THE RIGHT TO RAP SHEET DISCOVERY
Stephen Munkelt
Nevada City
Introduction
I was tapped to write this piece on discovery of “rap sheets” after I publicly made the
general assertion that we are entitled to them. (On the invaluable CLARANET listserver.) I
do believe the defense is entitled to rap sheets of the defendant and the witnesses in a
criminal case, though there can be obstacles to overcome. This article is not intended as a
definitive treatise, but is rather a starting point for discussion, research, and litigation.
What is a Rap Sheet?
First, a definition of “rap sheets.” Although the slang term refers generally to any
arrest record, we need to be more specific for litigation. Unfortunately, decisions which refer
to rap sheets are often cavalier in their usage, using “rap sheet” and “felony conviction”
interchangeably. So when I use the term, I mean: 1) “[s]tate summary criminal history
information” as defined in Penal Code section 11105(a)(2)(A); and 2) “criminal offender
record information” as defined in Penal Code section 11075(a). Putting them together, these
categories should include records of all detentions, arrests, charges filed, convictions, and
law enforcement contacts “initiating any criminal proceeding.”
The Attorney General is responsible for maintaining and protecting the security of
offender information, including fingerprints, photos and any other accepted means of
establishing the identity of the records. (Pen. Code § 11077.) The Department of Justice
maintains the summary criminal history information, and the Attorney General is charged
with disseminating the information as authorized by law. (Pen. Code §§ 11105(a)(1) and
11105(b).)
It should come as no surprise that District Attorneys are authorized to receive rap
sheet information. (Pen. Code § 11105(b)(3).) Or that parole and probation officers share
that status. (Pen. Code § 11105(b)(5 & 6).) But a “public defender or attorney of record
when representing a person in a criminal case” is also entitled to receive that information “if
authorized access by statutory or decisional law.” Finally, the subject of the record is entitled
to a copy, and to request correction of the records. (Pen. Code §§ 11105(b)(11) and 11120 et
seq.)
The Digest Version
Before wading into a detailed and historical analysis, I will try to summarize key
points in a practical way. Strategically, in my practice I have often found that quoting section
11105(b)(8) to a D.A. will overcome objections to the release of rap sheets. It seems that
someone at the A.G.’s office has done training sessions for prosecutors which gave the
impression it would be a crime to turn over state criminal histories to the defense. Pointing
out that there is statutory authorization to receive the records, and that only unauthorized
disclosure is a crime, can get over the threshold in some cases.
But sometimes not. There is that pesky “if authorized by statutory or decisional law”
language. Some prosecutors will, surprisingly enough, ask for citation to a statute or case
that satisfies this requirement. I personally believe – as an article of faith in our system of
justice – that a criminal defendant is entitled to discovery of any information that may help
him prove a defense, attack the prosecution case, or impeach an adverse witness. Sometimes,
though, arm-waving is not enough. So here are some key talking points:
1.
The D.A. is required to give us names and identifying information of witnesses. (Pen. Code
§ 1054.1(a)) She must also disclose felony convictions of witnesses whose credibility is
“critical.” (Pen. Code § 1054.1(d).)
2.
The D.A. is also required to turn over “exculpatory” evidence, (Pen. Code § 1054.1(e)) and
any “favorable” evidence including evidence affecting credibility of witnesses material to the
outcome. (See People v. Little, infra, Brady v. Maryland, and arguments below.)
3.
The D.A. must turn over the defendant’s rap sheet if he cannot readily obtain it on his own.
(And he can’t.) (Pen. Code § 11105(b)(11); Little, etc., infra.)
4.
The D.A. must turn over convictions and charges filed against any witness material to the
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outcome, because this is public record information not subject to restriction under section
11105, and not readily obtainable by the defense. (See CBS Broadcasting Inc. v. Superior
Court (2001) 91 Cal.App.4th 892, 907-908.)
5.
The D.A. must turn over full rap sheets on all material witnesses, because that is mandated
under the Fifth Amendment for all favorable information which may assist in impeaching any
witness material to guilt or innocence. (Pen. Code § 11105(b)(8); and see Little, etc., infra.)
6.
Cases which say we are not entitled to rap sheets rely on Hill v. Superior Court, decided in
1974, and specifically relying on the fact that Penal Code section 11105 at that time did not
permit disclosure to the public defender. But in 1975 the Legislature amended the section to
specifically provide for disclosure in section 11105(b)(8). The cases relying on Hill neither
discuss nor acknowledge that it has been superceded by statute.
