What is a Pitchess motion?

A Pitchess motion is a discovery motion that can be filed in civil or criminal cases to seek personnel records of a law enforcement officer. It gets its name from the seminal case Pitchess v. Superior Court (1974) 11 Cal.3d 531.

A defendant’s statutory rights derive from Evidence Code sections 1043-1047 and Penal Code sections 832.7 and 832.8, all of which were enacted in 1978 in the wake of the California Supreme Court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531. These statutes create a procedural mechanism for discovery which seeks to balance the goal of maintaining the confidentiality of police officer’s personnel files with a criminal defendant’s right to disclosure of the relevant evidence contained in those files. (People v. Mooc (2001) 26 Cal.4th 1216, 1225-1227; City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 8-10; Warrick v. Superior Court (2005) 35 Cal.41h 1011, 1018-1019.) The statutory right to discover evidence in a police officer’s personnel file is “based on the premise that [it] may be relevant to an accused’s criminal defense and that to withhold such relevant evidence from the defendant would violate the accused’s due process right to a fair trial.” (People v. Mooc, supra, 26 Cal.4th at 1227.)

This statutory procedural mechanism “must be viewed against the larger background of the prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant’s right to a fair trial … ” (People v. Mooc, supra, 26 Cal.4th at 1225, citing United States v. Bagley (1985) 473 U.S. 667, 674-678 & Brady v. Maryland (1967) 373 U.S. 83, 87.) “[T]he Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information.”(City of Los Angeles v. Superior Court (Brandon), supra, 29 Cal.4th at 14, internal quotation marks omitted.) Indeed, “exculpatory” citizen complaints older than five years, for example, “may be subject to disclosure, notwithstanding the five-year limitation in section 1045(b)(l).” (Id.; see also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378 [“The prosecutor’s duties of disclosure under the due process clause are wholly independent of any statutory scheme of reciprocal discovery”].)

II. DISCOVERY UNDER BRADY V. MARYLAND

A criminal defendant possesses a constitutional due process right to discover any evidence favorable to the defense. (Brady v. Maryland, supra, 373 U.S. 83.) This right to discover exculpatory evidence applies at all stages of a criminal proceeding, including a Pitchess motion, (City of Los Angeles v. Superior Court (Brandon), supra, 29 Cal.4th at pp. 14-15), and it applies whether or not the defendant has made a request. (United States v. Agurs (1976) 427 U.S. 97, 107.) “Evidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses.” (In Re Sassounian (1995) 9 Cal.4th 535, 544, citing United States v. Bagley (1985) 473 U.S. 667, 676.) It is considered “material” if there is a “reasonable probability that its disclosure would have produced a different verdict or punishment.” (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 398, fn. 4; citing Strickler v. Greene (1999) 527 U.S. 263, 280-281.) The requisite “reasonable probability” is a probability sufficient to “undermine confidence in the outcome” on the part of the reviewing court. (United States v. Bagley, supra, 473 U.S. at p. 682; see also Kyles v. Whitley (1995) 514 U.S. 419, 433-434; In re Sassounian, supra, 9 Cal.4th at p. 544.) Finally, Brady material includes information known only to the police and not to the prosecutor, which means the prosecution has a non-delegable “duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” (Kyles v. Whitley, supra, 514 U.S. at p. 437; see also In re Brown (1998) 17 Cal.41h 873, 879-880.)

In the context of a Pitchess motion, the government has a duty to “seek and assess” the information contained in the relevant police personnel files to determine if there is exculpatory evidence which constitutionally must be disclosed. (See City of Los Angeles v. Superior Court (Brandon), supra, 29 Cal.4th at p. 12.) While responsibility for this review ultimately rests with the prosecution, the trial court should also inspect for Brady material when it reviews police personnel files in camera. (Id. at pp. 14-15.) After all, inasmuch as “Brady‘s constitutional materiality standard is narrower than the Pitchess requirements, any … complaint that meets Brady‘s test of materiality necessarily meets the relevance standard for disclosure under Pitchess.” (Id. at p. 10.) Indeed, Brandon suggests that, given the constitutional rights at stake, the court’s inspection can –and should –encompass the relevant officer’s entire personnel file, without regard to age of the information or the manner in which it is catalogued. (Id. at pp.13-15.)

In determining what information should be disclosed, the court must answer the following three questions:

(1) Is the information favorable to the defendant, either because it is exculpatory or impeaching?

(2) Is it in the possession of the police or another member of the government’s “team”? And,

(3) Is it either “material” or “dispositive” on the issue of guilt or punishment?

If the answer to each of these questions is “yes,” the information must be disclosed to the defense.

