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Name: Schaffer v. Superior Court
Case #: B217743
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/23/2010

Penal Code section 1054.1 does not require the prosecution to give retained defense counsel discoverable evidence free of charge. Appellant was represented by retained counsel. The attorney was told there were 70 pages of discoverable phone records that he could have copied at 15 cents per page, or which he could view at the District Attorney’s Office and also bring equipment to copy or digitally scan the records himself. Retained counsel filed a motion to abate discovery costs, and when it was denied, he filed a writ of mandate, arguing the statutory obligation to disclose is only meaningful if the prosecutor provides copies to a defendant. The Court of Appeal noted there is no state or federal constitutional right to discovery. Due process only requires a prosecutor to disclose exculpatory evidence, as evidenced by case law approving “open file” discovery policies. Rather, after Prop. 15, criminal-case discovery is mostly governed by statute. (Pen. Code, sec. 1054, et. seq.) Section 1054.1 says the prosecutor “shall disclose” certain information, but does not specify the means of disclosure. Applying the plain meaning of the word “disclose,” the court found the discovery obligation is fulfilled by making information available for viewing and copying. The court noted even indigent defendants have to pay back some or all of the costs of their defense, if they have the ability to pay. (See Pen. Code, sec. 987.8.) So, it does not offend due process to require non-indigent defendants to pay reasonable fees for copying. But, if a defendant chooses not to pay these fees, the prosecutor must make reasonable accommodations for defendant and his attorney to view discoverable material in a way that protects the attorney-client privilege.