Pitchess Motion & the Public Inspection of Police Records

A Pitchess motion is where you as the defendant seek to inspect a law enforcement officer’s personnel record for evidence of police misconduct. Defense attorneys typically bring a Pitchess motion when they suspect officers may have acted improperly, such as by filing a false police report or using excessive force.

California Senate Bill 1421 was signed into law in September 2018. This new law makes a Pitchess motion unnecessary for some types of information requests.

Under SB 1421, four types of police records are now open for public inspection. These records pertain to the situations when:

1. An officer shoots his gun at a person;
2. An officer uses force against another person and the result is death or great bodily injury;
3. There is a prior finding that an officer committed a sexual assault; and,
4. An officer commits a dishonest act (such as perjury or filing a false report).

After Senate Bill 1421, Pitchess motions are still relevant if:

• You seek information from an officer’s personnel file; and,
• That information is not authorized for inspection under SB 1421.

Examples of information you may seek that is not covered within SB 1421 may include:

• Records that show that an officer racially profiled; or,
• Records that show that an officer coerced a confession; or
• Records show other prejudicial acts or the falsification of evidence/testimony.

In accordance with Pitchess motions procedures and standards, a Pitchess motion must include:

1. A description of the type of records or information you seek; and,
2. A showing of “good cause” for the records’ release.

If the judge decides that a Pitchess motion shows “good cause” for disclosing an officer’s personnel records, the judge holds a private “in camera” hearing to decide which records are relevant to the case.

1. When can I gain access to police personnel files?

A strong defense to some criminal accusations is to show that a police officer committed misconduct against you. Some forms of misconduct are when officers:

• Use excessive force,
• Racially profile,
• Coerce confessions,
• Lie in a police report, and
• Plant evidence.

In misconduct cases, police records – in particular an officer’s personnel file – are relevant evidence because they allow you to see if the arresting officer in your case committed some type of misconduct in past cases. A showing of any type of pattern of misconduct would be critical to build an effective defense.

Under California law, you can attempt to obtain information from an officer’s personnel file by either:

1. Requesting this information pursuant to SB 1421; or,
2. Filing a Pitchess motion with the court.¹

2. What has been the effect of Senate Bill 1421?

California Senate Bill 1421 does four important things:

1. Makes certain police records open to public inspection;
2. Specifies what types of “records” are eligible for release;
3. Provides instructions on redacting certain information; and,
4. Prohibits disclosure of information in an officer’s personnel file in other cases.

2.1. Types of records open to public inspection

Under SB 1421, there are four types of personnel records that are open to public inspection. These are:

1. Records relating to an incident, or investigation, involving a police officer shooting his gun at a person;
2. A record relating to an incident, or investigation, involving a police officer using force against a person, and the result is death or great bodily injury;
3. Records relating to an incident in which there was a finding that a police officer engaged in sexual assault; and,
4. Records relating to an incident where there was a finding that an officer acted dishonestly.²

As to the fourth category of records, dishonest acts may include:

• Perjury;
• False statements;
• Filing false reports;
• Destroying evidence;
• Falsifying evidence; and,
• Tampering with evidence.³

2.2. Specific “records’ that may be released

In the four scenarios above, SB 1421 authorizes the public inspection of “records” found in a police officer’s, or other law enforcement officer’s, personnel file.

According to the Senate Bill, “records” include such items and information as:

• Investigative reports;
• Photographic, audio and video evidence;
• Transcripts or recordings of interviews;
• Autopsy reports;
• Documents setting forth findings or recommended findings; and,
• Copies of disciplinary records.⁴

2.3. Redacting of information

Senate Bill 1421 states that when authorized records are open for inspection, some information must get redacted, or edited, to protect the identity of certain parties and witnesses.

The information that gets redacted includes:

• Personal information (for example, addresses, telephone numbers, and names of family members);
• Confidential medical or financial information;
• Information prohibited by federal law;
• Information the disclosure of which would create a danger to an officer’s safety; and,
• Information where the public interest served by not disclosing it outweighs the public interest served by disclosing it.⁵

2.4. Disclosure of other records prohibited

Senate Bill 1421 does not provide for the full disclosure of all records within an officer’s personnel file. Public inspection is only available for the four types of records specifically listed in the bill (please see 2.1 above).

The disclosure of any other information from a personnel file is prohibited under the new law, unless allowed under Section 1043 of the Evidence Code.⁶

California Evidence Code 1043 EC applies to information contained within an officer’s personnel file. EC 1043 states that this information is privileged, and thus not obtainable, unless you file – and are successful in bringing – a Pitchess motion.

This means Pitchess motions are still relevant under California law; and, they must get filed to obtain records not authorized under SB 1421.

3. How do you file a Pitchess motion?

California Evidence Code sections 1043 and 1045 outline the process for filing a Pitchess motion. The process includes three important elements:

1. Procedural steps for filing the written motion;
2. A showing of “good cause;” and,
3. An “in camera” hearing.

3.1. Procedural steps

You file a Pitchess motion before the beginning of your criminal jury trial, typically before the preliminary hearing. It must be in writing.⁷

Under Evidence Code 1043 EC, a Pitchess motion must include:

1. Identification of the criminal court case, you, the officer(s) whose records are being sought, and the governmental agency that has custody of the records;
2. A description of the type of records that are being sought;
3. Proof that you have notified the agency that holds the records of the motion and proof of service; and,
4. An affidavit showing “good cause” for the disclosure of the records (this is often written and signed by your criminal defense attorney).⁸

3.2. Showing of “good cause”

A showing of “good cause” exists if the affidavit sets forth both:

1. A specific factual scenario that supports allegations of officer misconduct in your case; and,
2. Reasons why the misconduct would be material to your defense.⁹

Example: Wendell is arrested after an undercover officer claims that Wendell tried to purchase drugs from him. Wendell files a Pitchess motion, and his “good cause” affidavit asserts that Wendell never tried to buy drugs from the officer, and the officer was simply lying.

