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American University Law Review
December, 1998


LESS RELIABLE PRELIMINARY HEARINGS AND PLEA BARGAINS IN CRIMINAL CASES IN CALIFORNIA: DISCOVERY BEFORE AND AFTER PROPOSITION 115

Laura Berend*

INTRODUCTION

On June 5, 1990, the voters of California passed Proposition 115, the Crime Victims Justice Reform Act. The initiative implemented a broad range of statutory and constitutional changes relating to California's criminal justice system. For the most part, these changes limit the procedural rights of the accused and increase the rights and discretion of the prosecution in an effort to harmonize the system with federal law.

By creating a statutory and reciprocal discovery scheme in anticipation of trial, Proposition 115 dramatically alters the discovery process in criminal cases and may well have set a trend that other states will follow. In particular, its changes to court-ordered defense discovery undermine the reliability of preliminary hearings and plea bargaining. A meaningful analysis of the effect of these discovery changes on preliminary hearings and plea bargaining requires an examination of the purpose of the criminal justice system and the function and history of the discovery process. This Article discusses how Proposition 115's changes to the discovery process influence these functions in this historical and philosophical context.

Part I briefly describes the purpose of the criminal justice system, and the role of discovery in facilitating that purpose. Part II examines the historical development of the timing and substance of discovery in California before Proposition 115 was passed, while Part III identifies the purpose and nature of Proposition 115's changes to that process. Part IV discusses the unfortunate impact of these changes on the effectiveness of preliminary hearings to screen reliable criminal cases prior to trial, and on the likelihood of achieving a reliable result in the event of a trial or plea bargain. Part IV then examines the inadequacy of other pretrial sources of information as substitutes for discovery, and concludes that Proposition 115's discovery changes undermine the reliability of judgments in the criminal trial courts. Finally, Part V proposes reforms.


* Professor of Law, the University of San Diego School of Law. I am especially grateful to Professor Cynthia Lee of the University of San Diego School of Law, and Jacqueline Crowle, Deputy Alternate Public Defender and Head of Writs and Appeals at the Department of the San Diego Alternate Public Defenders, for their invaluable suggestions for this Article as well as an earlier draft. I appreciate the constructive comments from San Diego attorneys John Cotsirilos and Thomas Ulovec, San Francisco Public Defender Staff Attorney Jan Lecklikner, Senior Assistant Attorney General Gary Schons of the Criminal Law Division of the California Attorney General's Office in San Diego, and Professor Linda Morton of California Western School of Law. I thank Barbara Craig, Steve Sandoval (both class of 1998), Kimberli Carroll and Janet Kelleran (both class of 1999) for their able research assistance. I wish to recognize the comments and support from San Diego attorney Steve Perello, and Professors Lynne Dallas, Jean Montoya, and Fred Zacharias of the University of San Diego School of Law, and Professor Ed Imwinkelried of the University of California at Davis School of Law, and the research assistance provided by Chris Hoffman (class of 1995), Rich Ames (class of 1996), and Janet Hollins (class of 1997) for an earlier draft.