CALCRIM No. 306. Untimely Disclosure of Evidence

Judicial Council of California Criminal Jury Instructions (2024 edition)

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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.]

[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,

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 (4th ed. 2012) Criminal Trial, § 93-95

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

Page last reviewed May 2024