The affidavit also explains that any information in the officer’s personnel record that would establish a history of dishonesty and filing false reports would be relevant information for Wendell’s case. The court decides that this affidavit is sufficient to show “good cause” for disclosure of the records under Evidence Code 1043 EC.²⁵

For police misconduct to have “materiality” to the pending litigation, there must be:

1. A link between the criminal charges in the case and the defense; and,
2. A showing why the requested information would make a difference to the defense.¹⁰

3.3. “In camera” hearings

If the above procedural requirements are meant, and good cause is shown, then a Pitchess motion moves onto an “in camera” hearing conducted by a judge.

“In camera” means that the hearing is private rather than in open court. The only people that usually attend are:

• The officer whose records are being sought; and,
• Any other people the officer is willing to have present (usually the custodian of records for the police department).¹¹

During the in camera review hearing, the trial court judge evaluates whether or not the information in the officer’s personnel files is relevant to your defense. Only information that the judge determines is relevant will be disclosed to you. The judge does not serve as a trier of fact and consequently does not decide credibility or weigh the evidence.¹²

Records that cannot be disclosed

There are certain types of information that the judge cannot disclose to you (unless the information is exculpatory, which means suggesting that you are innocent). Records that are off-limits include:

1. Information about complaints against the officer(s) that occurred more than five (5) years before the alleged police misconduct in your case,
2. The personal conclusions (as opposed to the disciplinary action) of any other officer investigating a citizen’s complaint against the officer(s), and
3. Facts that are so remote that disclosing them would have little or no practical benefit.¹³

Recipients of Pitchess materials may not reveal them for other purposes than the case at hand. If there is good cause, the court may issue a protective order to keep the information secret.¹⁴

4. What are the possible outcomes of a Pitchess motion?

There are two possible outcomes to a Pitchess motion. These are that the motion is:

1. Granted, and information is disclosed; or,
2. Denied, and information is not disclosed.¹⁵

4.1. Motion granted

If a court grants a Pitchess motion, and the judge finds records relevant to your defense, the records are not typically turned over. Rather, the judge provides you the name and contact information of anyone that previously filed a complaint against the officer.¹⁶

Your attorney then contacts those persons to interview them about the facts and can present them as possible witnesses. However, if the parties are unavailable or not findable, then you can obtain the actual records of an earlier complaint.¹⁷

If the judge orders disclosure of the officer’s personnel records, but the agency that keeps the records refuses to comply with the court’s orders, then the state must dismiss the charges against you.¹⁸

4.2. Motion denied and information not disclosed

If a court denies a Pitchess motion, and you are then convicted of the charges against you, you can appeal the conviction.

In the appeal, you would argue, in part, that your Pitchess motion should not have been denied because you showed “good cause” to gain access to the officer’s personnel file. The appellate court would then determine whether denying the Pitchess motion was an “abuse of discretion.”

If the lower court never conducted an in-camera review on the Pitchess motion, the appellate court can opt to “remand” the case so the lower court can conduct the in-camera hearing. Only when the lower court conducts an in-camera review – and then denies the motion – can an appellate court then reverse the denial.¹⁹

5. Why is it called a Pitchess motion?

Pitchess motions are named after the 1974 California Supreme Court case of Pitchess v. Superior Court (1974) 11 Cal. 3d 531.

6. What is a Brady letter?

Prosecutors and police officers may keep a Brady letter (also referred to as a Brady list), which is a list of the names of police with criminal convictions or with past incidents of lying.

Officers placed on a Brady List risk termination or demotion. If they testify in trial, the defense could impeach their credibility.

Additional resources

For more in-depth information, refer to these scholarly articles:

• Pitchess v. Brady: The Need for Legislative Reform of California’s Confidentiality Protection for Peace-Officer Personnel Information – McGeorge Law Review.
• Reconciling Brady and Pitchess: Association for Los Angeles Deputy Sheriffs v. Superior Court, and the Future of Brady Lists – San Diego Law Review.
• Good Cop, Bad Cop – Anyone’s Guess: A Review of the Pitchess Motion for Criminal Discovery in the State of California – Whittier Law Review.
• Reevaluating California’s Pitchess Process in Light of the Police Officer Misconduct Problem – Available at SSRN.
• Constructing a Better Estimate of Police Misconduct – PolicyMatters Journal.

Legal References:

HOW TO WIN A PITCHESS MOTION — A PREMIER CRIMINAL DEFENSE ATTORNEY EXPLAINS

Police misconduct can greatly influence what happens in a criminal case. Learn how the best criminal defense attorneys use Pitchess Motions to obtain information about improper police activity.

HOW TO WIN A PITCHESS MOTION

Getting a Pitchess Motion granted by the judge requires your attorney to understand the law and know how to use evidence to support the motion. Award-winning criminal law attorney Aaron Spolin generally fights Pitchess Motions by taking these steps: (1) utilize specific facts to allege officer misconduct and (2) articulate a logical link between the misconduct and the defense we will use.

Prosecutors might keep a “Brady List,” which is a list of the names of police with criminal convictions or past incidents of lying.

Former Prosecutor Aaron Spolin Explains How to Win a Pitchess Motion

1. Utilize Specific Facts: The best way to win a Pitchess Motion is with specific facts gathered from an independent investigation and through the discovery process. The Pitchess Motion must allege officer misconduct by providing a specific factual scenario establishing a plausible fact-based need for the records. Further, a judge is more likely to grant a Pitchess Motion if the request is narrowly tailored to the potential misconduct or impropriety.
2. Articulate a Logical Link Between the Misconduct and the Defenses: It is not enough to simply state that we believe the evidence would be helpful to your defense. We must articulate a logical link between the misconduct and the defenses we will use.

