A defendant seeking post-conviction discovery pursuant to Penal Code section 1054.9 must show a reasonable basis to believe that the items sought exist; however, it need not be shown that the items sought are items that fall within the meaning of Brady v. Maryland (1963) 373 U.S. 83. Defendant, who was sentenced to death sought to obtain at least 60 items or categories of post-conviction discovery under section 1054.9. The court granted review to determine the scope of the statute. The first question considered was whether the defendant seeking discovery has a burden to show entitlement to the materials sought. The court noted the legislative intent behind the statute was to help defendants reconstruct trial counsel files that might get lost or destroyed post-trial, but that the statutory language was broader than that. Even so, the statute was not meant to allow defendants to conduct a fishing expedition, as happened here. In order to avoid this result, the court concluded that when a defendant seeks discovery beyond file reconstruction, he must show a reasonable basis to believe that other specific material actually exists. But, a defendant need not establish materiality before seeing the evidence.
Penal Code section 1054.9 does not extend to materials possessed by out-of-state law enforcement that only provides assistance or information to the prosecution. At the behest of the prosecution, out-of state-law enforcement found and interviewed witnesses who could offer testimony about petitioner’s prior convictions for use at the penalty phase of his trial. Petitioner argued he was entitled to this material. The Supreme Court considered whether the statute should extend to information in the hands of these agencies. The majority concluded that while the agencies did act on behalf of the prosecution “in a limited sense, … they are not part of the ‘prosecution team’.” The court noted that if the prosecution did in fact receive the information petitioner seeks from the out-of-state agencies, then petitioner can seek its discovery directly from the prosecution. And if the prosecution did not receive the information sought, then there is no reason to believe it is readily accessible to them.