2. Compel Discovery

Note: Prior to asking to court to order the Prosecution to provide discovery, the Defense must first informally request discovery.

The following sample motion to compel discovery must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.


TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move the Court for an order compelling discovery.

The motion will be made on the ground that the Deputy District Attorney or the Prosecution team has in their actual or constructive possession certain items of evidence which defense counsel is legally entitled to inspect; the defense has informally requested said evidence, but the District Attorney has not provided said evidence to the defense.

The motion will be based on this notice of motion, the attached declaration, the memorandum of points and authorities served and filed herewith, the records on file in this action and on such oral and documentary evidence as may be presented at the hearing.


By Larry Lawyer,
Attorney for Dave Douglass




“(T)he interest of the prosecution is not that it shall win the case, but that it shall bring forth the true facts surrounding the commission of the crime so that justice shall be done …” (Berger v. United States (1934) 295 U.S. 78, 88)

The purpose of the discovery process in criminal cases is to guarantee a defendant a fair trial by giving him equal access to information so that he may be permitted to present all relevant evidence in his behalf. This aim was emphasized in U.S. v. Nixon (1974) 418 U.S. 683, 709, where the United States Supreme Court stated:

We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed by the prosecution or by the defense.

The sources in expanding criminal discovery can be found in the “Due Process Clause” of the 5th and 14th Amendments to the United States Constitution, and in the 6th Amendment to the United States Constitution.

The United States Supreme Court also stated in Nixon, supra, that to vindicate these guarantees, the courts have a “manifest duty” to ensure that all relevant and admissible evidence be produced.(id.)

Brady v. Maryland (1963) 373 U.S. 83, and its progeny, explain that the prosecution violates a defendant’s Due Process rights when it fails to disclose to the defendant prior to trial, “evidence favorable to an accused. . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (id. at 87). This is the “Brady Rule.”

The Brady Rule is not intended “to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur” (U.S. v. Bagley (1985) 473 U.S. 667, 675). This limited departure from the adversary system “illustrates the special role played by the American prosecutor in the search for truth in criminal trials” (Strickler v. Greene (1999) 527 U.S. 263). The prosecutor’s unique role “transcends that of an adversary: [the prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ ” Bagley, supra at 675, fn.6 (quoting Berger v. United States (1935) 295 U.S. 78, 88; see also Kyles v. Whitley (1995) 514 U.S. 419, 437).

Due Process requires fundamental fairness in the prosecution of a criminal case (Lisenba v. California (1941) 314 U.S. 219, 236). Implicit in the concept of fundamental fairness is the idea that the defendant must have the opportunity to present a complete defense (California v. Trombetta (1984) 467 U.S. 479, 485). The prosecution can ensure that a defendant has the opportunity to present a complete defense by providing access to favorable evidence (Brady, supra).

The United States Supreme Court has held that “[s]uppression by the prosecution of evidence favorable to an accused who has requested it violates Due Process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra). It is the character of the evidence, rather than the character of the prosecutor, that determines whether the suppression of favorable evidence results in constitutional error (U.S. v. Agurs (1976) 427 U.S. 97, 110).

The proper inquiry where the question is whether the prosecution violated a defendant’s right to Due Process by withholding evidence is:

(1) whether the evidence was favorable to the defendant; and,
(2) whether the evidence was material to guilt or punishment.
(See United State v. Bagley (1985) 473 U.S. 667).

For purposes of this analysis, it does not matter whether the evidence was suppressed by the prosecutor or by the other agents on the case (Kyles v. Whitley (1995) 514 U.S. 419). Rather, the question is whether the evidence was suppressed by the prosecution, for which both the prosecutors and the investigators serve as agents.(id.)

The ultimate responsibility for ensuring that exculpatory evidence is provided in accordance with Brady rests with the prosecutor (id. at 438). A miscommunication between the prosecutor and the investigators that results in the suppression of exculpatory evidence is no excuse for a Brady violation (id.). As the Supreme Court explained in Kyles v. Whitley, since “the prosecutor has the means to discharge the government’s Brady responsibility if he will, any argument excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government’s obligation to ensure fair trials.” (id.)


