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Getting Access to Police Personnel Records to Assist the Defense in Criminal Cases

Usually, the defense in a criminal case is entitled to all evidence that may be helpful to the defense, or within the possession of the prosecutor. See Brady v. Maryland (1963) 373 U.S. 83, 87; Cal. Penal Code § 1054.1. Evidence that a specific police officer may have engaged in misconduct in the past may be helpful to the defense, as former complaints against an officer can show a pattern of dishonesty, fabricating evidence, excessive force, or conduct unbecoming of an officer. If these complaints or witnesses making the complaints can be located, they could be potential impeachment evidence against an officer whose credibility at trial is important. But, the defense is not entitled to merely request such records from the District Attorney, or to subpoena such records from other police agencies.

In fact, personnel records of police officers cannot be provided to the defense unless the defense files a “Pitchess Motion”, named after the case of Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537, which is also provided for under Evidence Code section 1040 et seq, which is a complicated procedure as will be described below.

Criminal Defendants are Entitled to be Provided all Relevant and Material Information that will Assist in the Preparation and Presentation of their Defense

In Pierre C. v. Superior Court (1984) 159 Cal.App.3d 1120, petitioner sought production of citizen complaints against officers “for racial prejudice, false arrest, illegal search and seizure, the fabrication of charges and/or evidence, dishonesty and improper tactics no matter how catalogued by that police department, such as conduct unbecoming an officer, neglect of duty, false arrest and miscellaneous.”  (Id. at 1122.)  The affidavit of petitioner’s attorney in support of the motion “alleged that petitioner would proffer a defense of false arrest; it alleged on information and belief that the officers in question had previously engaged in similar conduct; and it alleged that ‘a material and substantial issue in the trial’ would be the character, habits, customs and credibility of the officers.”  (Id. at 1123.)  The court held that the respondent court was required to hold an in camera hearing to review the records and to determine if they were relevant to the subject matter involved.  (Id. at 1123.)

A more recent case, People v. Gill (1997) 60 Cal.App.4th 743 is illustrative of similar discovery being approved by an appellate court.

“Defendant alleges that the disciplinary records and other information are necessary as character evidence of the officer'(s) tendency to violence in support of his theory of self-defense.  Such evidence is unquestionably relevant and admis­sible under Evidence Code section 1103.”  (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537.)

“Evidence of bigotry or a proclivity of violence on the part of the officer'(s) involved in the alleged assault would be material and relevant to the petitioner’s defense.  Such evidence is admissible where conduct of a victim in conformity with his character would tend to exculpate a defendant or mitigate the offense.”  (Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 696-697; see also Cadena v. Superior Court (1978) 79 Cal.App.3d 212, 221, (“good cause” is demonstrated by general allegations of self-defense.)

Additionally, evidence of bias or dishonest acts on the part of a police officer is also discoverable.  Evidence Code section 780(f) makes it evident that the existence or nonexistence of a bias may be of interest to the trier-of-fact in evaluating the credibility of a witness.  In addition, Evidence Code section 780(d) allows consideration of that witness’ character for honesty or veracity.  (See also Evidence Code section 786.)  The Court of Appeal in Arcelona v. Superior Court (1980) 113 Cal.App.3d 523, recog­nized that upon a sufficient showing, evidence of an officer’s specific character should at least be subject to in camera review.

Names, addresses, and phone numbers of persons making complaints and witnesses interviewed in connection with such complaints are discoverable.  (Pitchess v. Superior Court, supra.)  Reports and investigations of incidents where the complaints were not sustained, even if the officer was “exonerated,” are still discoverable.  (Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829.)  And, of course, the complaints themselves are discoverable.  (People v. Matos (1979) 92 Cal.App.3d 862, 868.)

Statements of officers to internal investigation units or personnel departments are not work product and they are not privileged; they are discoverable.  (Gonzalez v. Municipal Court (1977) 67 Cal.App.3d 111.)  Both statements of the police and statements of citizens are “necessary for effective cross-examination of the officers at trial.”  (Pitchess v. Superior Court, supra.)  The records of previous statements may also be necessary to refresh recollections.  (Id.)

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.  (Hill v. Superior Court (1974) 10 Cal.3d 812; Kelvin L. v. Superior Court, supra.)

