BBM. Not exactly.
The relevant code section is CA PEN CODE section 1054.1 (f). Any reports issued by an expert must be given prior to trial. Names of witnesses must also be exchanged.
But this is not civil procedure. It's different.
Here are a couple cases that illustrate the law as to experts. They're not exactly on point but help to show how this works and the appeals process surrounding expert info disclosure or the lack thereof:
People v. Tran (2002). Issue was that a gang expert testified without a 30 day disclosure that he would be testifying as a gang expert. No resume was disclose nor other info to indicate this witness was an expert or the nature of his proposed testimony. The expert testimony was allowed and the defendant appealed after conviction. His conviction was upheld and judgment affirmed.
"Tran and Maa Le contend that the trial court erred in allowing Detective Chris Le to offer expert testimony because the prosecutor did not comply with the reciprocal discovery statutes. The prosecutor listed Detective Chris Le as one of the People's “potential witnesses,” but did not either specify that he would be called to give expert testimony or provide his resume to defense counsel. It was not until a hearing held at the trial's commencement that the prosecutor stated her intent to call Detective Chris Le as an Asian gang expert, although the prosecutor had listed him as a witness at least 30 days before trial. Defense counsel for Tran objected on the ground that Penal Code section 1054 et seq. required pretrial disclosure that Detective Chris Le would testify as a gang expert.
Proposition 115 (Pen.Code, §§ 1054–1054.7), which provision the electorate passed in June 1990, provides for reciprocal discovery in criminal cases. (See Wardius v. Oregon (1973) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 [requiring criminal discovery to be reciprocal].) Penal Code section 1054.1 requires prosecutors to disclose specified categories of information “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” Subdivision (f) of section 1054.1 of the Penal Code requires prosecutors to disclose “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.”2 Penal Code section 1054.3 sets forth the defense disclosure requirements. Disclosures must be made at least 30 days prior to trial, unless good cause is shown why a disclosure should be denied, restricted or deferred. (Pen.Code, § 1054.7.)
The criminal discovery statutes have been construed to require a party to disclose “ ‘all witnesses it reasonably anticipates it is likely to call....’ “ (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11, 285 Cal.Rptr. 231, 815 P.2d 304.) Penal Code sections 1054.1 and 1054.3 “reasonably should be interpreted to require both the prosecution and the defense to disclose the names and addresses of persons whom they intend to call as witnesses at trial, if such information is known or is reasonably accessible.” (In re Littlefield (1993) 5 Cal.4th 122, 135–136, 19 Cal.Rptr.2d 248, 851 P.2d 42.) These disclosures give defense counsel the opportunity to interview witnesses. (Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1332–1333, 64 Cal.Rptr.2d 714.) To establish that the prosecutor failed to disclose a witness in violation of Penal Code section 1054.1, subdivision (a), “the record must affirmatively demonstrate that a specific witness or witnesses were known to and intended to be called by the prosecutor, but were undisclosed to the defense as required by the discovery chapter.” (People v. Tillis (1998) 18 Cal.4th 284, 292, 75 Cal.Rptr.2d 447, 956 P.2d 409.)
*5 In criminal proceedings, all court-ordered discovery is governed by (and is precluded except as provided by) Penal Code section 1054 et seq. (In re Littlefield, supra, 5 Cal.4th at p. 129, 19 Cal.Rptr.2d 248, 851 P.2d 42 [a primary purpose of the section is to facilitate the ascertainment of facts, and the opportunity to interview witnesses is integral to that purpose].) Courts may not broaden the scope of the discovery permitted by these provisions. (People v. Tillis, supra, 18 Cal.4th at p. 294, 75 Cal.Rptr.2d 447, 956 P.2d 409.)
The issue here is whether, by virtue of subdivision (f) of section 1054.1 of the Penal Code, the prosecutor should have either turned over Detective Chris Le's resume, thereby alerting the defense that Chris Le would offer expert testimony, or provided additional information about the proposed expert testimony. The statute only refers to reports or statements “made in connection with the case.” An existing written resume is generally not something prepared for the specific case. Here, there is no indication that the resume was “made in connection with the case.” Indeed, there was evidence that this resume had been in existence, for it was used “for warrant” and “subpoena purposes.”