III. DISCOVERY UNDER PITCHESS V. SUPERIOR COURT AND EVIDENCE CODE SECTIONS 1043 ET SEQ.

A. Upon a Showing of Good Cause, a Defendant Is Entitled to Have All Potentially Relevant Information In the Police Personnel File Reviewed by the Court.

The discovery of police personnel records is governed by sections 1043-1047 of the Evidence Code. The statutory scheme was intended to “expand” the scope of discovery of privileged materials (People v. Memro, supra, 38 Cal.3d at 680; City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84 [section 1043’s lenient standard was designed to protect a criminal defendant’s strong interest in obtaining all information pertinent to his defense]) and to “carefully balance two directly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to his defense.” (People v. Memro, supra, 38 Cal.3d at p. 679, fn. 19.)

Recent California Supreme Court decisions in Warrick v. Superior Court, supra, 35 Cal.4th 1011 and Garcia v. Superior Court (2007) 42 Cal.41h 63, provide straightforward explanations of the showing required to obtain Pitchess discovery. In short, as part of a written motion, a defendant seeking Pitchess discovery must provide an attorney affidavit establishing a good cause showing of materiality (per Evidence Code section 1043). In order to do so, counsel’s affidavit must:

(1) Propose a defense or defenses to the pending charges;

(2) Articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence that would support the proposed defenses;

(3) Describe a plausible factual scenario supporting the claimed officer misconduct; depending on the circumstances of the case, this factual scenario may consist of a denial of facts asserted in the police report.

(Warrick v. Superior Court, supra, 35 Cal.4th at 1024-1025; Garcia v. Superior Court, supra, 42 Cal.4th 70-71.) A plausible scenario of officer misconduct is one that might or could have occurred. (Warrick v. Superior Court, supra, 35 Cal.4th at 1016, 1026; Garcia v. Superior Court, supra, 42 Cal.4th at 71.) A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. (Id.)

In Warrick, defendant had been arrested and charged with possession of cocaine for sale after three police officers spotted him on a drug-infested downtown street comer staring into a clear plastic baggie containing “off-white solids.” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1016.) When the officers got out of their cruiser, Warrick took off running, discarding the contents of the baggie in his wake. He was captured after a short pursuit with the empty plastic baggie still in his hand. Following the path of his flight, police collected 42 rocks of what turned out to be cocaine base. A search of his pockets uncovered only $2.75 and three porcelain sparkplug chips, a “common” auto burglary tool. Defendant sought via Pitchess motion “previous complaints against the officers for dishonesty.” (Id. at p. 1017.) In support of the motion, defendant’s attorney filed a declaration which contained the following allegations:

When the three officers got out of the patrol car, defendant, who feared an arrest on an outstanding parole warrant, started to run away, but within moments the officers caught up with him. Meanwhile, there were “people pushing and kicking and fighting with each other” as they collected from the ground objects later determined to be rock cocaine. After two officers retrieved some of the rocks, an officer told defendant, “You must have thrown this.” Defendant denied possessing or discarding any rock cocaine. He said he was in the area to buy cocaine from a seller who was present there. … the officers, not knowing who had discarded the cocaine, falsely claimed to have seen defendant, who was running away, do so. (Id. at p. 1017.) The Court found that these assertions constituted a sufficient showing. (Id. at p. 1027.) The Court stressed that a plausible factual foundation does not depend upon fine credibility determinations. “To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court’s task in assessing a Pitchess motion is to weigh or assess the evidence. It is not.” (Id. at p. l026; italics in original.) To the contrary, “a plausible scenario of officer misconduct is [simply] one that might or could have occurred.” (Id. at p. 1026.)

In Garcia, the Court summed up the “minimal showing” required in Pitchess affidavits as follows: “Essentially, the defendant must propose a potential defense to the pending charge, articulate how the discovery might lead to or constitute evidence providing impeachment or supporting the defense, and describe an internally consistent factual scenario of claimed officer misconduct … [which] may be a simple denial of accusations in the police report or an alternative version of what might have occurred.” (Garcia v. Superior Court, supra, 42 Cal.41h at 72.) This description is consistent with earlier cases describing the “plausible justification” requirement as a “relatively low threshold for discovery” (People v. Memro, supra, 38 Cal.3d at p. 683), that may be satisfied by “general allegations” upon information and belief (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 85-94) asserting that records are “material … to the subject matter involved in the pending litigation” (Evidence Code § 1043(b )(3)). “All that is required is that the information sought must have some factual basis and must be stated with ‘specificity’ to preclude the possibility of a defendant simply casting about for any information which might prove helpful to the defense.” (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 395.) Once the records have been produced for inspection by the court, Evidence Code section 1045 governs their disclosure. Section 1045 mandates in camera review by the court, and limits discovery to that information which “is relevant to the subject matter involved in the pending litigation.” (Evidence Code § 1045(a).) To be ”relevant to the subject matter involved in the pending litigation,” the discoverable materials need not be admissible at trial. So long as disclosure “might lead to admissible evidence,” the information must be turned over. (People v. Memro, supra, 38 Cal.3d at p. 682; City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 85; Pierre C. v. Superior Court (1984) 159 Cal.App.3d 1120, 1122-1123; People v. Superior Court (Bonner), supra, 104 Cal.App.3d at p. 691; Lemelle v. Superior Court, supra, 77 Cal.App.3d at pp. 162-164.) Historically, at least, this has included information which might be used to show that the officers in question:

