Can I Admit Acts of Misconduct of a Witness in My Defense at Trial?

A commonly asked question in many criminal trials is whether the defendant can introduce acts of misconduct against a prosecutorial witness.  Specific acts of misconduct do not run afoul of the Evidence Code .  Nor do complaints of specific acts need to amount to habit or custom.  California Constitution Article I Section 28(d) did away with Evidence Code Section 785, 786, 787.  The criminal law now allows a party to impeach the credibility of a witness by the use of specific acts of misconduct.  It is these acts that are being sought.  Whether they be racial prejudice, false reports, dishonesty, or other bad acts.  Force or other acts done under “color of authority” or done while in a position of trust would meet the new standard for admissibility.  As they are now “relevant”, and therefore discoverable.  From a review of these cases it is apparent that acts demonstrating moral laxity and not necessarily convictions is now the focus for witness impeachment.  The breadth of discovery should include all reports and documents which would provide information regarding any acts by a witness that relate to the witness telling the truth.  In more recent criminal cases, says a local Hermosa Beach Criminal Defense Lawyer , the courts have held that pursuant to Penal Code Section 1054.5(b) the prosecution had a constitutional duty to disclose all evidence bearing on the credibility of prosecution witnesses.  There the court observed: “the prosecution has a duty to disclose all substantial material evidence favorable to an accused, including evidence bearing on the credibility of a prosecution witness” the Courts have said.

   In Hammerly v. Superior Court (1979) 89 C.A. 3d 388, the Court explained: “The state may not abridge a defendant’s constitutional right to a fair trial by “denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesseswho have not been rigorously cross-examined and as thoroughly impeached as the evidence permits.” People v. Riser(1956) 47 Cal.2d 566,586 quoted with approval Hill v. Superior (1974) 10 Cal.3d 812, Hammerly v. Superior Court, Id at 401-402. The holding in Hammerly is particularly enlightening. In that case the trial court issued a subpoena duces tecum ordering a newsman to appear as a witness and bring all material pertaining to interviews with a named individual who had implicated the defendant.  The individual was the prosecution’s primary witness.  The newspaper reporter objected to discovery based upon Evidence Code Section 1070.  The court ordered an in camera review.  The newsman failed to comply and was held in contempt. On petition for review, the Court of Appeal affirmed the contempt judgment.  It held that the information contained in the tapes, notes, and transcripts were within the scope of the privilege.  However, the court held the privilege must yield to a defendant’s demonstrated need for the subpoenaed materials to insure their right to a fair trial. The judiciary has a sole obligation to insure that the constitutional right of an accused to a fair trial is realized.  If that right would be thwarted by enforcement of a statute, the statute,… must yield.  This principle is particularly applicable where, as here, enforcement of
the statute would not further it’s objectives.” Hammerly, Id.  at 402 the Hammerly court in closing had this to add.  “The constitutional right of defendants which we here recognize is the right to a fair trial free of state-imposed impediments to it’s fair conduct.” Hammerly, Id at 403

About thetorranceattorney

Matthew Ruff is a Torrance criminal defense attorney located near the 405 freeway on Crenshaw Blvd. Focusing on DUI and serious criminal cases for over twenty five years. In addition to criminal cases, Matthew also defends clients at the DMV regarding license suspension hearings stemming from drunk driving arrests.
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