The Prosecution has a duty to seek out and disclose all discoverable materials held by members of the “prosecution team.”

The prosecutors assigned to try a case have the duty “to learn of any favorable evidence known to others acting on the government’s behalf in the case” (Kyles v. Whitley (1995) 514 U.S. 419, 437). Accordingly, the Brady/Kyles rule extends to all members of the “prosecution team,” which includes both investigative and prosecutorial personnel (U.S. v. Morris (7th Cir. 1996) 80 F. 3rd 1151, 1170 (citing with favor Carey v. Duckworth (7th Cir. 1984) 738 F. 2nd 875, 878, for proposition that prosecution team includes federal DEA agents and local police)).

The Prosecution is not required to review the files of agencies that have no involvement in the investigation or prosecution (Morris, supra), but prosecutors are required to examine the files of those entities who actively participate in the investigation or prosecution of a case (See Kyles, supra; Morris, supra at 1169).

It is well established that a prosecutor is deemed to have “control” over all members of an investigatory team and that evidence maintained by cooperating entities falls within the scope of the Prosecution’s Brady obligation (Kyles, supra, at pp. 437-438 (“any favorable evidence known to the others acting on the government’s behalf is imputed to the prosecution.”; U.S. v. Zuno-Arce (9th Cir. 1995) 44 F. 3rd 1420 (“Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does.”)


First. The date and nature of any felony or misdemeanor arrest or conviction of any participant in or witness to the alleged crime.

Penal Code §1054.1 provides for defense discovery of “felony convictions of material witnesses whose credibility is likely to be critical to the outcome of the trial.” Evidence Code §780 and People v. Castro (1985) 38 Cal 3rd 301, 211, allow impeachment of any witness by felony convictions involving “moral turpitude.” Impeachment of any witness by prior conduct not amounting to a felony and involving “moral turpitude” is also proper. (People v. Wheeler (1992) 4 Cal 4th 284) Accordingly, records of arrests and convictions of witnesses for felonies and misdemeanors are discoverable, at least if the conduct involves “moral turpitude.” (People v. Santos (1994) 30 Cal App 4th 169.)

In Hill v. Superior Court of Los Angeles County (1974) 10 Cal 3rd 812, 817, the California Supreme Court held that the felony conviction records and the records of arrests and detentions of prospective witnesses are discoverable by the defendant, upon a showing of good cause, for the purpose of impeachment.

Second. The names, addresses and telephone numbers of any and all persons who were percipient witnesses to the offense alleged, including all persons who were held in the same cell with Defendant at the time of his arrest and all persons present when Defendant was examined in any way.

Persons held in the same cell with Defendant at the time of his arrest may be able to testify as to his state of sobriety, his demeanor, any apparent injury he suffered, any statements he made, or any statements made to him by law enforcement. Such evidence may be used to impeach Prosecution witnesses.

Penal Code §1054.1(a) provides that the Prosecution must disclose the names and addresses of persons intended to be called as witnesses. No legitimate reason exists to withhold discovery of their telephone numbers, and inconvenience to the witnesses will result from unannounced contacts by a defense investigator. Additionally, Penal Code §§841.5(c), 1054.2 implicitly recognize the right of defense counsel to obtain the telephone numbers of victims and witnesses.

Third. Any dispatch tapes relative to the incident within the subject matter of this action.

Tape recordings or records of radio transmissions concerning the facts underlying the charges against the defendant may be relevant to the credibility of witnesses and are therefore discoverable. (United States v. Strifler (9th Cir 1988) 851 F 2nd 1197; Davis v. Alaska (1974) 415 US 308.)

Tape recordings of radio and telephone calls to the police department and the times of police responses are public records within the meaning of Government Code §6200 and may not be destroyed for at least two years (80 Ops Atty Gen 908 (1981)).

Fourth. Any communication tapes between any officer and the communication center and between officers involved in the incident that is the subject matter of this action.