Lack credibility (People v. Hustead (1999) 74 Cal.App.4th 410);
Fabricated evidence (People v. Gill (1998) 60 Cal.App.4th 743);
Made false arrests (Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823);
Coerced involuntary confessions (People v. Memro, supra, 38 Cal.3d 658);
Displayed racial, ethnic, religious or sexual discrimination or prejudice (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148; Arcellona v. Municipal Court (1980) 113 Cal.App.3d 523 [prejudice against homosexuals]).
Committed the alleged misconduct as a habit and custom (People v. Memro, supra, 38 Cal.3d at p. 681);
Harbored a motive or intent to commit the alleged misconduct (Ibid.); or,
Were operating according to a nefarious “common plan” or scheme. (Ibid.)

Thus, for example, Pitchess discovery applies to all officers “directly involved in the fracas” regardless of whether the officer is named in the complaint or information or is considered a “victim.” (Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 696-697.) It does not matter whether or not the police agency sustained the complaints or exonerated the officer. The complaints remain discoverable regardless of any action or inaction taken by the police agency. (People v. Zamora (1980) 28 Cal.3d 88, 93 .) The Pitchess discovery statutes also allow the discovery of records of officers who were not involved in the arrest or booking of a defendant if the materiality to the subject matter of the litigation of that officer is established. (See Alt v. Superior Court (1999) 74 Cal.App.4th 950, 955-959.)

Pierre C. v. Superior Court, supra, 159 Cal.App.3d 1120 further illustrates how the standard of review works. Charged with a violation of section 11359 of the Health & Safety Code, the defendant sought production of citizen complaints against the arresting officers for racial prejudice, false arrest, illegal search & seizure, the fabrication of charges and/or evidence, dishonesty and improper tactics, such as conduct unbecoming of an officer, neglect of duty, false arrest and miscellaneous. (Id. at p. 1122.) The declaration accompanying the motion alleged upon information and belief that “petitioner would proffer a defense of false arrest. .. that the officers in question had previously engaged in similar conduct … and ‘a material and substantial issue in the trial’ would be character, habits, customs and credibility of the officers.” (Id. at p.1123.) The First District Court of Appeal ruled that these allegations were sufficient – “as a matter of law” –to trigger an in camera review of the arresting officers’ personnel records. (Ibid.) “The Legislature,” the court concluded, “has determined [by its enactment of Evidence Code § 1043 et. seq.] that the moving party must show only that the personnel records are material to the subject matter in the pending litigation. . . . Since petitioner crossed th[at] threshold with his motion papers, respondent court was required to hold an in camera hearing to review the records and to determine if they are relevant to the subject matter involved.” (Id. at pp. 1122-1123; In accord, Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523, 530.)

Likewise, in People v. Hustead, supra, 74 Cal.App.4th 410, defendant sought discovery of citizen complaints for “misstating or fabricating facts.” (Id. at p. 416.) In support of this motion, defense counsel “asserted in his declaration that the officer [who arrested defendant for evading arrest (Vehicle Code § 2800.2)] made material misstatements with respect to his observations, including fabricating appellant’s alleged dangerous driving maneuvers.” (Ibid.) He also averred that defendant “did not drive in the manner described by the report and that his driving route was different from that found in the report.” (Ibid.) The declaration concluded with the assertion that “a material and substantial issue in the trial would be the character, habits, customs and credibility of the officer.” (Id. at pp. 416-417.) According to the Fifth District, “these allegations were sufficient to establish a plausible factual foundation for an allegation that the officer made false accusations in his report.” (Id. at p. 417.) Citing the Memro decision, the court noted that “one legitimate goal of discovery is to obtain information ‘for possible use to impeach or cross-examine an adverse witness’. . .. [O]ther cases have [likewise] held that Pitchess motions are proper for issues relating to credibility.” (Id. at p. 417; citing Foster v. Superior Court (1980) 107 Cal.App.3d 218, 227, Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 28-33 and Pierre C. v. Superior Court, supra, 159 Cal.App.3d at pp. 1122-1123; italics added.) The case was remanded to the trial court with instructions to conduct an in camera review of the arresting officer’s personnel files to determine whether there were any citizen complaints that the officers had lied, misstated or fabricated facts in the line of duty.