Principles of Discovery Supporting Access to Rap Sheets
A great starting point for establishing the scope of permissible discovery in California is the
authority relied upon to decide Pitchess v. Superior Court (1974) 11 Cal.3d 531. Most often, we
think of Pitchess in its factual context, as authority to pry loose relevant police personnel records.
But the court summarized and affirmed prior cases on defense discovery before reaching that issue.
The first useful case is Ballard v. Superior Court (1966) 64 Cal. 2d 159. The specific issue
in Ballard was a defense request for an order for psychiatric exam of the victim in a sex case. The
holding on that issue was overruled in 1980 by Penal Code section 1112, which forbids courts from
ordering psychiatric examinations of victims or complaining witnesses in sex-crime cases in order to
assess their credibility. (People v. Anderson (2001) 25 Cal.4th 543, 575.) However, there are two
significant points for which Ballard can still be cited: 1) In the absence of statute, the court has
discretion to set rules of criminal discovery, and 2) “A showing ... that the defendant cannot readily
obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of
any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears
reasonable that such knowledge will assist him in preparing his defense....” (64 Cal.2d at p. 167,
citation omitted, emphasis in original.)
Both points were applied again in Hill v. Superior Court (1974) 10 Cal.3d 812, the immediate
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predecessor of Pitchess. Hill is also interesting because the factual context of the case involved
defense efforts to get criminal history information. Here, the scope of discovery is articulated
together with the principle that the prosecution’s duty is to seek justice, not victory:
It has been stated that the basis for granting pretrial discovery to a defendant is the
fundamental principle that an accused is entitled to a fair trial [citations omitted], and
“Absent some governmental requirement that information be kept confidential for the
purposes of effective law enforcement, the state has no interest in denying the
accused access to all evidence that can throw light on the issues in the case, and in
particular it has no interest in convicting on the testimony of witnesses who have not
been as rigorously cross-examined and as thoroughly impeached as the evidence
permits.” (10 Cal.3d at p. 816,i citations omitted, emphasis added.)
Using the authority of both Hill and Ballard, the Pitchess decision recognized a broad right to
defense discovery in the interest of fairness, and set a low threshold for obtaining information from
the prosecution when the defendant cannot “readily obtain the information through his own efforts.”
(Pitchess, supra, 11 Cal.3d 537.) Pitchess also ties the discovery issue to Fifth Amendment due
process concerns – which is significant in our context of rap sheet discovery. The court says:
Allowing an accused the right to discover is based on the fundamental proposition
that he is entitled to a fair trial and an intelligent defense in light of all relevant and
reasonably accessible information. (Pitchess, supra, 11 Cal.3d at p. 535, emphasis
added.)
And:
Were a court to require strict adherence to the provisions of [civil discovery] it is
likely that Fifth Amendment problems would develop in many instances. Therefore,
in contrast to the formal requirements for civil discovery, an accused in a criminal
prosecution may compel discovery by demonstrating that the requested information
will facilitate the ascertainment of the facts and a fair trial. (11 Cal.3d at p. 536.)
As you know, the standards for disclosure of personnel records were adopted from Pitchess
by the Legislature, in Evidence Code section 1043 et seq. Thankfully, the courts have continued to
tie the right to discovery of personnel records to “the defendant’s right to a fair trial,” i.e., due
process. For example: “The statutory scheme carefully balances two directly conflicting interests:
the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling
interest in all information pertinent to the defense.” (City of San Jose v. Superior Court (1993) 5
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Cal.4th 47, 53.) “[T]he Legislature has attempted to protect the defendant’s right to a fair trial and
the officer’s interest in privacy to the fullest extent possible.” (People v. Mooc (2002) 26 Cal.4th
1216, 1227.) “Under Pitchess, a defendant need only show that the information sought is material ‘to
the subject matter involved in the pending litigation’” and “unlike Brady, California’s Pitchess
discovery scheme entitles a defendant to information that will ‘facilitate the ascertainment of the
facts’ at trial ... that is, ‘all information pertinent to the defense.’” (City of Los Angeles v. Superior
Court (Brandon) (2002) 29 Cal.4th 1, 10, 14.)