See authority under the Third request.

Fifth. Any calls to 911 or law enforcement concerning the subject matter of this action.

See authority under the Third request.

Sixth. Any documents including, but not limited to, curriculum vitaes, and written reports and/or notes for any expert witness the prosecution intends to call as a witness at trial.

Penal Code §1054.1(f), by implication, provides for defense discovery of identifying information regarding experts. In People v. Johnson (1974) 38 Cal App 3rd 228, the Court of Appeal stated:

Where it is appropriate, the defendant may discover the reports of the state’s experts concerning their examination of real evidence [citation omitted]; discovery of the identity of state experts is analogous.

Evidence that tends to impeach the reliability of the state’s expert is “exculpatory evidence” which state was obligated to turn over to defendant. (People v. Garcia (1993) 17 Cal. App. 4th 1169).

Seventh. All real evidence seized or obtained as a part of the investigation of the offenses charged.

Penal Code §1054.1(c) provides for such discovery.

Eighth. All evidence, however stored, that any defendant, former defendant, person associated with any defendant or former defendant, or any witness in this matter was a gang member, associate of a gang, or in any way affiliated with a gang before the incident leading to the instant case.

Penal Code §1054.1(c) and (e) allow for such discovery. Defendant specifically requests:

All evidence, however stored, that Defendant, any codefendant, and any witness was a gang member, an associate of a gang, or in any way affiliated with a gang before the incident leading to the instant case.

All evidence, however stored, that any person identified in Defendant’s Facebook or other social media account was a gang member, an associate of a gang, or in any way affiliated with a gang before the incident leading to the instant case.

All evidence, however stored, that Eastside Boys or that any member, associate or other person believed by law enforcement to be related to that group participates in any crime charged herein for the benefit of Eastside Boys.

Ninth. An opportunity to examine all demonstrative and real evidence, including charts, diagrams and other exhibits, whether obtained as part of the investigation of the offenses charged or not, that the Prosecution intends to offer in evidence at trial or to be viewed by the jury.

The Prosecution’s duty to disclose includes trial exhibits because the defense must disclose defense trial exhibits to the prosecution (Penal Code §1054.3(b); Izazaga v. Superior Court (1991) 54 Cal. 3rd 356, 375).

Tenth. Any original notes taken by any police officer relating to the interview of any witness intended to be called by the District Attorney to testify against any defendant.

In People v. Angeles (1985) 172 Cal App 3rd 1203, the Court of Appeal stated, “ ‘… [Law enforcement officers] must take reasonable precautions to preserve for trial [their] original handwritten notes made in the course of interrogating a criminal defendant unless the interrogation is tape recorded and the tape is preserved.’ …”

Due process requires disclosure of any evidence that may undermine the credibility or probative value of prosecution evidence. (United States v. Strifler (9th Cir 1988) 851 F 2nd 1197.)

Additionally, the original notes of police officers are reports and contain statements whose disclosure is required by Penal Code §1054.1(f).

In Funk v. Superior Court of Los Angeles County (1959) 52 Cal 2nd 423, the court noted that the defendant “moved for an order directing that he be allowed to examine the original notes made by the officers and to inspect and copy written statements prepared from the notes… The showing made by petitioner is sufficient to entitle him to production of the documents he wishes to inspect. It is settled that, during trial, an accused can compel the People to produce written statements of prosecution witnesses relating to the matters covered in their testimony. [Citation omitted.] As recent decisions of this court illustrate, there is no sound basis for applying a different rule merely because production is requested prior to, rather than during trial.”

Eleventh. Promises, offers, or inducements

The prosecutor has a duty to disclose any explicit promise, offer, or inducement extended to prosecution witnesses. In U.S. v. Bagley (1985) 473 U.S. 667, the Supreme Court found a Brady violation for a failure to disclose written contracts with informant witnesses. In In re Sassounian (1995) 9 Cal. 4th 535 the California Supreme Court concluded the prosecution withheld favorable evidence when it failed to disclose evidence of benefits provided, and promises made, to a jailhouse informant.

