Court Clarifies Duties of Police, City Attorneys, District Attorneys for Pitchess Discovery Motions
by William R. Galstan on July 20, 2015
The California Supreme Court has resolved questions that have arisen among police departments, city attorneys and district attorneys about their obligations to respond to criminal discovery requirements under the landmark decisions of Brady v. Maryland and Pitchess v. Superior Court.
The Brady case, generally, requires the prosecution to disclose material evidence that is favorable to the criminal defendant. Pitchess holds that peace officers are entitled to a measure of privacy, and that their personnel records can only be examined and disclosed after the filing of a “Pitchess motion”. The tension between the two cases has led some prosecutors to believe that they have the obligation to review police officer records to fulfill their Brady obligations, or that they must file a Pitchess motion to do so.
In People v. Superior Court (Johnson), published on July 6, the state Supreme Court held that district attorneys have no right to examine police officer records absent a Pitchess motion, and also that they fulfill their Brady obligations if they inform the defense that there may be exculpatory information in an officer’s personnel file and that the defense can file its own Pitchess motion.
Police Department Informs DA of adverse material in officers’ files
When the San Francisco Police Department becomes aware of possible exculpatory material in an officer’s file, on an ongoing basis, it prepares a synopsis identifying the officer, the conduct, and the documents and information for potential disclosure. A departmental committee reviews the synopsis and permits comment from the affected officer. The committee then recommends to the Police Chief whether to disclose the synopsis to the District Attorney in cases where the affected officer will be a material witness. In such cases, the District Attorney’s office then releases the information from the synopsis to the defense, fulfilling its Brady obligation.
The Supreme Court did not require other police departments to follow San Francisco’s example of preparing summaries and forwarding them to the District Attorney, but found the practice “laudable”. The Court also dismissed the defense claim that the District Attorney has an obligation to file a Pitchess motion to fulfill its Brady obligation. Instead, the DA only has to inform the defense of its receipt of the summary from the Police Department, and that the defense may file its own Pitchess motion. However, the district attorney retains the right to file a Pitchess motion if it so wishes. The District Attorney has no right to review confidential police personnel records; the prosecutor must file a Pitchess motion and then receive whatever the court orders discoverable after an in camera hearing which the District Attorney cannot attend.
Custodian may edit material brought to a Pitchess hearing
The Supreme Court noted the burden placed on trial courts when reviewing voluminous personnel records during in camera hearings. It stated that the custodian of records is not required to bring the entire police officer personnel file; he or she is just obligated to bring “all potentially relevant” documents, and irrelevant material such as the officer’s address, medical records, commendations, etc. need not be brought to the hearing. Also, the Court commended the common practice of many custodians of record in assisting the trial judge to find the relevant parts of a personnel file for review.
Lessons to be learned from the case
Clearly, the Supreme Court applauded the San Francisco Police Department procedure of it preparing a synopsis of Brady material and forwarding it to the District Attorney’s office. Where an officer’s conduct may implicate all cases where he or she may be a material witness, such as credibility issues, a police department may consider filing with the DA a blanket disclosure regarding that officer. For other types of exculpatory material, the police department could issue to the District Attorney a synopsis on a case-by-case basis. The decision does not address what would happen if the city fails to disclose material to the District Attorney and the District Attorney simply informs all defendants that there may be Brady material in the officer’s file and that defendant should file a Pitchess motion to find out.
Police departments can also determine whether it would be more efficient for the custodian of records to bring to an in camera hearing only the portion of the personnel records dealing with misconduct. If the custodian brings the entire personnel file, the section dealing with misconduct or discipline should be pointed out to the reviewing trial judge.