So with this line of authority, when you want to argue for discovery of rap sheet information,
you can submit a declaration stating on information and belief that the state criminal history
information includes convictions and police contacts which may be admissible to impeach
prosecution witnesses, or lead to discovery of admissible information. You can also state that the
D.A. has convenient access to the information, which cannot be obtained by the defense with
reasonable effort, because records are scattered throughout the state, and some of the information is
maintained only by the Attorney General. Then you cite the authority above for the proposition that
the disclosure is compelled by the Fifth Amendment right to fair trial, and particularly to confront
and “rigorously cross-examine” and “thoroughly impeach” the prosecution witnesses. (Hill, supra,
10 Cal.3d at p. 816.)
Discovery Under Section 1054.1
Of course, there was no statutory discovery in criminal cases at the time of Pitchess and Hill.
A new era began when Prop. 115 added Article I, section 30(c), to the Constitutionii and section
1054 et seq. to the Penal Code in 1990. The primary purpose of the new discovery scheme was to
reverse the ban on prosecution discovery of defense evidence established by Prudhomme v. Superior
Court (1970) 2 Cal.3d 320. Thus the scope of statutory discovery was defined with an eye to
meeting “reciprocity” requirements set by the U.S. Supreme Court when requiring discovery from
the defendant. Izazaga v. Superior Court (1991) 54 Cal. 3d 356 upheld the new defense discovery
requirements.
However, the court simultaneously recognized that “[t]he prosecutor’s duties of
disclosure under the due process clause are wholly independent of any statutory scheme of reciprocal
discovery.” (54 Cal.3d at p. 378.)
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Unfortunately, the comment about discovery as a due process right in Izazaga is focused on
the specific argument raised in that case: preservation of the right under Brady to disclosure of
material, exculpatory evidence. It is therefore possible to argue that after Prop. 115, Brady and its
progeny,iii not Pitchess and Hill, define the scope of the defense right to obtain discovery. Although
Brady places a broad duty on the prosecution to actively seek out and turn over exculpatory
information, it has been argued that it does not extend to impeachment and criminal history
information. Worse, Brady places the duty on the prosecution to disclose, rather than focusing on
the right of the defense to receive, discovery.
The answer, if that argument is made, begins with the language from Pitchess about Fifth
Amendment implications. Fortunately, it can then continue with more modern and specific
authority. In People v. Little (1997) 59 Cal.App. 4th 426, the Third Appellate District analyzed
disclosure of rap sheet information under section 1054.1. After resolving the specific issue, the court
said:
While we conclude the prosecution has a duty to disclose the felony convictions of all
material prosecution witnesses when the record is ‘reasonably accessible’ under state
law, we note that federal courts have held Brady v. Maryland, supra, 373 U.S. 83
requires the same result. Brady held that” ... the suppression by the prosecution of
evidence favorable to an accused upon request 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.” (Id. at p. 87 [83 S.Ct. at pp. 1196-1197, 10 L.Ed.2d at
p. 218].) The Brady disclosure requirement has been extended to include evidence
which serves to impeach witness testimony. (59 Cal.4th at p. 433, citations omitted,
emphasis added; accord People v. Santos (1994) 30 Cal.App.4th 169, 178.)
The State Supreme Court’s definitive statement on Brady cites Little on the scope of the
disclosure requirement, and restates the relevant standard: “the prosecution’s responsibility for
failing to disclose known, favorable evidence rising to a material level of importance is inescapable.”
(In Re Brown, supra, 17 Cal.4th at p. 880 and fn. 4.) For our purposes, the reference to “favorable”
information, rather than merely “exculpatory” information may be an important key to convincing
prosecutors and trial judges that access to potential impeachment information is a constitutional
requirement.
In addition to Pitchess and Brady, there is a third line of cases which I think supports a broad
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interpretation of the defendant’s right to discovery, including rap sheet information. In Washington v.
Texas (1967) 388 U.S. 14, 23, Chambers v. Mississippi (1973) 410 U.S. 284, 302, Davis v. Alaska
(1974) 415 U.S. 308, 319-320, Green v. Georgia (1979) 442 U.S. 95, 97, Crane v. Kentucky
(1986) 476 U.S. 683, 689-690, Delaware v. Van Arsdall (1986) 475 U.S. 673, 680, Rock v.
Arkansas (1987) 483 U.S. 44, 55, and Holmes v. South Carolina (2006) __ U.S. __ [126 S. Ct. 1727;
164 L.Ed. 2d 503], the U.S. Supreme Court has held that the defendant’s rights to due process,
confrontation, and counsel control over state rules of evidence and procedure. Among many
examples of helpful language in these cases is Justice Powell’s statement in Chambers that “The
right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to
defend against the State’s accusations.” (410 U.S. at p. 294.)