The prosecution has a duty to disclose any “implied promise,” such as when the words are not expressed but the substance implies the witness will receive a benefit. In Giglio v. U.S. (1972) 405 U.S. 150, the Supreme Court found a Brady violation for the failure to disclose that a prosecution witness had been told to rely on the government’s good judgment whether he would be prosecuted if he agreed to testify.

The prosecutor cannot evade the duty to disclose promises by extending such offers in secret to the witness’ attorney (People v. Phillips (1985) 41 Cal. 3rd 29, 47; full disclosure of any agreement between the prosecution and a witness or the witness’s attorney is required, regardless of whether the witness has been fully informed of the agreement).

Twelfth. Promises in prior cases

When a prosecution witness, who is currently facing prosecution, has received benefits to cooperate with law enforcement in prior cases, the prosecution has a duty to disclose this fact. In People v. Kasim (1997) 56 Cal. App. 4th 1360, 1382, a prosecution witness, currently facing prosecution, had received benefits in the past by cooperating with law enforcement and thus had reason to believe they would in the instant case. The court concluded this evidence must be disclosed because the jury “was entitled to know about all historical events bearing on these witnesses’ propensity to be truthful or untruthful.”

Thirteenth. Pending charges

In People v. Coyer (1983) 142 Cal. App. 3rd 839, 842, the court held that “a defendant is entitled to discovery of criminal charges currently pending against prosecution witnesses anywhere in the state” because “the pendency of criminal charges is material to a witness’ motivation in testifying even when no express ‘promise of leniency or immunity’ have been made.” This decision was reaffirmed in People v. Hayes (1992) 3 Cal. App. 4th 1238.

Fourteenth. Parole or probation status

In Davis v. Alaska (1974) 415 U.S. 308, 319, the United States Supreme Court held that a defendant has the right to prove at trial that a prosecution witness is on probation, in order to establish that the witness’ testimony is biased.

In People v. Price (1991) 1 Cal. 4th 324, 486, the California Supreme Court held that a defendant is entitled to prove that a prosecution witness is on parole “to show the witness’ potential bias resulting from concern about possible revocation.”

Fifteenth. Drug or alcohol use

Evidence that a prosecution witness is addicted to, or affected by, alcohol or an illegal drug is admissible to impeach the credibility of that witness when there is evidence that the witness was under the influence of alcohol or another drug when the events occurred about which the witness would testify, or when the witness’ mental faculties were actually impaired by the drug habit (People v. Smith (1970) 4 Cal. App. 3rd 403, 412; People v. Hernandez (1976) 63 Cal. App. 3rd 393, 405.

Sixteenth. Training and certification records regarding the use and operation of any testing equipment for the person or persons who conducted any testing concerning any evidence related to this matter.

Presumably, testing equipment will not give accurate results if it is not properly operated. The qualifications of the persons performing the tests on seized items are discoverable for impeachment purposes and as being exculpatory (Brady, supra, Penal Code §1054.1(e)).

Seventeenth. Any photographs taken of the Defendant at or near the time of the Defendant’s arrest on these charges.

Penal Code §1054.1(c) requires the prosecution to disclose real evidence obtained as part of the investigation of the offenses charged. This, obviously, includes any photographs the Prosecution team took of the Defendant.

Eighteenth. A listing of any codes, shorthand, messages, and acronyms used in any report, computer file, or other document used or prepared in the investigation of this case.

The codes are foundational information under People v. Adams (1976) 59 Cal App 3rd 559. Due process forbids the Prosecution from using codes to keep information from the Defense.

Nineteenth. Any evidence to be used in rebuttal of the defense case.

The identities and statements of witnesses whom the prosecution intends to call in rebuttal of the defense are discoverable. (Izazaga v. Superior Court (1991) 54 Cal 3rd 356)

The Prosecution’s duty to disclose evidence applies to evidence to be used as part of their case-in-chief as well as rebuttal evidence (People v. Hammond (1994) 21 Cal. App. 4th 1611).