Proposition 115 does not contain the extensive pretrial discovery of expert testimony contained in Code of Civil Procedure for civil cases (see generally Code Civ. Proc., §§ 2019, 2034). Instead, Proposition 115 does not require discovery for expert testimony that is not reduced to a report, for there is no provision for the pretrial identification of witnesses as experts without there being a written report. Here, the prosecutor did disclose in a timely fashion that Detective Chris Le might testify at trial. Penal Code section 1054.1 did not on its face require the prosecutor to inform the defense of the nature of a disclosed witness's testimony or in what capacity he would testify, for example, as a gang expert.
Although Proposition 115 has been interpreted as prohibiting counsel from failing to learn or acquire information to avoid disclosure (In re Littlefield, supra, 5 Cal.4th at p. 133, 19 Cal.Rptr.2d 248, 851 P.2d 42), that is not the situation here. The defense did have the opportunity to interview the witnesses whom the prosecutor identified and inquire about their testimony. (See Reid v. Superior Court, supra, 55 Cal.App.4th at pp. 1332–1333, 64 Cal.Rptr.2d 714.) Moreover, the defense was aware as of the preliminary hearing that there would be opinion evidence about gangs. Accordingly, there was no violation of the discovery requirements of Penal Code section 1054.1.
Even if Penal Code section 1054.1 is interpreted to require prosecutors to identify specifically witnesses from whom they will solicit experttestimony, preclusion of Detective Chris Le's testimony would not have been the proper sanction in this case. Preclusion of a witness's testimony not disclosed before trial is the ultimate sanction and is justified only where the nondisclosure was willful and for the purpose of gaining a tactical advantage and because lesser sanctions, such as a continuance, fines or jury instructions, would be inadequate. (Pen.Code, § 1054.5, subds.(b), (c); see also People v. Gonzales (1994) 22 Cal.App.4th 1744, 1753–1759, 28 Cal.Rptr.2d 325.) There is no showing either that the prosecutor willfully failed to disclose the substance of Detective Chris Le's testimony or that the trial court's “lesser sanctions” (for example, Evidence Code section 352 and 402 hearings and limiting gang jury instructions) were inadequate. The prosecutor introduced expert gang testimony during the preliminary hearing and gave indications that Detective Chris Le, who was identified as a gang expert, might be called as a trial witness.
2Permitting Detective Chris Le to offer expert testimony also did not deny due process to defendants. There was no impropriety in having Detective Mike Young offer expert testimony at the preliminary hearing and Detective Chris Le testify as the expert at trial.
People v. Brown (2002). Issues was that the state disclosed an expert witness a day before trial. So not 30 days before as mandated. The court allowed the testimony. Defendant appealed stating the testimony should not have been allowed, as a sanction against the state. The appellate court affirmed and upheld the judgment.
I. The Trial Court's Failure to Impose Exclusion of Evidence as a Sanction for Late Disclosure of an Expert Witness.
*2 Appellant complains of late disclosure by the prosecution of the identity of the expert witness. On the Friday before the scheduled date of commencement of trial on Monday, the prosecution notified counsel for appellant of an “additional witness,” Officer Whitney, who was expected to testify “as an expert in what constitutes possession for sales.” Appellant objected to any testimony by Officer Whitney on the ground that respondent failed to timely comply with the discovery requirements Penal Code section 1054.1 Defense counsel protested that she had neither been provided with Officer Whitney's name as an anticipated witness, nor had any information—by way of a police report in the case, his testimony at the preliminary hearing, or records of his “prior testimony” in other proceedings—to prepare for cross-examination. The defense declined to waive time or request a lengthy continuance of trial, but suggested as a discovery sanction the exclusion of Officer Whitney's testimony.