For example, if we claim that an officer used excessive force when arresting a defendant who is charged with resisting arrest, we should include the police report as an exhibit to the motion to show that there was an altercation during the arrest. We would not seek records of an officer’s sexual harassment since it has nothing to do with the defense. Instead, we would narrowly tailor the request to obtain evidence of similar past wrongdoings by the officer.

Another example may be where a defendant claims that an officer falsified information or planted evidence. A declaration should be filed with the motion stating exactly what the officer did or what evidence was planted. Allegations under oath that a detective fabricated evidence may rise to the level of misconduct to gain access to the personnel file where the credibility of the officer becomes an important question.

A Pitchess Motion should be filed if there is any indication that an officer acted improperly.

WHAT IS A PITCHESS MOTION?

A Pitchess Motion is a legal document requesting the court to allow the defense to inspect a law enforcement officer’s personnel file for evidence of police misconduct. These motions are typically brought during the pre-trial phase when the defense suspects that an officer may have acted improperly.

In the Pitchess Motion process, California is balancing two interests:

1. Protecting the privacy of its employees and maintaining secrecy of government information
2. Complying with mandates of due process and allowing access to records with good cause

Due Process Gives You a Right to This Information

The Constitutional right to due process requires that the prosecution provide the defendant with discovery. Under a court ruling in the case Brady v. Maryland, 373 U.S. 83 (1963), the prosecution must disclose any favorable evidence related to guilt. Discovery includes any evidence related to the case, whether or not the prosecution would ultimately use it for trial.

Some examples of evidence that must be provided to the defendant through the informal discovery process include the following:

• Physical evidence obtained in the investigation
• Names, addresses, and telephone numbers of witnesses
• Written and/or oral statements made by the defendant and any codefendants

Format of Pitchess Motion

A Pitchess Motion must include the following information:

• The time and place the motion will be heard
• The officer’s name
• A description of the information sought
• A statement based on reasonable belief that the government has the records or information sought
• An affidavit or declaration showing materiality
• An affidavit or declaration showing good cause for the disclosure

Good Cause and Materiality

In order to show good cause and materiality, the Pitchess Motion must make a valid claim justifying the discovery of the records being requested. The motion must have a declaration that explains which defense theory will be used and how that theory is tied to the specific facts from the case. It must be shown that the records being sought will aid in this defense.

However, it is important to note that a defendant is not required to disclose their defense strategy to the prosecutor. Thus, these documents can be filed under seal to protect the defendant from disclosing too much to the other side.

What Kind of Evidence Can a Pitchess Motion Be Used For?

Some police records are openly available to the public under California Senate Bill 1421 and do not need to be obtained through Pitchess Motion. For example, an officer’s use of force resulted in great bodily injury or death must be disclosed if requested through the informal discovery process. Also, evidence of dishonest acts by a police officer, such as perjury, must be disclosed. Other records that must be disclosed include when an officer shoots their gun at a person and if there is a prior finding that an officer committed a sexual assault. However, there are narrow exceptions in the records that are available to the public.

Other types of records are protected and cannot be obtained by simply requesting a copy from the police agency. A defendant must file a Pitchess Motion to gain access to other records that might be useful in their defense. Examples include prior complaints and records showing the following:

• Use of excessive force
• Fabricating probable cause
• Racial profiling
• Unlawful traffic stops
• Planting or tampering with evidence
• Sexual harassment
• Coercing confessions

Those records may be contained in investigative reports, photographs, audio and video files, transcripts of interviews, autopsy reports, disciplinary records, and other documents setting forth or recommending findings.

PROCESS FOR BRINGING A PITCHESS MOTION

A Pitchess Motion can be brought at any time after a person is charged with a crime, but before trial. It is a pre-trial motion. There is no set time limit for bringing a Pitchess Motion. However, it should be filed as soon as possible in order to give the defendant enough time to litigate the motion and conduct an adequate investigation if the motion is granted and evidence is obtained. It can even be filed before the preliminary hearing.

What Happens If the Motion Is Granted?

If the court decides the Pitchess Motion meets the requirements, it will grant the motion. If granted, the judge will review the records in private in what is called an in-camera hearing. That means the judge will review the records in their chambers with a representative from the police department, but without the defense attorney or District Attorney. If the judge finds anything relevant, it will then be revealed to the defendant.

Further, if the judge finds that some records are relevant, the judge does not turn over actual records to the defense. Instead, the judge will provide the defendant’s attorney with the names and contact information of potential witnesses, including anyone who has made complaints against an officer. This will allow the attorney to contact those people and gather information.

What Happens If the Pitchess Motion is Denied?

All is not lost if the court denies your Pitchess Motion. If the motion was litigated in a California Superior Court, the issue is then preserved for an appeal. You can request that the Court of Appeal review the Superior Court’s actions and decision in deciding the Pitchess Motion. The Court of Appeal reviews a Superior Court’s denial of the motion for an abuse of discretion.

There are several ways to attack an appeal. Your attorney can argue that the Superior Court abused its discretion by denying the motion and withholding records. Also, the Superior Court’s procedures can be challenged. The Court of Appeal will determine if proper procedures were followed, such as whether the court held a hearing on the motion or improperly denied it without an in camera hearing.

HOW A LAWYER MAKES A DIFFERENCE

Police misconduct can result in evidence that is ultimately used against the defendant to get an unfair outcome. source

PITCHESS MOTIONS IN CALIFORNIA

One widespread defense strategy a good attorney might employ when you’re charged with a crime is to seek to discredit the testimony of the law enforcement officer who arrested you.  This is an especially relevant strategy when the officer is suspected of misconduct, such as using excessive force or filing a false report.

Simply put, a Pitchess motion is a defendant’s request to inspect a law enforcement officer’s personnel file for evidence of misconduct, often part of the pretrial process when they believe the police officer acted improperly.

California Senate Bill 1421 was signed into law in 2018, making a Pitchess motion unnecessary for some types of requests for information because they are open for public inspection.