Several cases in this line address situations which touch on the defendant’s right to discovery.
In U.S. v. Nixon (1974) 418 U.S. 683 [94 S.Ct. 3090; 41 L.Ed. 2d 103], the court was faced with an
assertion of privilege in Presidential communications, seeking to quash a defense subpoena. The
court held:
[W]hen the ground for asserting privilege as to subpoenaed materials sought for use
in a criminal trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair administration
of criminal justice. The generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal trial.” (418 U.S. at
pp. 712-713.)
As explained in Cheney v. United States Dist. Court (2004) 542 U.S. 367; 124 S.Ct. 2576;
159 L.Ed. 2d 459, Nixon tells us:
In light of the “fundamental” and “comprehensive” need for “every man’s evidence”
in the criminal justice system, [citation] not only must the Executive Branch first
assert privilege to resist disclosure, but privilege claims that shield information from
a grand jury proceeding or a criminal trial are not to be “expansively construed, for
they are in derogation of the search for truth. [Citation.]” (542 U.S. at p. 384.)
Another example, applying the Chambers rationale, is Murdoch v. Castro (9th Cir. 2004) 365
F.3d 699. The Ninth Circuit held, in a California case, that when the attorney-client privilege of a
prosecution witness (here a former accomplice turned snitch) conflicts with a criminal defendant’s
constitutional right to confront that witness, the criminal defendant’s Sixth Amendment right of
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confrontation may require piercing the privilege, thereby allowing discovery of a letter the snitch
wrote to his attorney containing a version of events that reportedly differed from the witness’s
testimony.
It is a small step from these general principles to the specific argument that the defendant in a
criminal case is authorized to obtain rap sheet information of witnesses, as part of her due process
rights to reciprocal discovery and a fair trial. First, the prosecution has unrestricted access to the rap
sheet under section 11105(b)(3). Since “the state has no interest in denying the accused access to all
evidence that can throw light on the issues in the case” (Hill v. Superior Court, supra, 10 Cal.3d 812;
see also Brady, supra, 373 U.S. at p. 87; In re Brown, supra, 17 Cal.4th at p. 882), the principles of
reciprocity balanced so carefully in Izazaga require that the defense be provided access to the same
material. The only state interest or privilege opposing this interpretation would be the general
confidentiality of criminal history information. But as Nixon indicates, that general interest must
give way to the specific needs of a criminal defendant. Also, that interest can be fully satisfied,
where necessary, by an order restricting dissemination. (See also Pen. Code § 11142.)
Second, the defense can fashion a Pitchess-style declaration of good cause or materiality for
criminal history information of the defendant and all witnesses in virtually any criminal case. The
right to challenge the bias, credibility, and corrupt motives of prosecution witnesses outweighs any
state interest in restricting access to rap sheet information. (See Davis v. Alaska, supra, 415 U.S.
308; U.S. v. Nixon, supra, 418 U.S. 683.) The defendant also needs her own rap sheet to be fully
prepared for rebuttal evidence if she testifies. It is an essential record of the prosecution’s potential
rebuttal, and arguably should be disclosed even if that were not already required by section
11105(b)(11) and Izazaga. (54 Cal.3d at p. 377.)
Third, the defendant is deprived of her Sixth Amendment rights if counsel is denied access to
information which impairs counsel’s ability to diligently and carefully investigate all defenses to the
case, including impeachment of prosecution witnesses. (See Strickland v. Washington (1984) 466
U.S. 668 [80 L.Ed. 2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; People v. Pope
(1979) 23 Cal.3d 412, 424-425.) “[C]ounsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.” (In re Thomas (2006) 37
Cal.4th 1249, 1258.) Rap sheet information may not always be admissible, per se, but it always
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“sheds light” (Pitchess, supra, 11 Cal.3d at p. 535) on the biases and credibility of witnesses, and
even where not directly admissible, it may lead to discovery of additional admissible evidence.
So defense counsel has a duty to investigate the facts, and the defendant has a broad right to
challenge the credibility and biases of the prosecution witnesses. The prosecution has unfettered and
immediate access to rap sheets on the defendant and all witnesses in the case. Felony convictions are
generally admissible to impeach (Evid. Code § 788), and thanks to Prop. 115 and Article I, section
28(d), (Truth in Evidence) statutory restrictions on admission of non-felony conduct were jettisoned.
