Justice Illuminates Criminal Discovery

By Professor Laurie L. Levenson
This book review originally appeared in the Oct. 9, 2015 edition of the Daily Journal.

Who knew that someone could make California discovery law easy to follow? But Justice Brian Hoffstadt has done just that. In his recent book, “California Criminal Discovery” (5th ed., Matthew Bender, 2015), Hoffstadt has provided a comprehensive guide to California’s discovery laws. It is an amazing guide to the statutory and case law obligations of both prosecutors and defense counsel in California.

The book could not have come at a better time. Despite the fact that judges have noted the epidemic of discovery violations in the land, California prosecutors continue to fight against reforming California’s ethical rules to comport with the standards set forth by the American Bar Association in its rules of professional conduct. There is a desperate need for guidance on discovery obligations for both prosecutors and defense lawyers. Hoffstadt seeks to tackle that challenge.



Discovery is a critical stage of the criminal justice process. Without full discovery, a defendant cannot adequately represent himself in court. Similarly, without discovery, prosecutors can also be blindsided. Thus, the rules of discovery are more than just procedural hoops for each side to jump through. They are a crucial step in ensuring that there are just and accurate verdicts in criminal cases. An estimated 75 percent of all exonerations involved failures in the discovery process. Moreover, today’s world requires that lawyers navigate the waters of electronically stored information). From forensic evidence to witness statements, the volume of potential discovery continues to expand. Therefore, keen attention must be paid to discovery obligations.

Hoffstadt appreciates the need for both a comprehensive and easy-to-use guide to California discovery. So many of the disputes in criminal cases are about discovery. Far too many prosecutors have not adopted open-file discovery. The result has been a never-ending stream of cases describing and re-describing discovery obligations. There has also been a steady stream of defendants seeking exoneration because crucial exculpatory and impeachment evidence was not disclosed. In 2014, the California Courts of Appeal and Supreme Court addressed alleged discovery violations in 131 of their published and unpublished opinions.

Thus, Hoffstadt has tackled one of the most neglected areas of criminal practice and he has done so in a superb manner. Beginning with the rights and duties of prosecutors to acquire, preserve and disclose evidence, he analyzes the sea of case law in California and federal courts regarding statutory and constitutional discovery obligations. To ensure easier compliance, he provides straightforward checklists of those obligations. No more excuses, no more confusion. Just do your duty.

Moreover, Hoffstadt has offered sample letters and discovery motions to expedite the discovery process. Although the man is a genius and his Supreme Court clerkship pedigree shows in his organizational and analytical skills, the book is written to make a difference in the actual practice of criminal law. Whether it be pretrial or in post-conviction proceedings, people’s liberty depends on accurate compliance with discovery laws.

Few students in law school learn the intricacies of criminal discovery. Then, when they go into practice, they tend to learn discovery from one side’s perspective only — either prosecution or defense. Of course, therein lies the problem. The law imposes duties on both sides and having that perspective is invaluable.

Finally, discovery obligations overlap with many other areas of criminal practice. To competently meet one’s discovery obligations, a lawyer must understand not only the basic statutory requirements, but also the world of privileges (HIPAA, grand jury transcripts, Classified Information Procedures Act, Privacy Protection Act, Driver’s Privacy Protection Act of 1994, to name a few) and the world of records that might be available for disclosure (from prison records, to consumer records, to substance abuse records, to banking records, to internet service provider records, to name a few). Hoffstadt’s book puts everyone on the same page. Prosecutors, defense counsel and judges can finally work together to ensure accurate and fair verdicts.

It is time for discovery to be seen as more than just an annoying administrative step in criminal proceedings. Given that most cases never make it to trial, it might be the most crucial step in criminal cases. That is why this guide for the perplexed is so important. Using this invaluable resource, lawyers and judges can ensure that criminal cases are a search for the truth and not “gotcha” proceedings determined by distorted records and insufficient facts.