By Timothy E. Warriner
Timothy E. Warriner, B.S., 1989, University of California, Los Angeles (UCLA); J.D., 1993, Santa Clara University School of Law. Mr. Warriner handles trial and appellate matters in state and federal court. He authors two chapters of CEB’s criminal law “bible”-—California Criminal Law: Procedure and Practice. He is a member of the Anthony M. Kennedy American Inn of Court, where he serves as an Attorney Master. Mr. Warriner is a former chair of the Criminal Law Section of the State Bar of California, and now sits as an Advisor to the California Lawyers Association Criminal Law Section. He is certified by the California Board of Legal Specialization of the State Bar of California as a criminal law specialist. His email address is: email@example.com
I have a vivid recollection of the client. He limped into the jail interview room, wincing as he sat on the bench. His face was bruised and swollen. His version of the events stood in stark contrast to the officer’s account in the police report. Similar experiences are shared by most, if not all, seasoned defense attorneys. Defense attorneys have an important duty to investigate in circumstances suggesting law enforcement misconduct. This article addresses the legal means of getting records and information from law enforcement officers’ personnel files.
CONFIDENTIALITY OF PEACE OFFICER RECORDS
The challenge for defense counsel investigating officer misconduct is that the records of law enforcement officers are cloaked in confidentiality. Penal Code section 832.7, subdivision (a), provides that the “personnel records of peace officers and custodial officers . . . or information obtained from these records, are confidential and shall not be disclosed in any criminal . . . proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” These provisions codify the Pitchess decision, which previously governed the release of law enforcement information.
The term “personnel records” includes complaints or investigations of complaints pertaining to the manner in which an officer performs his or her duties. (Pen. Code, § 832.8, subd. (a)(5).) Law enforcement agencies are required to record and investigate citizen complaints. (Pen. Code, § 832.5.) Such complaints must be retained by an agency for at least five years. Complaints deemed frivolous or unfounded are excluded from the personnel file. (Ibid.)
GETTING BRADY INFORMATION
Information in an officer’s personnel file may be deemed Brady information. (Brady v. Maryland (1963) 373 U.S. 83.) Citizen complaints and other material may show bias, patterns of behavior, character and propensity for violence, and dishonesty. So called Brady material is matter that is exculpatory — i.e., tends to show a defendant is not guilty. It includes evidence — such as a finding of dishonesty — that may be used to impeach an officer’s testimony. (Giglio v. United States (19792) 405 U.S. 150, 154-155.)
The prosecution has a duty to disclose Brady material and to investigate whether a law enforcement agency has Brady material. (Kyles v. Whitley (1995) 514 U.S. 419, 437.) However, the prosecution’s Brady obligation and the officer’s right to confidentiality conflict when there is Brady material in an officer’s personnel file. Though a prosecutor has no general right to access police personnel files, the prosecutor may receive a “Brady alert” from a law enforcement agency — i.e., notice that an officer’s file may contain Brady information. The prosecution can then make its own Pitchess motion or provide the “Brady alert” to defense counsel. (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696.)
PRACTICE TIP: Although the prosecutor’s duty under Brady may be deemed self-executing, defense counsel should make both general and specific requests for Brady material. In any case where an officer’s conduct is at issue, counsel should begin investigating the officer by asking colleagues if they know anything about the officer’s conduct or reputation, or by using “list serves” or other electronic means to query other defense attorneys about an officer. This is a legitimate and important first step in investigating a law enforcement officer. Google searches and online legal research may also be effective investigative techniques.
PITCHESS MOTIONS – THE BASICS
The Pitchess process is governed by Evidence Code sections 1043 through 1046. It is a two step process: First, a noticed Pitchess motion is filed; second, if granted, the court conducts an in camera review of the records.
The motion must establish “good cause for the discovery” of the personnel records. Defense counsel should draft a declaration of counsel explaining the relevance of the material to the action, and articulating a “reasonable belief” that the agency has the records. (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.) The declaration does not need to be based on personal knowledge. “Good cause” is considered a low standard, i.e., a plausible factual foundation for alleged officer misconduct plus an explanation for why the information would support a defense or impeach the officer. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) A “Brady alert” is alone sufficient to establish “good cause” for in camera review. (Serrano v. Superior Court (2017) 16 Cal.App.5th 759; see Johnson, supra, 61 Cal.4th 696.)
PRACTICE TIP: Defense counsel does not need a declaration signed by the client to get Pitchess discovery. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 89.) Counsel should take the time to draft a thorough and detailed factual description of the alleged officer misconduct, based upon information and belief. (Ibid.) As investigation for the declaration, counsel should gather information from the client, independent witnesses, as well as other defense attorneys and investigators who have had relevant experience with the officer. A well-drafted declaration of counsel will demonstrate to the court that defense counsel is not engaging in a “fishing expedition,” and that there is a well-founded reason to believe that the officer’s personnel file contains relevant discovery.
Defense counsel must be mindful of the notice provisions applying to Pitchess motions. Evidence Code section 1043, subdivision (a), provides that Pitchess motions must be noticed and filed at least 10 court days prior to the hearing. Oppositions are due 5 court days before the hearing, and replies are due 2 court days before the hearing. It would be wise for defense counsel to consult the applicable local rules to determine whether any apply to the Pitchess process. Remember that the attorney representing the agency will be a civil lawyer, and that in making a Pitchess motion, defense counsel is entering a perhaps unfamiliar “civil realm” of legal practice. Courts can deny a motion if insufficient notice is given, if the motion is improperly served, or if the motion fails to attach the relevant police report.