These open public records include situations when police shoot their weapon at someone, use force that results in great bodily injury or death, a finding they committed a sexual assault, or a dishonest act, such as perjury.

However, Pitchess motions are still necessary if the defendant wants information from an officer’s personnel file and the information was not authorized for inspection under SB 1421.

Some examples of information a defendant typically seeks include records where the officer used racial profiling, prejudicial acts, coerced confessions, or falsifying testimony or evidence. A Pitchess motion must describe the type of records or information they seek and show “good cause” to release the records.

Suppose a judge decides that a Pitchess motion shows “good cause” for disclosing a police officer’s personnel records. In that case, the judge holds a private “in-camera” hearing to determine whether the records are relevant to the case.

One of the most effective tools in implementing this strategy is for your attorney to file a Pitchess motion, a specialized discovery motion in California law where the defendant requests access to the law enforcement officer’s personnel records.

WHAT IS THE ORIGIN OF A PITCHESS MOTION?

The Pitchess motion originated from the landmark California case, Pitchess v. Superior Court, in 1974. In this case, Sheriff Peter J. Pitchess challenged the defendant’s request for complaints filed against the deputies involved in his arrest.

The California Supreme Court ruled in favor of the defendant, holding that defendants have a right to access a law enforcement officer’s personnel records for information that might impugn the officer’s credibility or demonstrate their propensity for violence.

WHEN AND WHY IS THIS MOTION USED?

As noted, the primary purpose of a Pitchess motion is to uncover potential material that can be used to challenge or impeach the credibility of a police officer, especially in cases where the officer’s conduct is directly relevant to the topic at hand.

This is typically based on their past misconduct. For instance, if a defendant alleges that an officer used excessive force or fabricated evidence, a Pitchess motion can be instrumental in obtaining records that may support these claims.

This motion is particularly significant in the context of police misconduct records because it provides a legal avenue for accessing information that is typically considered privileged and confidential.

This includes details about an officer’s history of misconduct complaints, disciplinary actions, and other relevant behavioral patterns. Such information can be crucial in shaping the defense strategy and potentially influencing the trial’s outcome.

WHAT ARE THE CHANGES IN THE LAW?

As noted, as of 2018, Senate Bill 1421 has implemented essential changes in the law that make certain police records available to the public without the need to file a Pitchess motion. The main provisions of SB 1421 apply to records related to:

• Officer-Involved Shootings and Use of Force: Records relating to incidents where police fired a weapon at someone or when the officer’s use of force resulted in death or great bodily injury are now available to the public.
• Sexual Assault: Records involving sustained findings of sexual assault committed by on-duty law enforcement officers against members of the public are available under this law.
• Dishonesty Related to Criminal Investigations: The law also allows access to records where an officer was found dishonest in reporting, investigating, or prosecuting a crime. This includes perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.

While SB 1421 broadens access to certain types of law enforcement records, it doesn’t eliminate the need for Pitchess motions.

Examples of police record information not covered by SB 1421 may include incidents involving racism or racial profiling, coerced confessions, etc. If a certain file or piece of information is unavailable under SB 1421, your attorney may still have to file a Pitchess motion to obtain access. Under SB 14 21, records can include the following:

• Pictures;
• Video and audio evidence;
• Transcripts of any interviews;
• Recording of any interviews;
• Investigation reports;
• Disciplinary records;
• Documents of recommended findings;
• Autopsy reports.

Notably, when authorized records are open for inspection, some information must be redacted or edited to protect certain people, such as witnesses. The information that is usually redacted includes the following:

• Personal info, such as addresses, phone numbers, and names of family members;
• Any information that would place the officer’s safety at risk;
• Any information where the public interest is not served;
• Medical or financial information.

WHAT HAPPENS WHEN A PITCHESS MOTION IS FILED?

A successful Pitchess motion must go through a particular series of steps, as discussed below.

Filing the Motion

The attorney must include the following essential information when filing a Pitchess motion:

• Identifying information (i.e., defendant, court case, officer in question, agency holding the records, etc.);
• A description of the specific records being requested;
• Proof that the relevant agencies have been given notice that the records are needed; and
• Proof of good cause as to why the records are needed. (A judge will NOT grant a Pitchess motion unless good cause is established.)

In-Camera Hearing

Suppose the attorney has presented the motion correctly and proven good cause. In that case, the judge will hold an in-camera hearing (meaning “in private”) with only the police officer in question and anyone the officer wishes to be present.

During this hearing, the judge will review police files to determine which information is relevant to the case. Only information that the judge determines is relevant will be disclosed to the defendant. Off-limits records include the following:

• Complaints against the officer occurring more than five years before the alleged police misconduct;
• Personal conclusions of any other officer investigating a citizen complaint against the officer, and
• Information so insignificant that disclosing it would have little or no practical benefit to the case.

Notably, any Pitchess materials can’t be disclosed for purposes other than the case in question, and the judge could issue a protective order to keep the information private if there is a good cause.

GRANTING OR DENYING THE MOTION

After the in-camera hearing, the Judge will rule whether to grant or deny the Pitchess motion.

If the motion is denied: None of the police records requested will be released. If the motion is granted, remember that the requested files will still not be released to the defense in most cases outright.

Instead, the Judge will provide the name and contact information of the people who filed previous complaints against the officer that generated those files, and your attorney may then interview them to get their testimony. Only if those witnesses are not available to testify will the actual records be released.

If the Pitchess motion is granted and the agency in question refuses to release the officer’s personnel records, the charges will be automatically dismissed.

Prosecutors might keep a “Brady List,” which is a list of the names of police with criminal convictions or past incidents of lying. 

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Pitchess Motions

A Pitchess motion (from Pitchess v Superior Court, 11 C3d 531 (1974)) is a special type of motion for discovery that requests information from a police officer’s confidential employment file. The need for this motion usually arises when the defendant alleges police misconduct. The type of information generally sought after with the Pitchess motion includes personnel records which show prejudicial acts, falsifying evidence and/or testimony, and the use of excessive force while on the job. To be successful on this motion, defense counsel must be able to establish that this information will pertain to some aspect of the defense.

