July 14, 2017 -- Client Alert
Brady Policy that requires disclosure absent Pitchess motion is improper. Law enforcement agencies are free to make Brady list for internal uses.
Holding: On July 11, 2017, the California Court of Appeal for the Second District held in Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriff’s Department), that disclosure of peace officer names who have sustained complaints involving truthfulness in their personnel files, first requires full litigation and granting of a Pitchess motion. The Court ruled that this was required even if the peace officer was a witness in a pending criminal prosecution where credibility might be an issue. Citing longstanding precedent, the Court case did not find a conflict between the privacy rights protected under Pitchess, and a defendant’s right to discover potentially exculpatory information under Brady. Prosecutors do not have a superior right of access to confidential peace officer personnel files, regardless of the disclosure requirements under Brady.
Agency Impact: This ruling invalidates a common practice of informal disclosure of limited peace officer personnel file information without a Pitchess motion, ostensibly to comply with disclosure requirements under Brady. Law enforcement agencies should review their policies for consistency with this ruling. Agencies should consider revising any policy that requires disclosure of peace officer names who have sustained complaints involving truthfulness in their personnel files to prosecutors—with or without a request—absent a fully litigated and granted Pitchess motion.
Case Summary: Like many other law enforcement agencies, the Los Angeles County Sheriff’s Department (LASD) had a Brady policy concerning the disclosure of peace officer names and serial numbers for officers who had sustained complaints involving untruthfulness in their personnel files. LASD, believing it had a constitutional obligation to provide the information to various prosecuting agencies in order to comply with Brady, planned on releasing the entire list and provided notice to the affected officers. If a named officer was listed as a witness in a pending case, the prosecutor would then make a Pitchess motion to discover the information, or share the information with the defense to allow the defense to make its own motion.
The association representing non-supervisory deputies objected to the planned disclosure, among other issues, arguing that a Pitchess motion was required, regardless of any disclosure obligations of the prosecution under Brady. The trial court agreed, but allowed for an exception where an officer was a potential witness in a pending case; in such cases, a Pitchess motion was not required. Even though it admitted such an exception violated the Pitchess statutes, the trial court believed the exception was required in order for LASD to fulfill its obligation under Brady as “a member of the prosecution team.” The association appealed.
The Court of Appeal agreed with the first part of the trial court’s holding but overruled the second part related to the “exception” for peace officers potentially testifying as witnesses. While the Court of Appeal understood “the appeal of a procedure intended to streamline the disclosure of information that guarantees a criminal defendant’s right to a fair trial,” the Court pointedly observed its “obligation to follow precedent, whether or not we agree with it,” and that it “had no authority, as an intermediate appellate court, to ignore precedent, jump ahead of [the California] Supreme Court, and create law.” Ultimately, the Court found LASD’s actions improper, and held that a fully litigated and granted Pitchess motion was required before the disclosure of the subject information.
For further information, please contact G. Ross Trindle, III, Anthony Taylor, or Roy Santos from Aleshire & Wynder, LLP’s Public Safety Practice Group at (949) 223-1170.
Disclaimer: Aleshire & Wynder, LLP legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Please seek legal advice before acting or relying upon any information in this communication.