At the Pitchess hearing, the agency attorney will bring the custodian of records who will have the officer’s personnel records. If the court finds good cause, an in camera hearing is held. Defense counsel is excluded from the in camera hearing. The only persons in attendance are the judge, custodian of records, the agency’s attorney, and the court reporter. (People v. Mooc (2001) 26 Cal.4th 1216.) The court reporter must be present so the court can make a record of what documents were provided to the court and which were reviewed in determining whether disclosure should be ordered. (Ibid.) The making of an adequate record by the court is crucial to appellate review. Because defense counsel is not present, defense counsel must rely upon the court to make an adequate offer of proof concerning non-disclosed materials. Counsel should specifically request that the court make a thorough record of non-disclosed materials, and should consider requesting that copies of the non-disclosed records be sealed and kept in the court’s file. Another alternative would be to request that the court make a written list describing the documents reviewed in camera.
The custodian of records is obligated to bring all “potentially relevant” documents. (Mooc, supra, 26 Cal.4th 1216.) The court may ask the custodian to explain what documents were not provided and why they were deemed irrelevant. Defense counsel should specifically request that this inquiry be made, and the court should be advised of the Mooc requirements.
The end result of a successful Pitchess motion is that defense counsel obtains information needed to investigate the officer misconduct, such as a witness’s name, address, and telephone number. The attorney does not get the actual investigative reports, nor does the attorney get the findings and conclusions of the investigating officer (i.e., the result of any internal agency investigation). (Evid. Code, § 1045, subd. (b)(1)-(3).) If, after investigation, a witness is unavailable or cannot be located, a supplemental Pitchess motion can be filed requesting additional information. As a result of such supplemental motion, a court can order disclosure of actual complaint records. (Alvarez v. Superior Court (2004) 117 Cal. App.4th 1107.)
PRACTICE TIP: It takes time to effectively draft and litigate a Pitchess motion. Therefore, counsel should commence any investigation concerning law enforcement misconduct early in the case, even before trial setting.
The court may bar disclosure of facts or incidents that are remote in time, and complaints concerning conduct occurring more than five years before the event that is the subject of the litigation. (Evid. Code, § 1045, subd. (b)(1).) But the case of City of Los Angeles v. Superior Court (“Brandon”) (2002) 29 Cal.4th 1, 14, provides some relief from this timeline. The court in Brandon held that to comply with Brady, older citizen complaints may be subject to disclosure. In counsel’s briefing, the trial court should be made aware that Brandon allows for the release of older Brady information.
If the court orders the release of information from an officer’s personnel file, defense counsel should expect the agency counsel to request a protective order. The law provides that the court “shall” “order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code, § 1045, subd. (e).) Subdivision (d) provides that the court “may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.” Defense counsel should be prepared to litigate the scope of the protective order, and should ensure that the terms of an order are not ambiguous. Once an order is made, it should be communicated to the defense investigator.
CALIFORNIA PUBLIC RECORDS ACT (CPRA) REQUESTS
The CPRA (Gov. Code, §§ 6250 et seq.) now provides a simple and powerful means for obtaining information about law enforcement officers. In 2018, Senate Bill 1421 was signed by the governor, going into effect on January 1, 2019. The legislative findings emphasize the public’s “right to know,” and state that concealing police misconduct “undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”
Senate Bill 1421 made significant amendments to Penal Code section 832.7. Now, disclosure of the actual records and information relating to specific categories of officer misconduct is required pursuant to a CPRA request — i.e., without a Pitchess motion. Pursuant to the CPRA, a law enforcement agency must disclose: (1) records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer; (2) records relating to the report, investigation, or findings of an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury; (3) records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer sexually assaulted a member of the public; and (4) records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, or destruction, falsifying, or concealing of evidence.
In response to a CPRA request, law enforcement agencies must provide supporting documents such as: investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; materials given to a prosecutor for charging determinations against an officer; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident. In this way the CPRA provides much more than the Pitchess process, the latter only requiring disclosure of the names and contact information of witnesses.
Making a CPRA request to a law enforcement agency is simple. Defense counsel need only draft a letter or email requesting information falling within the categories of Penal Code section 832.7, subdivision (b) (1)(A) to (C) (described above). Counsel must specify the officer to whom the request relates. A badge number should be provided. The requestor may be required to pay for the direct costs of duplication. The agency may redact the records (1) to remove personal data or information, (2) to preserve the anonymity of complainants and witnesses, and (3) to protect confidential medical, financial, or other information.
PRACTICE TIP: Trial counsel should identify, early on, officers playing an important role in an investigation and should submit CPRA requests. Both Pitchess motions and CPRA requests should be made as the Pitchess process may reach information outside of the Penal Code section 832.7 categories. Counsel conducting a post-judgment investigation preparatory to filing a habeas petition should consider making CPRA requests for significant law enforcement witnesses. The failure of trial counsel to obtain impeachment information readily available through a CPRA request may constitute ineffective assistance of counsel.
Conducting an investigation into officer misconduct, and obtaining material to be used by the defense at trial, can be time consuming and challenging. Fortunately, the Pitchess process and the CPRA provide effective avenues of investigation for defense counsel.