Based on the Pitchess case, California Evidence Code sections 1043 to 1046 provide avenues to obtain some of the information which is sought by a Pitchess motion. Under these provisions, when defense counsel seeks to obtain officer personnel records they must file a written motion with the court. The written motion must be accompanied by other documents to be valid such as: a notice of the motion, a declaration or affidavit, police report copies detailing the detention and arrest of the defendant, and the proof of service.

The most detailed part of filing a Pitchess motion is the affidavit. Under California Evidence Code section 1043(b)(3), the affidavit must be based on “good cause” by demonstrating sufficient facts which show why such information is necessary and relevant to the issues in the defense’s case. The relevance between the information sought and the specific defense theory must have a strong link to prove such information will be material, and thus establish good cause. The court will determine whether good cause exists at a hearing where the agency holding the record, the district attorney, and the defendant and his/her attorney discuss the matter.

Under California Evidence Code sec. 1045, once the court is satisfied that good cause exists, it must then look at the evidence sought and determine whether it is indeed relevant to the defense’s case.

The court’s analysis is done through an “in camera” hearing, meaning that it is conducted outside of the presence of the jury and counsel. This hearing must be held by the court if the defendant shows that it was possible that the officer engaged is some sort of misconduct. Usually facts are alleged by the defense which shows how officer misconduct could’ve occurred. The defense may establish this by merely providing a different recitation of the factual circumstances, or may deny the facts as presented in the report by law enforcement. Garcia v Superior Court, 42 C4th 63, 72. In this examination, the court does not act as the trier of fact and thus will not determine credibility[1] or weigh evidence. [2]

Where the judge agrees with the defense that the information is relevant, an order is issued to disclose the information. Generally, the court will only mandate the disclosure of the names and contact information for witnesses involved in previous events with the officer. However, there are ways for the defense to get the actual reports of the incidents under certain circumstances, i.e. the witness is not available, the witness doesn’t remember, or refuses to discuss the incident.

Certain information is precluded from disclosure in a Pitchess motion. This includes events that happened too remotely in time, or the conclusions noted by internal affairs officers during the police investigation. Yet some of this information may still be available to the defense if it can show it relates to exculpatory information as provided by the Brady case.[3] Other information that is not disclosable is the personal information of the officer such as his/her place of residence.Hackett v Superior Court, 13 C4th 96 (1993).

Under a central case dealing with Pitchess motions, Alford v Superior Court, 29 C4th 1033 (2003), the court is required to order the recipient of Pitchess materials to not disclose them for any other purpose. Additionally, Alford holds that the district attorney will not automatically get access to the Pitchess documents. Protective orders may be issued to ensure the continued secrecy of the information involved. However, a protective order will only be issued if there is good cause to support it.

California Evidence code 1040(b) generally allows the government (i.e. law enforcement) to exercise a privilege over confidential information for which disclosure is against the public interest. Normally, to achieve the disclosure of such information, one needs to show that the interest to the public outweighs the agency’s need for disclosure. The use of a Pitchess motion can sometimes obtain access to the information even if the privilege is found valid. A law enforcement agency can be subject to discovery sanctions if it does not turn over the information in favor of continuing a claim to privilege. The situation can lead to a dismissal of the prosecution’s criminal complaint where there is no valid claim to privilege and the agency still refuses to provide the info requested.[4]

Whenever the prosecution appeals the allowance of a Pitchess motion, the appellate court will look to see if an abuse of discretion occurred. If the previous court denied the motion without conducting its in camera review, the appellate court can choose to remand the case and require the in camera hearing.[5] A reversal of the denial will only occur where the court has in fact done an in camera hearing and subsequently denied the motion.[6]

Pitchess motions can be used in DUI cases where a defendant believes the officer engaged in some sort of misconduct during the DUI investigation. This often occurs where there was some type of undue aggressiveness by police. A defense attorney will use the Pitchess motion process described above to obtain information about the officer’s past misconduct and inclination to treat suspects in an abusive manner. The Pitchess information can also be used to show past prejudicial acts by the officer, or a pattern of falsifying evidence. If you believe any of these situations occurred in your case, it is important to inform your criminal defense attorney to determine if a Pitchess motion will help your defense.

[1] Warrick v Superior Court, 35 C4th 1011 (2005)
[2] People v Gaines, 46 C4th 172 (2009)
[3] City of Los Angeles v Superior Court, 29 C4th 1 (2002)
[4] Dell M v Superior Court 70 CA3d 782.
[5] People v Gaines 46 C4th 172.
[6] People v Memro 38 C3d 658

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Discovery And Police Officers: The Pitchess Process

Discovery relating to a peace officer’s job performance or disciplinary actions must follow a unique, statutory process

Under California law, certain information related to peace officers enjoys a conditional privilege. This limited privilege is held by both the peace officer and the agency. (Michael v. Gates (1995) 38 Cal.App.4th 737, 744.) So whether you are representing an officer in a personal-injury or employment matter, or suing a law enforcement agency for battery or other civil-rights’ violations, you need to understand what information is privileged and how to get the information you need – or how to protect your client’s right to privacy

To obtain information from officer personnel records, complaint investigations, or disciplinary action against a peace officer, a party must follow a unique, statutory discovery method. Although this discovery vehicle is generally codified at Evidence Code sections 1043 et seq., it is often referred to as Pitchess, for the landmark California Supreme Court case Pitchess v. Superior Court (Echeveria) (1979) 11 Cal.3d 531. This article discusses the development of the Pitchess process and describes what kind of information is conditionally privileged. The article concludes by offering guidance through the Pitchess-motion procedure, which generally consists of a noticed motion setting forth, by counsel’s affidavit, good cause for the court to conduct an in camera review to determine which records are relevant and to be produced.