The exclusive method for claiming government privilege for types of information requested herein is the procedure outlined in Evidence Code section 1040 et seq. (Pitchess v. Superior Court, supra; People v. Superior Court (McKunes) (1976) 62 Cal.App.3d 853, 856.)  It is the function of the court and counsel to decide the scope of discovery; law enforcement departments do not make that decision.  (Kelvin L. v. Superior Court, supra, 62 Cal.App.3d at 829.)  The procedures outlined under section 1040 et seq are not affected by the passage of Proposition 115.  (Albritton v. Superior Court (1990) 225 Cal.App.3d 961.)  Finally, courts may not restrict discovery if such restriction violates the defendant’s due process rights to a fair trial.  (See, Gonzalez v. Municipal Court (1977) 67 Cal.App.3d 111, 117.)

A Showing of “Good Cause” to Obtain Police Personnel Records can be Made by General Allegations of Information and Belief by the Attorney of the Defendant. 

The qualified governmental privilege enjoyed by police personnel records is codified in Penal Code section 832.7 and 832.8 and Evidence Code sections 1043 through 1045.  (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.)  Evidence Code section 1043 provides that such information may be discovered where a timely motion is filed describing the type of information sought along with affidavits showing “good cause” for discovery. Cal. Evid. Code § 1043.

The California Supreme Court in City of Santa Cruz v. Municipal Court, supra, considered what showing was necessary to constitute “good cause” under Evidence Code section 1043.  It held that the statute does not require personal knowledge of material facts.  (Id. at 89.)  Affidavits based on information and belief are sufficient. (Id.)  Citing the statute’s legislative history, the court noted, “the purpose of discovery is to find detail.  If the petitioner already had the particulars of the record he would not need to use discovery.”  (Id.)

Additionally, the court held that the statute does not require personal knowledge of particular prior complaints.  (Id. at 92.)  The court held that counsel’s statement that the police officers used excessive and unnecessary force against the defendant was sufficient to establish a “reasonable belief” that the same officers may have been accused of using excessive force in the past.  (Id. at 93.)

Moreover, as the California Supreme Court recently held in Warrick v. Superior Court, in order to obtain an in-chambers review a defendant need not demonstrate that the alleged misconduct was plausible, but need only to demonstrate that the scenario of alleged officer misconduct could or might have occurred. ((2005) 35 Cal. 4th 1011).  Therefore, under Warrick, a bench officer cannot deny in-chambers review on the grounds that they do not find the defendant’s version persuasive or believable.

A defendant seeking to establish “good cause” for the purposes of Evidence Code section 1043, subdivision (b)(3), must show “both `”materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.]” (Warrick, supra, 35 Cal.4th at 1016.)

To show materiality, the defense counsel’s affidavit must “propose a defense or defenses to the pending charges,” and “articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses.” (Warrick, supra, 35 Cal.4th at 1024.) The affidavit must further “describe a factual scenario supporting the claimed officer misconduct.” (Id.) “That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.)

New Changes to Motions under Evidence Code section 1040 et. seq. and Pitchess

Under Evidence Code section 1043(a), pertaining to notice requirements regarding motions for police personnel records:

In a criminal action, the written notice shall be served and filed at least 10 court days before the hearing. All papers opposing a motion so noticed shall be filed with the court at least five court days, and all reply papers at least two court days, before the hearing. Proof of service of the notice shall be filed no later than five court days before the hearing.

Cal. Evid. Code § 1043(a)(2).

The motion herein is thus timely under this section as it is served within the ten court day period.THis changes the former, and burdensome, time frame of 16 Court days.

In addition under Evidence Code section 1045(b), the newly effective version has eliminated the prohibition on discovery of relevant information existing more than five years prior to the request of police personnel records, reading:

(b) In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure both of the following:

(1) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(2) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

See Cal. Evidence Code § 1045(b).

Thus, the Court may now discover the requesting party information responsive to its request that otherwise meets the requirements of Evidence Code section 1040 et seq. that are more than five years old, provided such information is not “so remote as to make disclosure of little or no practical benefit”. Id.

Call Honeychurch & Giambona Today if you are Facing Criminal Charges

At Honeychurch & Giambona, we take our duty to protect your constitutional rights extremely seriously and will stop at nothing to fight for the best possible outcome for your case, including litigating the discovery of officer personnel records if could possibly help your case stemming from an arrest in Fairfield, Vacaville, Vallejo, Benicia, Suisun, Rio Vista, Dixon, unincorporated Solano County, or any city in Napa County or Yolo County.

Call us today at 707-429-3111 if you or a loved one is charged with, investigated for, or has been arrested for a crime, for a free consultation as to how we can help you obtain results in your case.


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