(People v. Wheeler (1992) 4 Cal.4th 284, 295.) A statute specifically authorizes disclosure. (Pen.
Code § 11105(b)(8).) What judge could deny that rap sheets fall within the ambit of criminal
discovery, with these factors in mind?
The Statutory Authorization for Disclosure of Criminal History
With a philosophical and constitutional commitment to the right to discovery of rap sheets, it
is time to turn to the specifics. What about the statute? First, it clearly gives a right to the defendant
to obtain a copy of her own rap sheet. (Pen. Code § 11105(b)(11).) But your D.A. may say, “So get
it yourself!” (See the court’s response to this argument in Little, post.) The problems with getting it
yourself are practical, so if you are going to court about it, plan how to make your record. Offer a
stipulation (or call your D.A. to the stand to testify) that as the designated recipient of criminal
history information under section 11105(b)(3), and under the Attorney General’s policies, the D.A.
can get rap sheets instantly by tapping a few keys on the keyboard. In contrast, if the defendant
requests his own record, he must submit a written application, with fingerprints and an application
fee, to the DOJ. (Pen. Code § 11121 et seq.) Then the request is hand-processed, meaning it can take
weeks or months to receive the record. Given the speed of criminal cases in the system, this is not
the ability to “readily obtain” the records which would relieve the D.A. of the burden.
The statute also authorizes the release of witness rap sheets to defense counsel “if authorized”
by statutes or caselaw. (Pen. Code § 11105(b)(8).) Argue that due process and Brady require
disclosure under decisional law. That is an obligation on the prosecutor outside section 1054.1, but
included in the statutory scheme as discovery “mandated by the Constitution of the United States.”
(Pen. Code § 1054(e); Izazaga, supra, 54 Cal.3d at p. 378.) An additional argument is that
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reciprocity requires that the accused have access to records of witnesses if they are available to the
prosecution. (Ibid.; Pen. Code § 11105(b)(3) and (8).)
In addition, the procedures required of defense counsel to seek discovery directly from the
A.G. require approval of the District Attorney and a written application. As discussed above, the
practical solution is to require the D.A. to provide them. The court in People v. Little, supra, 59
Cal.App.4th 426, agreed. In response to a prosecution argument that defense counsel can obtain rap
sheets directly from DOJ under section 11105, the court says:
[I]t is the policy of the Department of Justice to release rap sheets only to prosecutors
(Cal. Dept. of Justice, Div. of Law Enforcement, Information Bulletin No.
92-22-BCID, July 29, 1992; Pipes & Gagen, Cal. Criminal Discovery (1995)
Disclosure by Prosecutor, § 3:39, pp. 162-163), and defense disclosure requests must
go through the prosecutor’s office. Not only does the prosecutor have reasonable
access to rap sheets, he is the assigned doorkeeper. (59 Cal.App.4th at pp. 432-433.)
As a final statutory argument, I suggest pointing out that the charges filed in court and the
records of conviction are public record information. Therefore they cannot be either confidential or
privileged. But the information for each witness is collected in convenient form in the rap sheet and
is easily accessible to the D.A. With no state interest in withholding the information and a showing
that credibility of the witnesses is material to the defense, the D.A. should be ordered to turn over at
least the complete record of convictions and charges filed. Arguably, this information is actually
outside the restrictive scheme in section 11105. (See CBS Broadcasting Inc. v. Superior Court,
supra, 91 Cal.App.4th 892.)
Cases Specific to Rap Sheets
There are also a handful of cases directly addressing the rap sheet question. First, we return to
Hill v. Superior Court, supra, 10 Cal.3d 812, our good discovery case. Defendant Hill sought the
felony convictions and rap sheet of a prosecution witness. The Superior Court denied the motion on
the ground that Hill had made an insufficient showing that such a record existed. The Supreme Court
disagreed: “It is implicit in Cash v. Superior Court, supra, 53 Cal.2d 72, that proof of the existence
of the item sought is not required.... A requirement of such proof would, in many cases, deny the
accused the benefit of relevant and material evidence.” (10 Cal.3d at p. 817.)
