Discovering an Officer’s Personnel file through a Pitchess Motion


Normally a type of discovery motion is required when a confidential personnel file of a peace officer or custodial officer may contain evidence relevant to the defense. This motion to discover an officer’s personnel file or other police agency record that contains relevant information, such as officers allege prior use of excessive force, ethnic or racial bias, falsifying information or planting evidence is called a “Pitchess Motion” because of the case that created it “Pitchess v. Superior Court”. The Pitchess method of discovery is often used in situations involving where people are in a physical altercation with police officers and a person may feel the officer must have been abusive to others he/she encountered in the course of their duties in the past. It is stilll important to note that the Pitchess motion is not limited to such circumstances.

Pitchess type motions may be lodged when their is a belief that officers have coerced confessions of other defendants besides the current one for example. California Evidence Code sections 1043 through 1046, set out procedures for requesting disclosure of personnel records of peace officers and custodial officers. The pitches procedure only applies to the discoverability of law-enforcement personnel files. The Pitchess motion type procedures also applies to the records of former officers as well as to officers records of officers currently employed by law enforcement agency. Pitchess Motions are unaffected by the reciprocal discovery provisions of proposition 115 because they are based on other express statutory position provisions in Penal Code section 1054(e), Pitchess type discovery is also available and juvenile proceedings pitches motions can and may be made before a preliminary hearing is held but the pendency of that motion does not necessarily constitute good cause for delay in the preliminary hearing over prosecutors objection. Galindo V. Superior Court (2000).

Pitchess Motions require a written motion that counsel must file a written motion that contains these items a notice of motion a supporting affidavit or declaration which permits declarations to be filed in place of affidavits a copy of the police reports setting forth the circumstance of the defendant stop and arrest if the motion alleges excessive force by the author in connection with an arrest and proof of service a sample pitches motion is in California criminal law forms notice of motion.

The notice of motion must include the following evidence could 1043(b) the name of the defendant and the criminal case for which the discovery is sought, the name of the peace officer or custodial officer’s records are sought; a description of the type of record sought; and allegation of a reasonable belief that the government agency identified in the request has a requested records; and the time and place the discovery motion will be heard.

Under the general provisions per principles the prosecutor as a party to the underlying criminal case is entitled the notice of the date time and place the hearing on the Pitchess Motion Hearing but not to argue the substance of the hearing. The Pitchess Motion requires a declaration or affidavit by Counsel seeking the information , which is probably the most important part of the motion that will be litigated. To establish good cause for disclosure the declaration must set forth and state specific facts showing that the record sought are material to the subject matter involved in the pending litigation according the California Evidence section 1043. This materiality element requires a logical link between the pending charge and the proposed defense and articulation of how the requested discovery will support that proposed defense work/ theory.

If the Court finds good cause to look into the officers personnel file based on what has been put forth in the declaration and affidavit, the Court must the hold an in camera hearing to determine whether the request materials are relevant as stated in Evidence Code Section 1040. Good cause is measured by relatively relaxed standard designed to ensure the production review of all potentially relevant documents; the trial court must grant an in camera review hearing of the defendant demonstrates that the scenario of the alleged officer misconduct could or might have occurred. Garcia v. Superior Court (2007). The declaration need not provide a motive for of officer misconduct nor does the scenario need to be corroborated or even necessarily credible or believable, but the scenario must be plausible in the context of the case documents and the asserted defense scenario is plausible when it asserts specific police misconduct that is potentially both internally consistent and supports the proposed defense.

The Court does not assess the persuasive value of the evidence moreover the court does not decide credibility of the officers themselves. Although the affidavit must describe a factual scenario supporting the claimed officer misconduct the scenario depending on the circumstance case, sometimes a of specific facts asserted in the police report may wind up consisting of alternative version of what might have occurred. Common cases where this occurs is when a person claims they did not do anything to cause an officer to use force against them and totally complied with all officer orders and the police officer’s report claims the defendant disobeys ordered causing the officer to have to physically restrain and arrest the subject. Court have used the relatively low threshold for establishing good cause to allow the court hearing. A declaration setting forth facts contradicting officers account of an offense and a police report established the officer’s truthfulness was material to the case in some cases as well. All though Court have held the defense cannot simply say that the police are lying but instead are required to articulate an explanation for the events.

