California Criminal Jury Instructions (CALCRIM) (2017)

306. Untimely Disclosure of Evidence

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306.Untimely Disclosure of Evidence
Both the People and the defense must disclose their evidence to the
other side before trial, within the time limits set by law. Failure to
follow this rule may deny the other side the chance to produce all
relevant evidence, to counter opposing evidence, or to receive a fair
trial.
An attorney for the (People/defense) failed to disclose:
<describe evidence that was not disclosed> [within the legal time period].
In evaluating the weight and significance of that evidence, you may
consider the effect, if any, of that late disclosure.
[However, the fact that the defendant’s attorney failed to disclose
evidence [within the legal time period] is not evidence that the
defendant committed a crime.]
<Consider for multiple defendant cases>
[You must not consider the fact that an attorney for defendant
<insert defendant’s name> failed to disclose evidence when
you decide the charges against defendant[s] <insert names
of other defendant[s]>.]
New January 2006; Revised February 2014
BENCH NOTES
Instructional Duty
While the court has discretion to give an instruction on untimely disclosure of
evidence (Pen. Code, § 1054.5(b)), the court should not give this instruction unless
there is evidence of a prejudicial violation of the discovery statute. (See People v.
Bell (2004) 118 Cal.App.4th 249, 254–257 [12 Cal.Rptr.3d 808]; People v. Cabral
(2004) 121 Cal.App.4th 748, 752–753 [17 Cal.Rptr.3d 456]; People v. Saucedo
(2004) 121 Cal.App.4th 937, 942–943 [17 Cal.Rptr.3d 692].) The court should
consider whether giving this instruction could jeopardize the defendant’s right to a
fair trial if the jury were to attribute a defense attorney’s malfeasance to the
defendant.
This instruction addresses a failure to comply with Penal Code requirements. If the
court imposes additional sanctions, it may choose to instruct the jury accordingly.
(See People v. Zamora (1980) 28 Cal.3d 88, 103 [167 Cal.Rptr. 573, 615 P.2d
1361]; People v. Edwards (1993) 17 Cal.App.4th 1248, 1265 [22 Cal.Rptr.2d 3].) A
court may make any order necessary to enforce the disclosure provisions, including,
but not limited to, orders for immediate disclosure, contempt proceedings, delaying
or prohibiting the testimony of a witness or the presentation of real evidence,
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continuance of the matter, or any other lawful order. (Pen. Code, § 1054.5(b).)
If the court concludes that one defendant in a multidefendant case failed to comply
with the statute, the last bracketed paragraph should be given.
If the court determines that the defendant is personally responsible for discovery
abuse, see CALCRIM No. 371, Consciousness of Guilt: Supression and
Fabrication of Evidence.
AUTHORITY
• Instructional Requirements. Pen. Code, § 1054.5(b); People v. Bell (2004) 118
Cal.App.4th 249, 254–257 [12 Cal.Rptr.3d 808]; People v. Cabral (2004) 121
Cal.App.4th 748, 752–753 [17 Cal.Rptr.3d 456]; People v. Saucedo (2004) 121
Cal.App.4th 937, 942–943 [17 Cal.Rptr.3d 692].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 79 et
seq.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 70,
Discovery and Investigation, § 70.09[1] (Matthew Bender).
307–314. Reserved for Future Use
EVIDENCE CALCRIM No. 306
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