Under the California Penal Code, prosecutors are required to provide defendants with discovery to assist them in preparing their cases. Depending on the case, discovery can include things like police reports, 911 tapes, witness statements, and prior criminal convictions of prosecution witnesses.
When defendants complain that they have not received all of their discovery, many prosecutors (and some judges) contend that the district attorney doesn’t have to provide it until 30 days before trial. This argument is nonsense. Penal Code section 1054.5 allows defense attorneys to seek a court order for discovery if a prosecutor fails to comply with a defendant’s informal request within 15 days. The statute says nothing about the earliest time an informal request can be made.
The 30-day argument is based on a misunderstanding of Penal Code section 1054.7, which requires that prosecutors provide discovery “at least” 30 days before trial.
I say “misunderstanding,” because section 1054.7 simply governs when a prosecutor must provide discovery in the absence of any request. It does not limit a defendant’s ability to ask for it before a certain point, and then obtain a court order if the request is ignored for 15 or more days.
Amazingly, for more than 20 years following the enactment of these two discovery statutes, no appellate court opinion explained the interplay between them. That changed today. The Court of Appeal published a decision, Magallan v. Superior Court, soundly rejecting the contention that prosecutors can wait until a month before trial before they must comply with a discovery request.
The issue in Magallan was whether a magistrate erred in ordering the district attorney to provide material that would assist the defendant in seeking suppression of narcotics the district attorney intended to introduce at his preliminary hearing. The appellate court upheld the trial court’s order.
The opinion expressly declined to consider whether a magistrate has the power to make a broader order (i.e., for discovery beyond that which was reasonably necessary to assist the defense in litigating a suppression ruling). But it strongly implies that magistrates have – at the very least – a right to order prosecutors to turn over discovery that is “reasonably necessary” for defense counsel to review in order to represent their clients during the preliminary hearing.
And most critically, based on Magallan, prosecutors can no longer claim that they lack any duty to provide discovery during the period following the preliminary hearing and up until 30 days before trial.