The supporting affidavit or declaration is ordinarily made by defense counsel on information and belief. There is no requirement that there be an affidavit or decoration from the defendant personally or any defense witnesses affidavit may be filed under seal to protect against revelation of privileged information the sealed affidavit he not be served on the police officer who is a subject of the discovery motion or on the city attorney representing after the defense is required to make a showing that the information affidavit is in fact privilege is coming from the client or is core work product. The court is to consider that showing and determine whether the showing is sufficient to establish that the information is privileged. If the information is privileged the court must order that the affidavit be sealed if the court rules that the information is not privileged the court must allow defense counsel to amend to include the privileged information. The Pitchess Motion must be served on a government agency that has custody of the records of motion and must be 16 court days before the date set for the hearing on a motion was personally served other methods of service require additional notice.

Proceedings on a Pitchess Motion in the Court such as a hearing usually means the following people/ parties are present, the Defendant with defense counsel the prosecutor and the representative of the government agency that is actually involved like the City Attorney for the Police. The government prosecutor is not really a party to the motion and therefore is not entitled to argue the prosecutions point of view. If the court finds there was good cause for the discovery of the records it must hold the in camera hearings to determine whether the request intros a relevant evidence code 1040. Both the prosecution and the defense are excluded from in camera hearing only the officer and other persons needed by the Court and Officers to turn over records are allowed in chambers under the in camera procedures. The police and custodial officer personnel records usually sought by Pitchess Motions are confidential according to Penal Code sections 832.7 through 832.8 however it should be noted that is can be seen that an officer usually has no legitimate privacy interest in a sustained citizen complaint(s) of misconduct citizen.

If the court decides that the materials asked for by the defense are relevant it then must go ahead and order the party holding the records to disclose the information. But what is the information sought and what is really going to be disclosed. Courts have generally refused to disclose verbatim reports or records from peace officer personal files, usually ordering instead that the agency reveal only the name address and phone number of any prior complainants and witnesses and the dates of the incidents in question. But If for example the defense shows that a witness can not be found then disclosure of a verbatim report can be required. If the defense finds the witnesses that those witnesses cannot recall what they set the defense is entitled to the verbatim reports to refresh the recollections of the witnesses. If the witnesses refused to talk to the defense the defense is entitled to the verbatim reports because the witnesses are unavailable to the defense.

The following information may not be disclosed according to evidence code 1040, information concerning events that occurred more than five years before the event that is a subject of the current litigation , this of course is subject to a “Brady Rule” exception. Also usually not allowed to be turned over via a “Pitchess Motion” is the conclusions of investigating officers regarding citizen complaints filed against officers whose records are sought; and facts too remote to be a practical benefit. Despite the five-year limitation in the Evidence Code 1040, citizens complaints older than the five years are subject to disclosure as Brady material if the trial court finds them to be material and exculpatory after in chambers review. pen though the prosecution has no duty of disclosure under Brady for records in the hands of third-party agencies not considered part of the prosecution team the court has the power to order the Police Department to make such disclosure because the “Pitchess” procedure is the sole means by which information in confidential police officer files can be obtained.

Evidence code section 1040 does not bar disclosure of citizen complaints made after the date of the defendant’s arrest. On a showing of good cause a defendant is entitled to disclosure of postarrest citizens complaints. Again, results of internal police investigations as disciplinary action are discoverable under pitches while the conclusions of the investigating officer made during such of his conditions are not.

Pitches discovery may include discovery of confidential reports from a civilian police investigation agency established by law enforcement itself or another agencies such as a Civil Service Commissions. The court must order that the records may not be used for any purpose other than underlying court proceeding according to evidence code section 1045 (e). . Other parties to the case, including the prosecutor do not have automatic entitlement to Pitchess materials and the posecutor may obtain Pitchess materials only by complying with Penal Code section 1054.3 or pitches.

In addition, counsel for the agency or the officer may wish to request a protective order to protect officer or agency of unnecessary annoyance embarrassed embarrassment. However when complainant information has been ordered disclosed to counsel who, when later representative defendant succeeds in a pitches and discover the same complaint information relating to as a author counsel must then use the derivative information or may use the derivative information uncovered as part of the earlier investigation Chambers versus Appellate Division (2000)742 California four 673, 681.

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