Tuesday, July 7, 2015
S.C. Clarifies Prosecutors’ Duties at Intersection of Pitchess, Brady
By KENNETH OFGANG, Staff Writer
Prosecutors, when informed by police that confidential officer personnel files may contain exculpatory information about a defendant, must pass that information along to defense attorneys but need not examine the files themselves, the state Supreme Court ruled yesterday.
In a unanimous decision, the court also held that if prosecutors do want to see the files, they must pursue them in the same manner the defense must—by motion under Evidence Code §1043, which codifies the procedure for obtaining discovery under 1974’s Pitchess v. Superior Court, 11 Cal.3d 531.
Section 1043 and related provisions say that if the moving party establishes good cause for discovery through affidavits, the trial judge must order that the requested documents be produced for examination. If the judge then finds the documents admissible or likely to lead to discovery of admissible evidence, they are turned over to the moving party’s counsel, subject to an appropriate protective order so as to balance the officer’s privacy and due process interests against the interests sought to be served by disclosure.
Yesterday’s ruling reverses the First District Court of Appeal, which held that prosecutors have a unilateral right to examine the files under the “investigations” exception to the Pitchess procedural requirements, and that if they determine the files contain Brady material, they must turn it over to the defense.
The ruling stemmed from the case of Daryl Lee Johnson, charged with domestic violence offenses. Prosecutors filed a motion for discovery of the personnel records of two officers who are witnesses in the case against Johnson.
Attached to the motion, which cited Brady as well as the Pitchess statutes, was a declaration saying the officers were “necessary and essential” witnesses and that the prosecutor believed, based on representations by the San Francisco Police Department, that the officers had engaged in “dishonesty, bias, or…moral turpitude” that would be revealed by examining the files.
The representation was made based on a police directive known as Bureau Order No. 2010-01, which adopts procedures for notifying prosecutors when there is material in an officer’s file that the prosecutor might be obligated to disclose to the defense. The arrangement between the Police Department and the District Attorney’s Office was that prosecutors would make a Brady/Pitchess motion upon receipt of a memorandum from the department under the bureau order.
Upon service of the prosecution’s motion, the defense filed its own motion, citing Brady. Among the relief sought was an order declaring Penal Code §832.7, which limits disclosure of personnel files, unconstitutional so that the prosecutor could examine the materials and make her own decision as to whether she was required to turn them over.
The prosecution agreed that the statutory limitation was unconstitutional and that the prosecutor would have to examine the files and make a judgment regarding disclosure.
Granting review upon petition of both the district attorney and the police, the Supreme Court said the lower courts were wrong.
Justice Ming Chin explained:
“Penal Code section 832.7, subdivision (a), states that police officer personnel records are ‘confidential.’ It permits disclosure by use of the Pitchess procedures but otherwise provides only one exception to the confidentiality requirement — the exception for investigations. This exception indicates that the Legislature considered the range of situations in which prosecutorial need justifies direct access to peace officer personnel records, and it decided that those situations should be limited to ‘investigations or proceedings concerning the conduct of peace officers or custodial officers’…and does not extend to this context.”
“Contrary to the Court of Appeal’s view, the exception for investigations does not apply here.”
Chin said the examination of an officer’s personnel records is not part of an “investigation” within the meaning of the statute, nor is it necessary to give prosecutors routine access to those records in order to protect defendants’ rights. “The Pitchess procedures the Legislature established long ago can protect defendants’ interests without unduly infringing on police officers’ privacy interests,” the jurist wrote.
Chin went on to say that it is acceptable practice for prosecutors to pass along the information they get from police departments, and allow the defense to decide whether to bring a Pitchess motion, rather than forcing prosecutors to bring the motion themselves.
The case is People v. Superior Court (Johnson), 15 S.O.S. 3459.
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