The court refused to exclude the evidence, but offered to trail the matter “a couple of days” to afford counsel an opportunity to “find a transcript” of the officer's testimony in another case. Defense counsel reluctantly accepted the court's proposal of a brief continuance, but also requested from the prosecution an “offer of proof ... of what he's going to say,” and immediate disclosure of any documentary evidence Officer Whitney might use with his testimony. The trial court denied appellant's request for an offer of proof or production of documentary evidence as outside the scope of section 1054.5, and subsequently declined to instruct the jury in the terms of CALJIC No. 2.28 concerning the significance of the prosecution's belated disclosure of evidence.
Appellant argues that respondent's failure to disclose Officer Whitney as a prospective expert witness until the “eve of trial” deprived him of the right to “timely discovery,” and with it the right to effectively “confront and cross-examine witnesses.” He maintains that the court erred by refusing to impose sanctions for the prosecution's “unexcused violation of discovery procedures,” in the nature of exclusion of testimony, or at least a CALJIC No. 2.28 instruction. As a result, claims appellant, his “fair trial and due process” rights were denied to his prejudice, necessitating a reversal of the judgment.
The prosecution failed to comply with statutory discovery obligations by delaying disclosure of the identity of Officer Whitney as a witness until essentially the day before trial. (People v. McRae (1967) 256 Cal.App.2d 95, 103, 63 Cal.Rptr. 854.) “[A] defendant does have a right to the names and addresses of prosecution witnesses and a right to have an opportunity to interview those witnesses if they are willing to be interviewed. (See, e.g., Clark v. Superior Court (1961) 190 Cal.App.2d 739, 742–743 [12 Cal.Rptr. 191]; People v. Lopez (1963) 60 Cal.2d 223, 246–247 [32 Cal.Rptr. 424, 384 P.2d 16].)” (Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1332, 64 Cal.Rptr.2d 714;see also In re Littlefield (1993) 5 Cal.4th 122, 135–136, 19 Cal.Rptr.2d 248, 851 P.2d 42.) “To establish on appeal a violation of section 1054.1, subdivision (a), in failing to disclose a witness, the record must affirmatively demonstrate that a specific witness or witnesses were known to and intended to be called by the prosecutor, but were undisclosed to the defense as required by the discovery chapter.” (People v. Tillis (1998) 18 Cal.4th 284, 292, 75 Cal.Rptr.2d 447, 956 P.2d 409.) We find specious respondent's suggestion that Officer Whitney's name listed as the “ ‘filing’ officer” on the complaint furnished to appellant constituted adequate notice of his identity as a witness in accordance with section 1054.1. Only by proper disclosure on a witness list is the opposing party given reasonable notice of the identity of a witness expected to testify at trial. (See Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, 184 Cal.Rptr. 393.) A name on a felony complaint—which may be an officer who otherwise has no connection with the case—is not the functional equivalent of “[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial,” for purposes of section 1054.1, subdivision (a).
*4 23 While section 1054.7 provides that if “information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately” unless “good cause” for a delay is shown, the record before us is devoid of any indication of either immediate disclosure of Officer Whitney upon the prosecution's determination to present his testimony within 30 days before the commencement of trial, or any semblance of good cause for the delayed revelation of his identity to the defense. (See People v. Hammond, supra, 22 Cal.App.4th at p. 1622, 28 Cal.Rptr.2d 180.)
