crimes to make rough notes of victims’ and other witnesses ’ statements , to assist in writing formal reports later. It’s also a common practice to destroy th ose notes after the reports are finalized. Does this destruction violate due process? “[A]lmost everything is evidence of something, but that does not mean that nothing can ever safely be destroyed. If the agents' notes … [1] were made only for the purpose of transferring the data [into formal reports] and if, after having served that purpose, [2] they were destroyed by the agents in good faith and [3] in accord with their normal practice , it would be clear that their destruction did not constitute an impermissible destruction of evidenc e nor deprive petit ioner of any right. ” Killian v. US (1961) 368 US 231, 242. This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for s ubsequent developments, and consult legal advisors to ensure currency after publication. Local policies and procedures r egarding application should be observed. LADA ONE -MINUTE BRIEF NO. 20 20-28 PAGE 2 The Killian rule was adopted in California because of the “Truth-in-Evidence ” clause. Cal. Const., Article 1, § 28(f)(2). “As we read Killian and Trombetta, they conclude that t here is no deprivat ion of a federal due process right if destruction of the original notes comp lies with the tripartite test of Killian. ” People v. Angeles (1985) 172 Cal.App.3d 1203, 1214. ● But state discovery statutes operate “in tandem with ” the due process rules , and sometimes require more . People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720. For example, PC § 1054.1(f) requires the prosecuti ng attorney to disclos e “relevant written or recorded stat ements of witnesses ” intended to be called at trial. (PC § 1054.3(a) requires reciprocal defense disclosure to the prosecutio n of the same category of evidence. ) “[R]aw written notes of witness interviews , other than attorney work pr oduct, are ‘statem ents’ as defined in sections 1054.3 , subdivision (a), and 1054.1, subdivision (f), and thu s must be disclosed by both sides. ” Thomp son v. Superior Court (1997) 53 Cal.App.4th 480, 485. Although “Nothing in the statutes ex pressly requires the preservation of interview notes before a criminal complaint has been filed ,” People v. Coles (2005) 134 Cal.App.4th 1049, 1055 , once the prosecu tor files a complaint, statutory disclosure i s required of materials known to be “in the possession of inve stigating agencies .” PC § 1054. ● The prosecutor can meet both the statutory and due process disclosure obligations only if law enforcement officers furnish all of the materials subject to disclosure under Brady, Giglio and PC § 1054.1 when requesting that a co mplaint be filed . If standa rd practice is to destroy rough notes of victim s’ and other witness es’ statements after transferring the information into official reports , the notes should nevertheless be retained if they still exist when