Law Offices of Jerry L. Steering
Wisdom * Justice * Constitution * Compensation
“Pitchess Motions”, And The Sham And Scam Of California’s Statutory Scheme For Discovery Of Peace Officer Personnel Records.
A “Pitchess Motion” is a motion made in a California Superior Court under Cal. Evid. Code § 1043-1047, to discover complaints made by civilians made against a peace officer, and the investigation of those complaints, that are contained in that alleged victim officers personnel file; his “Peace Officer Personnel Records.” Pitchess v. Superior Court , 11 Cal.3d 531 (1974.) The basis for the California Supreme Court’s decision in Pitchess v. Superior Court, was that under California Evidence Code Section 1103, a criminal defendant is permitted to show the “character” of the alleged victim of the crime that he’s accused of committing, in order to show that the alleged crime victim acted in conformity with that “character” during the very incident over which the criminal defendant is being prosecuted:
Cal. Evid. Code § 1103(a) provides:
1103. (a) In a criminal action, evidence of the character or atrait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.
(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).
In reality, the defendants get very little. Typically only the names, addresses and phone numbers of persons who had made complaints, and witnesses top the events that are the subject of any such complaints, against the alleged (bogus) victim officers, within the past five years. They don’t even give you the arrest report of the very same incident complaint, that the District Attorney’s Office has full access to. The cops must have a shredding party at the station to make sure that they don’t hold those personnel records one day more than five years from the present, even though the statutory scheme allows the discovery of Peace Officer Personnel Records that are five years or less old, about the subject incident. Moreover, even though police agencies are required by case law to keep police officer personnel records for at least five years, most, if not all police agencies keep secret files that go much further back than the required five year retention period.
The California Supreme Court sees nothing wrong with this, and “the Supremes” in Washington, D.C., aren’t going to bother to correct this little problem; the judicially authorized destruction of at least potentially exculpatory evidence; in contravention of the most basis tenets of fairness, truth and justice.
The very fact that a criminal defendant even has to bring a Pitchess Motion to obtain even highly exculpatory evidence, is repugnant to the most “etched in stone” case / mandate in the entire area of criminal Constitutional and procedural law; the obligation of the government to disclose to the defendant, any exculpatory evidence (evidence that might tend to show the innocence of the defendant); See, Brady v. Maryland, 373 U.S. 83 (1963) (government has absolute duty to divulge to a criminal defendant, any evidence tending to show his/her innocence.) However, in a California criminal case, the system is set-up to avoid this “etched in stone” mandate of the United States Supreme Court.
In 1995 the U.S. Supreme Court held that the police and the prosecution are essentially one in the same, and that a prosecutor’s obligation to reveal or divulge to the defense, any exculpatory evidence, isn’t excused bv the police failing to divulge to the prosecutor the existence of any such evidence, Kyles v. Whitley, 514 U.S. 419 (1995.) One would think, that, therefore, the prosecution necessarily should have access to the personnel records of the police officers involved in the very case that they are prosecuting, so if there is any such exculpatory evidence contained in those files, that the prosecutor can access the exculpatory value of any such evidence, and, when required to do so, divulge any such exculpatory evidence to the criminal defendant. In the very real world, police agencies are not going to voluntarily provide to the District Attorney’s Office evidence that is exculpatory; especially if that same evidence would tend to expose the arresting / investigating police officers to civil liability. No one is going to make them do it; not the District Attorney’s Office, not the Attorney General’s Office, and most of the time, not even the trial judge.
Notwithstanding this reality, the California Supreme Court held that prosecutors have no right to review police officer personnel files, even though the prosecution is required to provide exculpatory evidence to a criminal defendant. See, Johnson v. Superior Court, Case No. S221296; July 6, 2015:
“In City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 124 Cal.Rptr.2d 202, 52 P.3d 129 (City of Los Angeles ),1 we considered the interplay between the prosecution’s constitutional duty under Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (Brady ) and its progeny, and statutory procedures by which the parties can seek discovery of information in confidential peace officer personnel records. We do so again.
