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TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

DANIEL E. LUNGREN

Attorney General

 

OPINION

of

DANIEL E. LUNGREN

Attorney General

GREGORY L. GONOT

Deputy Attorney General

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No. 98-204

December 30, 1998

 

THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY,

COUNTY OF VENTURA, has requested an opinion on the following question:

Prior to the filing of a criminal complaint, may law enforcement agencies

destroy interview notes containing witness statements that have been transferred to a formal

report?

CONCLUSION

Prior to the filing of a criminal compliant, law enforcement agencies may

destroy interview notes containing witness statements that have been transferred to a formal

report.
1 All references hereafter to the Penal Code are by section number only.

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ANALYSIS

The question presented for resolution concerns recent changes in California’s

criminal discovery statutes (Pen. Code, §§ 1054-1054.7)1 and case law holding that interview

notes of witness statements are subject to discovery (Thompson v. Superior Court (1997) 53

Cal.App.4th 480). Prior to the filing of a criminal complaint, may law enforcement agencies

destroy their notes of witness statements that have been transferred to formal reports? We

conclude that the new discovery statutes do not prohibit the destruction of interview notes

in the circumstances presented.

Comprehensive criminal discovery reforms were enacted when the voters

approved an initiative measure, Proposition 115, on June 5, 1990. The purposes of the

reforms are set forth in section 1054:

“This chapter shall be interpreted to give effect to all of the following

purposes:

“(a) To promote the ascertainment of truth in trials by requiring timely

pretrial discovery.

“(b) To save court time by requiring that discovery be conducted

informally between and among the parties before judicial enforcement is

requested.

“(c) To save court time in trial and avoid the necessity for frequent

interruptions and postponements.

“(d) To protect victims and witnesses from danger, harassment, and

undue delay of the proceedings.

“(e) To provide that no discovery shall occur in criminal cases except

as provided by this chapter, other express statutory provisions, or as mandated

by the Constitution of the United States.”

The materials and information subject to discovery by each side in a criminal proceeding are

described in sections 1054.1 and 1054.3. Section 1054.1 states with respect to necessary
2 We will assume, without deciding, that the only notes or reports of witness statements that are

discoverable are “of witnesses whom the prosecutor intends to call at the trial” (see § 1054.3, subd. (a)) and

that the notes in question here would be reflective of the statements of witnesses whom the prosecutor intends

to call at the trial.

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disclosures by the prosecuting attorney:

“The prosecuting attorney shall disclose to the defendant or his or her

attorney all of the following materials and 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:

“(a) The names and addresses of persons the prosecutor intends to call

as witnesses at trial.

“(b) Statements of all defendants.

“(c) All relevant real evidence seized or obtained as a part of the

investigation of the offenses charged.

“(d) The existence of a felony conviction of any material witness whose

credibility is likely to be critical to the outcome of the trial.

“(e) Any exculpatory evidence.

“(f) Relevant 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

Section 1054.3 provides with respect to necessary disclosures by defense counsel:

“The defendant and his or her attorney shall disclose to the prosecuting

attorney:

“(a) The names and addresses of persons, other than the defendant, he

or she intends to call as witnesses at trial, together with any relevant written

or recorded statements of those persons, or reports of the statements of those
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persons, including any reports or statements of experts made in connection

with the case, and including the results of physical or mental examinations,

scientific tests, experiments, or comparisons which the defendant intends to

offer in evidence at the trial.

“(b) Any real evidence which the defendant intends to offer in evidence

at the trial.”

Section 1054.5 governs when discovery rights may be asserted and how they may be

enforced:

“(a) No order requiring discovery shall be made in criminal cases

except as provided in this chapter. This chapter shall be the only means by

which the defendant may compel the disclosure or production of information

from prosecuting attorneys, law enforcement agencies which investigated or

prepared the case against the defendant, or any other persons or agencies

which the prosecuting attorney or investigating agency may have employed to

assist them in performing their duties.

“(b) Before a party may seek court enforcement of any of the

disclosures required by this chapter, the party shall make an informal request

of opposing counsel for the desired materials and information. If within 15

days the opposing counsel fails to provide the materials and information

requested, the party may seek a court order. Upon a showing that a party has

not complied with Section 1054.1 or 1054.3 and upon a showing that the

moving party complied with the informal discovery procedure provided in this

subdivision, a court may make any order necessary to enforce the provisions

of this chapter, including, but not limited to, immediate disclosure, contempt

proceedings, delaying or prohibiting the testimony of a witness or the

presentation of real evidence, continuance of the matter, or any other lawful

order. Further, the court may advise the jury of any failure or refusal to

disclose and of any untimely disclosure.

