AG: CHP Can Disclose Brady List to Prosecutors

The California Highway Patrol and other law enforcement agencies are allowed to disclose some Brady information about their officers to prosecutors without a Pitchess motion.

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.

California Supreme Court Clarifies Pitchess Process Protects Officer Privacy

On July 6, 2015, the California Supreme Court reversed the Court of Appeal to protect the confidentiality of peace officers' personnel files.  In People v. The Superior Court of San Francisco County, the Supreme Court held District Attorneys offices must file Pitchess motions to review personnel files, ending attempts by some DAs offices to have unfettered access to officers' private information.

Evidence Code section 1043 and 1045 regulate access to peace officers' personnel files in California. The sections make peace officers' personnel files preemptively confidential, but permit parties that have a reason to believe the personnel records contain information material to a case to file what's typically called a Pitchess motion, to gain access to relevant parts of a file.  If party makes a preliminary showing, a judge reviews potentially relevant portions of the file and decides if they are material to the case and must be turned over.

This process applies in criminal cases, but also civil and administrative cases.  In criminal cases, another feature of this process is a prosecutor's duties under Brady v. Maryland.  Under that case, a prosecutor must disclose information that may help a criminal defendant in court.

In San Francisco, the Police Department had a Brady policy that took into account officer privacy and prosecutors' Brady obligations.  Under the policy, the Department had a Brady committee consider potential Brady issues, permitted comment by the affected employee, and made a recommendation to Chief, who decided whether to inform the DA.  The DA then had to file a Pitchess motion to access relevant portions of the officer's file.

But recently, some DAs claimed their Brady duty is so broad that they are entitled to unfettered access to peace officers' personnel files so they can decide what to give criminal defendants.  In this case, the trial court and the Court of Appeal agreed with this conclusion.

The Court of Appeal held prosecutors could access peace officer personnel records without filing a Pitchess motion for two reasons.  First, it concluded disclosing peace officers’ personnel records to the DA did not count as a “disclosure” within the meaning of the statute.  Second, the Court interpreted an exception to the Pitchess process about “investigations” to apply any time a criminal defendant filed a Pitchess motion.  The Supreme Court disagreed with this reasoning.

The Supreme Court noted the Pitchess process balances officers’ privacy with the needs of prosecutors to perform their duties under Brady.  It found the limited exception allowing direct access showed the Legislature did not intend DAs to have direct access under normal circumstances.  Second, Supreme Court disagreed the argument a Pitchess motion triggers a DA’s right to investigate an officer.  The Court defended peace officers noting, “A police officer does not become the target of an investigation merely by being a witness in a criminal case.”  The Supreme Court explained the exception applied, instead, to cases where the DA needs to do a criminal investigation of the officer’s own conduct.

Thus, the Supreme Court held, "the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records."

Supreme Court Grants Review, Stay in Controversial Peace Officer Personnel Records Case

The California Supreme Court granted review and a stay today in the controversial Court of Appeal decision in People v. Superior Court (Johnson). The Court of Appeal ruled prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision delivered a blow to officers' confidentiality interests in their personnel records. The California Supreme Court will decide whether a prosecutor must file a Pitchess motion before accessing peace officer personnel files to search for Brady material that may be subject to disclosure to a criminal defendant.

The Court of Appeal previously considered whether the prosecution is entitled to direct access to peace officer personnel files to search for Brady material. To answer this question, the Court of Appeal considered the interplay between Brady v. Maryland, which requires the prosecution to disclose evidence material to the defense and Pitchess discovery procedures, which hold officer personnel records are confidential absent discovery under Evidence Code section 1043.

The Court of Appeal divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify Brady material subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense.

The Court of Appeal found Section 832.7 does not preclude prosecutors' access to officer personnel files for Brady purposes. The court noted that because police are considered part of the "prosecution team," the two agencies can share confidential information. In coming to this conclusion, the Court of Appeal disagreed with People v. Gutierrez, and its progeny, which held the prosecution could not access officer personnel files absent a motion under section 1043. Gutierrez, following a prior California Supreme Court case City of Los Angeles v. Superior Court (Brandon), found the statutory Pitchess procedures implement Brady rather than undercut it, because a defendant who cannot meet the less stringent Pitchess standard cannot establish Brady materiality. Rather than following this precedent, the Court of Appeal ruled prosecutors may conduct a preliminary inspection of officers' personnel files. But if the prosecutor identifies Brady material, the prosecutor must file a Pitchess motion before disclosing it to the defense.

This case will be very important for law enforcement throughout the state. The Court of Appeal's decision has already been used by public agencies and courts to circumvent the Pitchess process. The California Supreme Court should overturn this misguided decision and restore Pitchess. A favorable Supreme Court decision will protect officers' privacy rights and prevent unnecessary disclosures of confidential personnel information.

Court of Appeal Ruling Requires Prosecutors to Review Confidential Police Personnel Files

On August 11, 2014, the California Court of Appeal held in People v. Superior Court prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision places the burden of identifying Brady information on the prosecutor. In addition, it narrows confidentiality protections for officers' personnel files.

This case delivered a blow to officers' confidentiality interests in their personnel records. In Brady, the U.S. Supreme Court announced a rule requiring the prosecution to disclose evidence that is favorable and 'material' to the defense. Such evidence includes past alleged officer misconduct contained in confidential personnel files. California state law provides protections against disclosure of such information in civil or criminal proceedings by court order. Before disclosure, the court must conduct a private 'in camera' review of the officer's personnel file to determine if the information must be provided to the defense.

Public agencies employing peace officers are generally responsible for reviewing personnel files for possible Brady information relevant to the defense. This case places the burden of review on the prosecution.

The Court divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify information subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense. The Court held Penal Code section 832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. The Court noted that because police are considered part of the "prosecution team," the two agencies can share personnel files without violating personnel file confidentiality laws.

This case has far ranging implications for law enforcement. Unless overturned, prosecutors will be allowed to routinely inspect peace officer's personnel records for Brady purposes and be required to file a Pitchess motion to have Brady material disclosed to the defense. This game changing decision will result in unnecessary disclosures to the prosecution and deprive officers of the ability to challenge. The court decidedly shifted the balancing of interests against officers' privacy rights. Look for this decision to trigger revisions to your local Brady policy. Request to participate in any policy revisions.

Court of Appeal Blocks Criminal's Attempt to Bypass Pitchess

In People v. Davis (Cal. Ct. App., June 12, 2014) 14 Cal. Daily Op. Serv. 6496, an appeals court held a convicted criminal could not bypass the Pitchess process on appeal.  The defendant attempted to get access to a peace officer's personnel file to try to claim the court made a mistake when it did not grant a Pitchess motion before trial.  The court decided he did not have a right to independent appellate review concerning a post-judgment Brady order. 

Instead, the court decided even in cases where a defendant can get discovery after a trial, he must comply with the Pitchess v. Superior Court, procedure and requirements.  The requirements include showing that the discovery sought is material to pending litigation.