The court then considered whether Hill could “readily obtain the information through his
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own efforts.” (Citing Ballard, supra, 64 Cal.2d at p. 167.) We covered the modern version of this
issue above, where the D.A. has instant computerized access, compared to written applications and
manual processing of requests by the defense. As you might expect, the analysis was a bit different
in 1974. The court looked first to the version of section 11105 in effect at that time. The court noted
that public defenders were not authorized to receive rap sheets under the statute. (10 Cal.3d at p. 818
and fn.4.) The court also discussed the A.G.’s argument that the burden “on the bureau could be
immense” if routine production of information to the defense were required. (10 Cal.3d at p. 820.)
Fortunately, technology has made that argument obsolete. SO, balancing these interests, and in the
absence of statutory authority to release information to the defense, Hill required disclosure of felony
convictions, only.
Beside Hill, the two primary cases cited for the position that “the defense can’t get rap
sheets” are People v. Roberts (1992) 2 Cal.4th 271 and People v. Santos (1994) 30 Cal.App.4th 169.
Each simply cites and relies on Hill. Neither mentions the 1975 amendment to section 11105 which
added subdivision (b)(8) and supercedes the analysis of the prior statute used to support the decision
in Hill. In other words, the specific holding on rap sheets in Hill was overruled by statute the next
year, but later cases have failed to take account of the change. Clearly, none of these cases are
binding authority on the scope of the statute, since they fail to discuss it.
On the other hand, Santos did at least recognize that Prop. 115 and People v. Wheeler (1992)
4 Cal.4th 284 required expanding disclosure, even under Hill, to include misdemeanor convictions
with moral turpitude, as well as felonies. (30 Cal.App.4th at pp. 177-179.) Therefore, even the most
hostile D.A. or court should turn over all felony convictions and all misdemeanors with moral
turpitude.
On the more favorable side, People v. Little, supra, 59 Cal.App.4th 426, analyzes the rap
sheet issue under both Penal Code section 1054.1, and section 11105(b)(8). The defense claimed the
prosecution should have disclosed a felony conviction of a witness. The D.A. claimed he did not
know of the conviction and had no duty to look for one. The Court of Appeal held that within the
meaning of Brady and section 1054.1, the D.A. was in constructive possession of rap sheet
information and therefore “knew” it. The D.A. also argued that defense counsel can obtain rap
sheets directly from DOJ under section 11105. The court responded:
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Following Littlefield, even if the defense was able to obtain the rap sheets directly
from the Department of Justice, our conclusion would remain the same. If both sides
had direct access to rap sheets, similar to them both having access to an address book,
the prosecution would still have the duty to inquire of criminal records of material
witnesses whose credibility is likely to be critical to the outcome of the trial. (59
Cal.App.4th at p. 433 fn.2.)
Another helpful case is Mullaud v. Superior Court (1986) 182 Cal.App.3d 471. In Mullaud
as in Little the People argued that the defense could get rap sheets under section 11105(b)(8). The
court cites Davis v. Alaska, supra, 415 U.S. 308, and California cases establishing a right to discover
the requested information. (182 Cal.App.3d at p. 477.) “We affirm the existence of this right and
assume the Department of Justice will provide the information as authorized by Penal Code section
11105, subdivision (b)(8) and by this opinion.” The court puts the burden on the defense to make the
request directly to DOJ, but we’ve already discussed how to avoid that holding.
Finally, we gain another argument for discovery of the rap sheet from People v. Martinez
(2000) 22 Cal.4th 106, 135. In that case the Supreme Court held that the rap sheet (CLETS printout)
was a reliable record, prepared as an official record within the meaning of Evidence Code sections
664 and1280, and therefore admissible as proof of a prior prison term. If the entire printout is
admissible to prove a portion of the contents, certainly the entire document should be disclosed
under section 11105(b)(8) so it can be used as an exhibit at trial! (Of course the reasoning of this
case is totally cockeyed, but we should use it if we can!)
This is far from the definitive treatise on rap sheet discovery, but I hope it will serve as a
basis to seek that to which we are, certainly, entitled.
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ENDNOTES:
i. See also Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S. Ct. 1194; 10 L. Ed. 2d 215]
“Society wins not only when the guilty are convicted but when criminal trials are fair.”
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ii. “In order to provide for fair and speedy trials, discovery in criminal cases shall be
reciprocal in nature, as prescribed by the Legislature or by the People through the initiative
process.”
iii. See In re Brown (1998) 17 Cal.4th 873 for the state court’s history and interpretation of
Brady.
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