“(c) The court may prohibit the testimony of a witness pursuant to

subdivision (b) only if all other sanctions have been exhausted. The court

shall not dismiss a charge pursuant to subdivision (b) unless required to do so
3 We may assume for our purposes that defense counsel has made “an informal request . . . for the

desired materials and information” (§ 1054.5, subd. (b)) immediately upon the filing of the criminal complaint.

From that time on, any interview notes of witnesses whom the prosecutor intends to call at the trial could not

be destroyed without first being turned over to defense counsel.

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by the Constitution of the United States.”3

In Thompson v. Superior Court, supra, 53 Cal.App.4th 480, defense counsel

disclosed to the prosecution certain investigation reports of interviews of two defense

witnesses but refused to deliver the interview notes upon which the reports were based. (Id.,

at pp. 482-483.) The court ruled that the interview notes were discoverable if they were still

in existence and if they did not contain the attorney’s work product or other privileged

material. (Id., at p. 485.) With respect to whether the interview notes had to be preserved

in order to be turned over to opposing counsel, the court merely noted a 1981 case holding

that the preservation of the notes was not required:

“See In re Gary G. (1981) 115 Cal.App.3d 629, 639-642 (prosecution

investigator’s raw notes used to prepare a formal written report given to the

defense should be disclosed if in existence when a discovery order entered,

but, if destroyed before entry of the order, no discovery violation); . . .” (Id.,

at p. 485, fn. 3.)

This single reference in Thompson would seemingly answer the question

presented here. The Thompson court’s reference to the holding of the Gary G. case reflects

longstanding criminal discovery policy in this state. Prior to the enactment of sections 1054-

1054.7, California law did not require law enforcement agencies to retain for purposes of

discovery notes of witness statements that had been transferred to a formal report. (See, e.g.,

People v. Von Villas (1992) 10 Cal.App. 4th 201, 248; People v. Garcia (1986) 183

Cal.App.3d 335, 348-350; People v. Angeles (1985) 172 Cal.App.3d 1203, 1211-1217;

People v. Tierce (1985) 165 Cal.App.3d 256, 261-265; People v. Seaton (1983) 146

Cal.App.3d 67, 75-76; People v. Savage (1982) 129 Cal.App.3d 1, 2-4; In re Gary G. (1981)

115 Cal.App.3d 629, 639-642; People v. Dickerson (1969) 270 Cal.App.2d 352, 358-360.)

In language often quoted, the court in People v. Dickerson, supra, 270 Cal.App.2d at 360,

rejected the argument that all interview notes must be preserved for purposes of discovery:

“. . . To support such a contention the defense must mean that in

connection with any investigation of an alleged crime, everybody carrying on

such an investigation must preserve rough notes made for the purpose of

ensuring accuracy of their official reports and deliver them upon request to
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defense counsel in order to give possible grounds for cross-examination of

such witnesses; no such rule has ever been propounded; it seems to us that it

seeks to carry to a ridiculous extreme the enunciation of ‘rights of accused

criminals.’ ”

Of course, it is to be recognized that the prosecution has an independent

constitutional obligation to disclose any material evidence that may tend to exculpate the

defendant and must take affirmative steps to preserve such evidence pursuant to the due

process clause of the Fourteenth Amendment. (People v. Johnson (1989) 47 Cal.3d 1194,

1233; Thompson v. Superior Court, supra, 53 Cal.App.4th at 484-485; People v. Robinson

(1995) 31 Cal.App.4th 494, 498-499; Hines v. Superior Court (1993) 20 Cal.App.4th 1818,

1824, fn. 4.) In People v. Roybal (1998) 19 Cal.4th 481, 509-510, the Supreme Court

recently explained:

“Law enforcement agencies have a duty, under the due process clause

of the Fourteenth Amendment, to preserve evidence ‘that might be expected

to play a significant role in the suspect’s defense.’ (California v. Trombetta

(1984) 467 U.S. 479, 488; accord, People v. Beeler (1995) 9 Cal.4th 953.) To

fall within the scope of this duty, the evidence ‘must both possess an

exculpatory value that was apparent before the evidence was destroyed, and

be of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.’ (California v. Trombetta,

supra, 467 U.S. at p. 489; People v. Beeler, supra, 9 Cal.4th at p. 976.”