We proceed to a determination of the appropriate remedy for the noncompliance. “Under federal law, the factors to be considered in determining the appropriate remedy for discovery violations include: (1) the effectiveness of less severe sanctions, (2) the impact of preclusion on the evidence at trial and the outcome of the case, (3) the extent of ... surprise or prejudice, and (4) whether the violation was willful. (Taylor v. Illinois [ (1988) ] 484 U.S. [400,] 415, 108 S.Ct. 646, 98 L.Ed.2d 798, fn. 19 [98 L.Ed.2d 798, 814] citing Fendler v. Goldsmith [ (9th Cir.1983) ] 728 F.2d [1181,] 1188–1190.) [¶] Under California's reciprocal discovery scheme, there is an additional statutory requirement. Subdivision (c) of Penal Code section 1054.5 allows a trial court to preclude the testimony of a witness ‘only if all other sanctions have been exhausted.’ (Italics added.)” (People v. Edwards (1993) 17 Cal.App.4th 1248,1264, 22 Cal.Rptr.2d 3.) The preclusion sanction is available under the discovery statute “only as a last resort.” (Ibid.) “Such ‘other sanctions' are described in subdivision (b) of section 1054.5 as ‘including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness ... continuance of the matter, or any other lawful order.’ “ (People v. Hammond, supra, 22 Cal.App.4th at p. 1625, 28 Cal.Rptr.2d 180.)4 “Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b); People v. Edwards, supra, at p. 1264, 22 Cal.Rptr.2d 3.) We review the trial court's ruling under an abuse of discretion standard. (See People v. Gill (1997) 60 Cal.App.4th 743,749; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203, 19 Cal.Rptr.2d 80.)
We conclude that exclusion of the officer's testimony was an inappropriate sanction in the present case.3People v. Hammond, supra,22 Cal.App.4th at p. 1625, 28 Cal.Rptr.2d 180.) Nothing in the record indicates that the omission was a deliberate effort to gain a tactical advantage by the prosecution, as may justify exclusion of evidence. (Cf., Taylor v. Illinois, supra, 484 U.S. 400, 417, 108 S.Ct. 646, 98 L.Ed.2d 798; People v. Edwards, supra, 17 Cal.App.4th at p. 1262, 22 Cal.Rptr.2d 3; People v. Jackson, supra, 15 Cal.App.4th at p. 1203, 19 Cal.Rptr.2d 80.) “f the truth is to be served, the failure to disclose, at least where not wilful, should not be punished by the suppression of evidence, but by giving the offended party a proper opportunity to meet the new evidence.” (People v. McRae, supra, 256 Cal.App.2d at p. 104, 63 Cal.Rptr. 854.) Where, as here, the court is seeking to redress prejudice from nondisclosure rather than imposing punishment for willful misconduct, consideration must be given “to whatever remedy would resolve or significantly resolve the disadvantage, for example, a continuance or a delay in presentation of the testimony to allow the surprised party the opportunity to prepare.” (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757, 28 Cal.Rptr.2d 325.) Alternative sanctions to exclusion are “ ‘adequate and appropriate in most cases.’ “ (People v. Edwards, supra, at p. 1262, 22 Cal.Rptr.2d 3.) To exclude evidence as a means of ameliorating prejudice, “the prejudice would necessarily have to be substantial and irremediable.” (People v. Gonzales, supra, at p. 1757, 28 Cal.Rptr.2d 325.) “[A]bsent a showing of significant prejudice and willful conduct, exclusion of testimony is not appropriate as punishment. To conclude otherwise might well place upon the truth-finding process an imprimatur of unreliability inconsistent with confidence in a finding of guilt.” (Id., at p. 1758, 28 Cal.Rptr.2d 325.)
*5 The trial court did not fail “to employ any of the sanctions indicated by section 1054.5(b),” as asserted by appellant. The commencement of trial was delayed for two days for defense counsel to respond to the disclosure of Officer Whitney as an expert witness, a nondisclosure remedy specifically articulated in the statute to “address prejudice caused by a lack of preparation for the witness.” (People v. Hammond, supra, 22 Cal.App.4th at p. 1625, 28 Cal.Rptr.2d 180.) We further find no error in the trial court's selection of the less restrictive alternative sanction of immediate disclosure and a brief continuance to delay the presentation of Officer Whitney's testimony. Appellant has failed to establish significant or irremediable prejudice associated with the late disclosure of the witness.
People v. Walton (1996) 42 Cal.App.4th 1004, 1017, 49 Cal.Rptr.2d 917.)
These are just a couple examples that demonstrate what needs to be disclosed regarding experts (name and contact info and any reports they've prepared, 30 days before trial) and how failures to comply are dealt with (time given to the defense to consider, research and prepare).
BBM.
This is very helpful thank you.
