San Mateo Embezzlement – Privatizing Criminal Prosecution to Circumvent the Constitution (CA Penal Code 503)

San Mateo Embezzlement – Privatizing Criminal Prosecution to Circumvent the Constitution (CA Penal Code 503)

Rabin Nabizadeh
June 13, 2017

First District Court of Appeals Judge Martin J. Jenkins.

In a decision that rocks the foundation of the U.S Constitution and will likely have far reaching consequences, the First District Court of Appeals ruled that a private law firm’s investigation and cooperation with the District Attorney does not make the materials used in that investigation subject of mandatory disclosure rules and the principles set forth in Brady v. Maryland.


The Seminal case of Brady v. Maryland dictates that the prosecution must disclose any and all exculpatory materials derived in the course of a criminal investigation.  This includes; evidence which proves defendant’s innocence, reduce his sentence, or would allow for impeachment of any witness.  The rule is means to strengthen the corner stone of our criminal justice system.

People v. Shehayed is a San Mateo Embezzlement case (CA Penal Code 503) involving a CEO accused of using company funds to pay personal obligations.  It is clear that a private law firm was retained by the company and worked closely with the San Mateo Office of the District Attorney to investigate and collect evidence against Mr. Shehayed.  Obviously had the District Attorney collected this evidence, it would be subject to the Brady rule and discoverable by the Defense team.  The question raised in this case is; What are defendant’s Brady rights if the materials available to the District Attorney are gathered by a private party such as a law firm.

San Mateo Judge Joseph Scott agreed with the defendant that any exculpatory materials found by the private law firm in investigating this matter should be handed over to the defense.  However, the court of appeals held that the law firm in question was simply a cooperating witness and that therefore the District Attorney was not obligated to turn over any materials known to the Santa Clara District Attorney and which may be necessary for Mr. Shehayed’s defense.



Government actors are subject to some limitation in investigating a criminal case.  These limitations are meant to guarantee against any misconduct and assure a proper defense.  For example, a statement derived in violation of the rules set forth in Miranda v. Arizona, may be excluded from evidence.  The remedy for an improper search is the exclusion of evidence found in that search.

California penal code section  1054.1 outlines the prosecution’s obligations to disclose relevant materials to the defense.  It states, in relevant parts, that the prosecution MUST disclose:

  • “(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
  • (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.”

However, none of these remedies are available if the bad actor is a private entity.  Statements obtained by Loss Prevention in a petty theft case are not subject to Miranda and are admissible against defendant.  Likewise, the fruits of an illegal search are not subject to Fourth Amendment remedies if these are obtained by loss prevention officers as these actors are not under government control.

While this outcome is somewhat justified with regards to a loss prevention officer, the case before the court presents a different set of legal challenges because, in this case, the private investigators worked closely with the District Attorney and helped form a strategy to prosecute the case.

The first circuit’s ruling opens the door to potential abuses and prosecutorial misconduct.  Could a government agency simply ignore the U.S. constitution by relying on private party investigation of criminal cases?  It appears that the court finds this outcome acceptable.

The core values of our criminal justice system such as the burden of proof, the ability to properly cross examine witnesses and the right to evidence which will be presented against a criminal defendant have been shattered by this decision.  Defendant’s trial lawyer will likely appeal this decision.  It would be interesting to see if the California Supreme court takes on this issue.

Summit Defense Criminal Attorneys is the Bay Area’s premiere exclusively Criminal Defense firm.  With six offices in the bay area, our criminal lawyers have successfully defended hundreds of criminal cases in San Mateo, Santa Clara, Alameda, San Francisco, Marin and Contra Costa counties.

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