The development of the Pitchess process

In 1974, the Legislature adopted Penal Code section 832.5.This section requires law-enforcement agencies to establish a procedure for investigating citizen complaints against peace officers. Section 832.5 also requires the agencies to retain records of the original complaint and investigation for at least five years.

That same year, the California Supreme Court decided Pitchess. Cesar Echeveria was charged with battery of certain deputy sheriffs. Echeveria claimed that he acted in self-defense in response to excessive force by the deputies. As part of his defense, Echeveria sought investigations of citizen complaints of excessive force against those same officers. The Pitchess Court permitted Echeveria to obtain the investigations over Sheriff Pitchess’s objections. (Pitchess, supra, 11 Cal.3d at 534.)

The Pitchess decision rocked the law-enforcement world, and record shredding and discovery abuses allegedly followed. (See San Francisco Police Officers’ Assn. v. Sup. Ct. (City & Cty. of San Francisco) (1988) 202 Cal.App.3d 183, 189.) To curtail these practices, the Legislature enacted changes to the statutory scheme to balance the right to privacy of the peace officer and the employing agency with the interest of justice. (See City of Azusa v. Sup. Ct. (Madrigal) (1987) 191 Cal.App.3d 693, 696-97.) In 1978, Penal Code section 832.5 was amended at the same time Penal Code sections 832.7, 832.8 and Evidence Code section 1043 were added by Senate Bill No. 1436. With these amendments, the Legislature attempted to protect a party’s right to a fair trial and the officer’s privacy interest. (People v. Mooc (2001) 26 Cal.4th 1216, 1227.)

Evidence Code section 1043(a) sets forth the initial Pitchess procedure:

In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.

Case law has refined the parameters of this process. Notably, a Pitchess motion trumps general discovery rules in both the civil and criminal context. (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 400; see also, People v. Sup. Ct. (Gremminger) (1997) 58 Cal.App.4th 397, 403 [statutory Pitchess scheme takes precedence over discovery procedures in the Code of Civil Procedure]; Fagan v. Sup. Ct. (People) (2003) 111 Cal.App.4th 607, 310 [prosecutor must comply with Pitchess process to disclose Pitchess information of retired peace officer defendant].) So, information protected by the Pitchess privilege is not discoverable under Civil Discovery Act inspection demands. (See Cty. of Los Angeles v. Sup. Ct. (Uhley) (1990) 219 Cal.App.3d 1605, 1609; but cf. Dominguez v. Sup. Ct. (City of San Gabriel) (1980) 101 Cal.App.3d 6, 11 [finding that the City’s rights under Evidence Code sections 1043 et seq. were not impaired irrespective of how plaintiff’s motion to compel was entitled].)

In fact, the agency with custody or control of the records has no obligation to respond to a Code of Civil Procedure section 2031 request for production of Pitchess information. Moreover, the failure to respond to such a request does not waive any Pitchess objections the agency may have. (Uhley, supra, 219 Cal.App.3d at 1611.) Nor may Pitchess information be disclosed pursuant to a California Public Records Act request. (Hemet v. Sup. Ct. (Press-Enterprise Co.) (1995) 37 Cal.App.4th 1411, 1422; Cty. of Los Angeles v. Sup. Ct. (Kusar) (1993) 18 Cal.App.4th 588, 600.) The privilege applies to both pre-trial discovery and live testimony. (Fletcher v. Sup. Ct. (Oakland Police Dep’t) (2002) 100 Cal.App.4th 386, 403.)

Whether the Pitchess process is available in administrative proceedings is uncertain. In Brown v. Valverde (2010) 183 Cal.App.4th 1531, the First District Court of Appeal found that the Pitchess process is not available in Department of Motor Vehicle administrative per se hearings. (Id., 183 Cal.App.4th at 1535.) In Riverside County Sheriff’s Department v. Stiglitz (2012) 147 Cal.Rptr.3d 292, however, the Fourth District court of appeal expressly analyzed and “completely” distinguished Brown, supra. The Stiglitz court found that an administrative hearing officer may rule on a Pitchess motion where such discovery is relevant in a Government Code section 3304(b) hearing, which is an administrative appeal of discipline imposed against a public safety officer. (Id., 147 Cal.Rptr. at 308, 313.) On January 16, 2013, the California Supreme Court granted review of the Fourth District’s opinion, depublishing the appellate opinion and leaving the issue uncertain until the case is decided.

As for federal court, the Pitchess process is not binding. (Jackson v. Cty. of Sacramento (E.D.Cal.1997) 175 F.R.D. 653, 654.) The California Pitchess discovery rule requires that the requesting party make showing of materiality, which was specifically rejected in Federal Rule of Evidence 402. (Soto v. City of Concord (N.D.Cal.1995) 162 F.R.D. 603, 609 at n.2.)

Information subject to the Pitchess privilege

Penal Code sections 832.7 and 832.8 provide the foundation for what kind of information related to peace officers is subject to the conditional Pitchess privilege. The information is protected regardless of whether it could be obtained from other sources. (Hackett v. Sup. Ct. (Glin) (1993) 13 Cal.App.4th 96, 100.)

Penal Code section 832.7(a) states, in pertinent part:

Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. . . .

Penal Code section 832.8 states,

As used in Section 832.7, “personnel records” means any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:

(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.

(b) Medical history.

(c) Election of employee benefits.

(d) Employee advancement, appraisal, or discipline.

(e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.

(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

“Personal data” does not include the officer’s identity, unless the officer was the subject of a complaint or disciplinary hearing, the employing agency, dates of current employment, or other information relating to the officer’s current job status. (Comm’n on Peace Officer Standards & Training v. Sup. Ct. (Los Angeles Times Commc’ns, LLC) (2007) 42 Cal.4th 278, 294-96, 299.) Nor does personal data include an officer’s salary. (Int’l Fed’n of Prof’l & Technical Eng’rs v. Sup. Ct. (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319, 341.)