We are not dealing with exculpatory evidence here, but only with what the new discovery

statutes require with respect to nonexculpatory evidence.

Did the 1990 enactment of sections 1054-1054.7 change prior California law

with respect to the preservation of interview notes prior to the filing of a criminal complaint?

We believe that it did not. First, nothing expressly stated in these statutes requires the

preservation of interview notes in the circumstances presented. Hence, if such a requirement

were to exist, it would only be indirectly by way of implication. 

As previously quoted, section 1054.1 requires the prosecuting attorney to

disclose materials and 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.” 

The words “is” and “to be” are in the present tense. The language of section 1054.1 cannot

reasonably be construed to require the preservation of nonexculpatory interview notes that

have been transferred to a formal report prior to the filing of a criminal complaint.

Initiative measures are subject to the same rules of construction that are
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applicable to statutes enacted by the Legislature. (Lesher Communications, Inc. v. City of

Walnut Creek (1990) 52 Cal.3d 531, 540; Legislature v. Deukmejian (1983) 34 Cal.3d 658,

675.) In DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601, the court expressed the

governing rules:

“To determine the intent of legislation, we first consult the words

themselves, giving them their usual and ordinary meaning. [Citations.] When

‘ “statutory language is . . . clear and unambiguous there is no need for

construction, and courts should not indulge in it.” ’ [Citations.] The plain

meaning of the words in a statute may be disregarded only when that meaning

is ‘ “repugnant to the general purview of the act,” or for some other

compelling reason . . . .’ [Citations.] These principles apply as much to

initiative statutes as to those enacted by the Legislature. [Citation.]”

In Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097, the court recognized

the cardinal rule that a statute ‘. . . is to be interpreted by the language in which it is written,

and courts are no more at liberty to add provisions to what is therein declared in definite

language than they are to disregard any of its express provisions.’ [Citations.]” (See also

Burden v. Snowden (1992) 2 Cal.4th 556, 562; Security Pacific National Bank v. Wozab

(1990) 51 Cal.3d 991, 998; Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50

Cal.3d 370, 381.) Here, the language of section 1054.1 appears unmistakable. No duty to

preserve interview notes arises in the instant circumstances.

We have examined the ballot pamphlet in detail with respect to the intent of

the people in adopting Proposition 115. (Ballot Pamp., Prim. Elec. (June 5, 1990), Prop.

115, pp. 32-35.) No support may be found therein to require the preservation of

nonexculpatory interview notes prior to the filing of a criminal complaint. ‘[B]allot materials

can help resolve ambiguities in an initiative measure [citation], but they cannot vary its plain

meaning.” (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at 602.) “Absent ambiguity, we

presume that the voters intend the meaning apparent on the face of an initiative measure

[citation] . . . .” (Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3d at

543.)

Finally, we need not address the policy reasons that support the destruction of

interview notes or the opposing policy reasons for requiring their preservation. That analysis

has already taken place (see, e.g., In re Gary G., supra, 115 Cal.App.3d at 640-641, 643-

644), and the competing concerns are more appropriately addressed to the Legislature rather

than to the courts or this office. As stated in Wells Fargo Bank v. Superior Court, supra,

53 Cal.3d at 1099: “Our function is not to judge the wisdom of statutes. [Citation.]” In sum,

if interview notes were intended to be preserved in the present circumstances, section1054.1
4

If disclosable evidence is in existence, law enforcement agencies have a general duty to undertake

reasonable efforts in good faith to locate it for purposes of discovery. (In re Littlefield (1993) 5 Cal.4th 122,

129-136.) Nothing in Littlefield imposes any duty with regard to evidence not in existence at the time of the

filing of the criminal complaint. (See also People v. Little (1997) 59 Cal.App.4th 426, 430-433.)

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could easily have so provided. (See Peralta Community College Dist. v. Fair Employment

& Housing Com. (1990) 52 Cal.3d 40, 50; State Farm Mut. Auto Ins. v. Dept. of Motor

Vehicles (1997) 53 Cal.App.4th 1076, 1082.)

The language of section 1054.1 does not change the longstanding duty of law

enforcement agencies regarding the preservation of notes of witness statements prior to the

filing of a criminal complaint.4 We thus conclude that prior to the filing of a criminal

complaint, law enforcement agencies may destroy interview notes containing witness

statements that have been transferred to a formal report.

* * * * *