July 9, 2015 -- Client Alert
On July 6, 2015, the California Supreme Court unanimously reversed the First District Court of Appeal in People v. Superior Court (Johnson). The decision reaffirms that (1) prosecutors must comply with the Pitchess procedures if they seek information from confidential personnel records and (2) that the prosecution satisfies its Brady duty by disclosing to the defense that a testifying officer’s file may have material exculpatory information in it.
Summary of the People v. Superior Court (Johnson) Decision
Johnson involves a review of whether the prosecution may review the confidential personnel records of police officers who are witnesses in a criminal case to determine whether the records contain Brady material in addition to the prosecution’s exact obligations under Brady with regard to personnel files.
In this case, the underlying criminal action charged defendant Daryl Lee Johnson with domestic violence crimes. Two San Francisco police officers were potentially important witnesses in the case. The City and County of San Francisco Police Department, acting pursuant to procedures it had established, informed the district attorney that confidential personnel records of two peace officers who were potential witnesses might contain exculpatory information.
The Court of Appeal in this case held that the prosecution had the right to review personnel records of police officer witnesses for Brady material without complying with the Pitchess procedures. The California Supreme Court unanimously reversed the judgment of the First District Court of Appeal. This decision protects the confidentiality of personnel files and puts the burden back on defendants to make Pitchess motions if they find it worthwhile.
A. Whether the Prosecution Has Direct Access to Confidential Personnel Records
The Court held that the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. The prosecution must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records.
Penal Code section 832.7(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. Contrary to the Court of Appeal’s view, the exception for investigations under Penal Code section 832.7(a) does not apply here. Giving prosecutors routine access to law enforcement officers’ confidential personnel records whenever an officer becomes a witness in a criminal case would not protect the officers’ privacy interests.
The Court reasoned that permitting prosecutors routine access to personnel records is not necessary to protect defendants’ due process right to obtain potentially exculpatory evidence. The Pitchess procedures established by the Legislature sufficiently protect defendants’ interests without unduly infringing on police officers’ privacy interests. Ultimately, prosecutors, as well as defendants, must comply with the Pitchess procedures if they seek information from confidential personnel records.
B. The Scope of the Prosecutor’s Brady Obligation Regarding Confidential Personnel
The Court held that the prosecution has no Brady obligation to do what the defense can do just as well for itself. The prosecution fulfilled its Brady obligation when it informed defendant of what the police department told it, namely that the personnel records of the officers in question might contain Brady material, and that the officers were important witnesses.
The Court reasoned that numerous federal decisions have made it clear that if the prosecution provides the defense with, or if the defense otherwise has, sufficient information to obtain the evidence itself, there is no Brady violation. The Court found several advantages to having the defendant use the Pitchess procedures to acquire exculpatory material in confidential personnel records rather than requiring the prosecution to do so.
First, the credibility of police officer witnesses in criminal cases might not be at issue. If the defense does not intend to challenge an officer’s credibility, it might reasonably choose not to bring a Pitchess motion, and the prosecution would have no way of knowing this. Requiring the prosecution to seek the information on the defendant’s behalf would essentially force the Pitchess procedures to be employed in most, if not all, criminal cases. The Pitchess procedures should be reserved for cases in which officer credibility is, or might be, actually at issue rather than essentially mandated in all cases.
Second, it makes sense to have the defense make the Pitchess motion for itself rather than force the prosecution to do so. Requiring the prosecution to routinely seek Brady material in personnel reports also fosters unnecessary duplicative proceedings. It is more efficient to require the defense to employ the Pitchess procedures if it wishes to obtain the information. Finally, requiring the defense to file its own Pitchess motion would ensure that a record exists of what occurred.
The Court held that permitting defendants to seek Pitchess discovery fully protects their due process right under Brady to obtain discovery of potentially exculpatory information located in confidential personnel records. The prosecution did not need to do anything in these circumstances beyond providing the defense with any information it had regarding what the records might contain — in this case informing the defense of what the police department had stated.
The decision was certified for publication. The full text is available here:
For further information, please contact any of the attorneys from Aleshire & Wynder, LLP’s Public Safety 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.