The definition of “personnel records” pertaining to “complaints” is expansive and includes many types of documents related to potential or actual disciplinary action against an officer. Such records are not limited to Internal Affairs investigations, but also include Citizen Review Board’s reports. (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 898, 900.) Furthermore, “[u]nsustained complaints are discoverable as well as sustained complaints.” (People v. Zamora (1980) 28 Cal.3d 88, 93, n.1 (citing Saulter v. Muni. Ct. (People) (1977) 75 Cal.App.3d 231, 240; Kelvin L. v. Sup. Ct. (Cabell) (1976) 62 Cal.App.3d 823, 829).)

“Personnel records” also encompass disciplinary proceedings against peace officers. (Copley Press, Inc. v. Sup. Ct. (Cty. of San Diego) (2006) 39 Cal.4th 1272, 1279.) Disciplinary proceedings and citizen complaints are subject to the Pitchess scheme regardless of “the mechanisms set up by a local jurisdiction to handle such matters . . . .” (Berkeley Police Ass’n v. City of Berkeley (2008) 167 Cal.App.4th 385, 401 (citing Copley Press, Inc., supra, 39 Cal.4th at 1294-95); see also San Francisco Police Officers’ Ass’n, supra, 202 Cal.App.3d at 188 (determining that a local rule allowing the complainant access to the hearing officer’s decision or director’s recommendation violates confidentiality provisions).) The Pitchess privilege remains applicable to “personnel records” even after a peace officer leaves her or his employment, so long as the former peace officer was employed as an officer when the conduct being investigated occurred. (Gremminger, supra, 58 Cal.App.4th at 406.)

The agency often argues that any disclosure of information related to complaint investigations should be limited to the names and addresses of witnesses, as typical in criminal cases. In the criminal context, disclosure was limited to names and contact information of witnesses and complainants because the court believed the information was sufficient for the requesting litigant to prepare his or her case. In civil litigation, however, the rationale for this limitation may not apply. The court in Haggarty v. Superior Court (Guindazola) (2004) 117 Cal.App.4th 1079, 1090 stated:

The central rationale underlying the rule limiting discovery to witness identifying information is that the actual documents of third-party complaint information often have minimal relevance and constitute a substantial invasion of officer privacy. This reasoning does not apply in this case. As compared with the third-party complaint situation, the information contained in the Internal Affairs report is highly probative. Guindazola has the burden of proving the elements of his claims, and the investigation at issue concerns the very incident that is the subject of the civil claim. Additionally, Haggerty’s reasonable privacy concerns are diminished because he is the defendant in the litigation and the requested internal investigation records concern his actions that are alleged to be wrongful and will be fully litigated at trial. (Ibid.)

Moreover, the criminal-case opinions explicitly hold that if the information disclosed proved inadequate, the requesting party is not precluded from discovering additional information from the personnel files. (See, e.g., Carruthers v. Muni. Ct. (People) (1980) 110 Cal.App.3d 439, 442 [recognizing right to receive additional discovery if initial disclosures prove inadequate]; City of Azusa, supra, 191 Cal.App.3d at 696-97 [noting that disclosure of additional information was proper under Pitchess, supra, where witnesses were unavailable for interviews or could not remember details of events about which they had complained]; Kelvin L., supra, 62 Cal.App.3d at 829 [approving disclosure of witness identification information, but noting that if for any reason that information was inadequate, petitioner could move for further discovery].)

The nuts and bolts of the Pitchess procedure

The Noticed Motion

Evidence Code section 1043 sets forth the requirements of the Pitchess motion, and states,

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.

A party must set forth with “some specificity” the type of information sought. (Warrick v. Sup. Ct. (City of Los Angeles Police Dep’t) (2005) 35 Cal.4th 1011, 1021.) The information requested must demonstrate that the party is not simply going on a fishing expedition. (City of Santa Cruz, supra, 49 Cal.3d at 85.) In City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal.3d 74, the Court found that “other complaints of excessive force” sufficiently described the type of records sought and met the standard for good cause. (See id., 49 Cal.3d at 90-91.) In addition, if a party is seeking records related to an excessive force claim, the motion must also include the relevant police reports on the circumstances of the force alleged. (See Evid. Code, § 1046.)

The motion should be served on opposing counsel as well as the agency, or agencies, with custody or control of the records requested. (See Evid. Code, § 1043(c).)

The Affidavit(s) Showing Good Cause

The affidavit or declaration demonstrating good cause is the most critical component of the Pitchess motion. Evidence Code section 1043(b)(3) requires a showing of “good cause” by affidavit, which must demonstrate both “materiality” as well as a “reasonable belief” that the government agency has custody and control of the records or information from the records. An affiant need not, however, prove the existence of particular records – the “‘reasonable belief’ . . . may be premised upon a rational inference from known or reasonably assumed facts.” (City of Santa Cruz, supra, 49 Cal.3d at 90 (emphasis in the original).)

“This two-part showing of good cause is a ‘relatively low threshold for discovery.’” (Warrick, supra, 35 Cal.4th at 1019 (citing City of Santa Cruz, supra, 49 Cal.3d at 83); see also People v. Gaines (2009) 46 Cal.4th 172, 182 (accord).) These “‘relatively relaxed standards’ serve to ‘insure the production’ for the trial court review of ‘all potentially relevant documents.’” (Warrick, supra, 35 Cal.4th at 1016 (citing Santa Cruz, supra, at 49 Cal.3d 84).)

“Information is material if it ‘will facilitate the ascertainment of the facts and a fair trial.’” (Haggerty, supra, 117 Cal.App.4th at 1086 (internal citations omitted).) The California Supreme Court articulated four factors by which a party can demonstrate materiality: (1) a logical connection between the information requested and the party’s claims at issue; (2) the information requested is tailored to support the party’s; (3) the requested discovery will support or is likely to lead to information that would support the claims; and (4) the theory under which the information might be admissible at trial. (Warrick, supra, 35 Cal.4th at 1027; see also Gaines, supra, 46 Cal.4th at 182 (accord).) Obtaining information to impeach an officer’s credibility is permitted. (Garden Grove Police Dep’t v. Sup. Ct. (Reimann) (2001) 89 Cal.App.4th 430, 433 (review denied).)

