On October 13th the Attorney General issued a legal opinion
about the steps prosecutors must take to get Brady material about peace officers. The Attorney General said CHP could give prosecutors a list of its officers
who have been found guilty of dishonesty, moral turpitude, or bias, without a Pitchess motion being filed without violating Pitchess statutes or the Public Safety Officers Procedural Bill of
Rights Act (POBRA).
Under the its proposed “External Brady Policy,” CHP would
create a list of its officers who have been found guilty of dishonesty, moral
turpitude, or bias within the last five years. This list would include the
names of officers and the earliest date of any misconduct. But it would not
describe the misconduct. Prosecutors could search this Brady list for CHP officers who might be called to testify as
witnesses in criminal trials. If a likely witness was on the list, a prosecutor
could then file a Pitchess motion to
view the officer’s personnel records. Also, an officer whose name was put on
the list would be notified and could file an administrative appeal challenging
their inclusion on the list.
The Attorney General noted that several police
departments have adopted similar Brady
policies and the Supreme Court approved one of these policies in Johnson. So CHP would not violate Pitchess statutes by creating and
sharing a Brady list. She also said CHP was part of the prosecution team for Brady purposes, and CHP was qualified to create a Brady list.
Although the Attorney General’s legal opinion is only
advisory and is not binding on local law enforcement agencies, it is has a lot of influence. Officer associations should be aware of their agency’s Brady policy and ensure that the
confidentiality of peace officer personnel records is protected. While Brady lists may be created and shared,
POBRA and Pitchess procedures must
still be followed.