Note, however, that the trial court is not tasked with evaluating whether a party’s theories are credible, or whether the party will prevail. The trial court does not weigh or assess the allegations, and does not determine whether they are persuasive. (Warrick, supra, 35 Cal.4th at 1025-1026.) A party is not required to present a credible or believable factual account of, or a motive for, police misconduct. (Uybungco v. Sup. Ct. (San Diego Police Dep’t) (2008) 163 Cal.App.4th 1043, 1049.) A party must simply present a plausible factual foundation for the discovery requested: a scenario that could or might have occurred. (Warrick, supra, 35 Cal.4th at 1026.)

Importantly, the affidavit for “good cause may be submitted by counsel.” (People v. Memro (1985) 38 Cal.3d 658, 676, overruled on other grounds.) The California Supreme Court expressly allows counsel’s declaration to be made on information and belief – no personal knowledge is required. In fact, “the Legislature expressly considered and rejected a requirement of personal knowledge [for section 1043(b)(3) affidavits].” (City of Santa Cruz, supra, 49 Cal.3d at 88-89 (emphasis in original. Indeed, “counsel need not disclose the source of the information asserted or how it was obtained . . . .” (Garcia v. Sup. Ct. (City of Santa Ana) (2007) 42 Cal.4th 63, 72.) The declaration may be filed under seal if necessary to protect the attorney-client or attorney work product privileges. (Id., 42 Cal.4th at 68.) Submitting a declaration by counsel protects a party from cross-examination on the document.

Thus, the declaration lays out the theory of the case, explaining why the records are essential to the issue. If you are making a Pitchess motion, don’t be coy in the declaration. Lay out the facts, and demonstrate to the court why these records are crucial to your theory of the case. The declaration is your best chance to have a “presence” in chambers while the court is conducting the in camera review to determine which documents the court will order produced. The court generally will not stop the in camera proceedings to question you about why certain documents might be relevant, or request additional briefing on an issue. The declaration is your only opportunity to refute the agency’s objections to relevance in chambers. If you are opposing a Pitchess motion, scrutinize the supporting affidavit for whether the facts averred to adequately support the requested information.

The In Camera Review and Production

The court will conduct in camera review of the documents before ordering any of the records produced. On occasion, the custodian of records for the agency will appear with the relevant documents on the day of the hearing on the Pitchess motion, so the court may proceed with the in camera inspection right away. The court may also schedule the in camera review for a later date.

Upon order of the court, “the custodian of records is obligated to bring to the trial court all ‘potentially relevant’ documents . . . .” (City of Santa Cruz, supra, 49 Cal.3d at 84.)

[I]f the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. . . [T]he locus of decision making is to be the trial court, not the . . . . custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive . . . . The trial court should then make a record of what documents it examined before ruling on the Pitchess motion.

(Mooc, supra, 26 Cal.4th at 1229.)

To make an adequate record of the documents examined, the court may photocopy the records the custodian produced and place them in a confidential file, or the court can make a list of or state for the record the documents examined. (Sisson v. Sup. Ct. (Dumanis) (2013) 216 Cal.App.4th 24, 38.) A proper record facilitates any appellate review for abuse of discretion.

To determine which records, if any, will be ordered produced, the court reviews the documents in camera for relevance. To be relevant, the records must contain information which may lead to the discovery of admissible evidence. (Gaines, supra, 46 Cal.4th at 182; Warrick, supra, 35 Cal.4th at 1024; Haggerty, supra, 117 Cal.App.4th at 1087.) The information discovered does not have to be ultimately admissible at trial. (Larry E. v. Sup. Ct. (City of Long Beach) (1987) 194 Cal.App.3d 25, 31-32.) The court may also consider whether the information may be obtained from business records, rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).)

Despite the permissive standard of relevance, the Evidence Code places certain restrictions on what information can and cannot be disclosed. Evidence Code section 1045(b) enumerates specific exceptions to what information is per se not relevant and cannot be disclosed. Section 1045(b) finds that information that is not relevant includes:

(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.

(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

Furthermore, “[r]ecords of peace officers or custodial officers, . . . including supervisorial officers, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct is alleged to have occurred within a jail facility, shall not be subject to disclosure.” (Evid. Code, § 1047.) The court must also consider whether the information may be obtained from business records, rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).)

The in camera proceeding may take minutes, days, or even a series of hearings of a course of months. With the budget cuts, be prepared to provide a private court reporter. The transcript will be sealed, and any documents ordered produced will be subject to a protective order. At minimum, the protective order will prohibit the records disclosed or discovery from being used “for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code, § 1045(e).) The court may also issue a protective order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression” upon a showing of good cause pursuant to a motion of the agency or the officer. (Evid. Code, § 1045(d).)

A Pitchess motion is a powerful tool to obtain information from the personnel records of peace officers, including complaint investigations or disciplinary actions by the employing agency. Often, law enforcement agencies have dedicated Pitchess units to respond to – i.e., oppose – Pitchess motions. Understanding how the Pitchess process works will help you make an informed decision on how to best serve your client’s interests, whether you are making a Pitchess motion, or opposing one. source

When and Why Does a Judge Have to Grant a Pitchess Motion?

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) has been interpreted in many ways over the years, mostly associated with a criminal defendant’s right to certain discovery of police officer personnel file materials to support a defense to defendant.

The Reader’s Digest Version:  A judge must grant a Pitchess Motion if a defendant shows such information in a police officer’s personnel records concerning police officer misconduct in the past is material to the subject matter of the case against defendant.  The judge’s order, under Pitchess, can only order production of documents stretching five years back, not more.