Brady, supra, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, generally obligates the prosecution to disclose to the defense material evidence favorable to the defendant. Separately, the Legislature has enacted procedures to implement the decision of Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (Pitchess ), which allow criminal defendants to seek discovery from the court of potentially exculpatory information located in otherwise confidential peace officer personnel records. If a party bringing what is commonly called a Pitchess motion makes a threshold showing, the court must review the records in camera and disclose to that party any information they contain that is material to the underlying case. (See Evid.Code, §§ 1043, 1045.)
In this case, the City and County of San Francisco Police Department (police department), acting pursuant to procedures it has established, informed the district attorney that confidential personnel records of two peace officers who are potential witnesses might contain exculpatory information. Before us are two interrelated questions: (1) May the prosecution examine the records itself to determine whether they contain exculpatory information, or must it, like criminal defendants, follow the procedures the Legislature established for Pitchess motions? (2) What must the prosecution do with this information to fulfill its Brady duty?
We conclude that the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records.
Because criminal defendants and the prosecution have equal ability to seek information in confidential personnel records, and because such defendants, who can represent their own interests at least as well as the prosecution and probably better, have the right to make a Pitchess motion whether or not the prosecution does so, we also conclude that the prosecution fulfills its Brady duty as regards the police department’s tip if it informs the defense of what the police department informed it, namely, that the specified records might contain exculpatory information. That way, defendants may decide for themselves whether to bring a Pitchess motion. The information the police department has provided, together with some explanation of how the officers’ credibility might be relevant to the case, would satisfy the threshold showing a defendant must make in order to trigger judicial review of the records under the Pitchess procedures.”
Take the example of cases of assault and battery of a peace officer (Cal. Penal Code § 240/241(b) [assault] and Cal. Penal Code § 242/243(b) [battery], and resisting / obstructing / delaying a peace officer in the lawful performance of his/her duties (Cal. Penal Code § 148(a)(1). In the real world, approximately 90+ percent of these cases are simply bogus and malicious prosecutions. There are absolutely no repercussions for any peace officer to falsify their police report, to false, maliciously and inhumanely, procure a bogus criminal prosecution. Who is going to call them on the carpet? No one. If the District Attorney’s Office believes (or at doesn’t actually disbelieve) the standard canned bogus false and malicious police reports (i.e. the defendant took an aggressive stance, the defendant attacked my fist with his chin, the defendant clenching his fist, so before he could swing at me, I had to grabbed him, but he fought me off, so I had to tase him, but the taser had not effect, so I had to club him, but he must have been on PCP, so I had to shoot him), and they file criminal charges against you, they have chosen sides. There is no going back. They will even hire lying creepy police experts, to justify the unjustifiable, and will choreograph perjury, withhold evidence; whatever it takes.
In Pitchess v. Superior Court, the California Supreme Court held that because under Cal. Evid. Code § 1103(a)(1), a criminal defendant may introduce evidence of a trait of the character of the “victim” of the crime, to show that the alleged crime victim acted in conformity with that character trait during the incident complained of. So, criminal defendants charged with crimes against police officers, are permitted to obtain “complaints”, and “investigations of complaints” made against such “victim” peace officers.
After the Pitchess decision came down in 1974, police agencies in California routinely destroyed peace officer personnel records, to hide their contents from criminal defendants and from persons suing the police agency. In response to all of the personnel record shredding, the California legislature created a statutory scheme, which is now the exclusive method that a civil or criminal litigant in a California Superior Court case, can obtain peace officer personnel records. This Pitchess Motion procedure requires a civil or criminal litigant to file a “Motion For Discovery Of Peace Officer Personnel Records”.
Unlike other criminal case motions, the motion must be filed no later than 15 court days prior to the date of the hearing (Cal. Evid. Code § 1043(a)), and must be accompanied by a copy of the police report (Cal. Evid. Code § 1046.) Also, the Pitchess Motion must be personally served on the employing police agency no later than 15 court days prior to the date of the hearing (Cal. Evid. Code § 1043(a).) Also, unlike any other discovery scheme or discovery statute, a police agency divulging Peace Officer Personnel Records in the absence of a Court order obtained via the Pitchess Motion process, is a crime (Opinion of the California Attorney General #99-503.)
SO WHAT’S THE CATCH?
Here’s the catch. Cal. Evid. Code § 1045 provides in pertinent part:
“(a) Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pending litigation.”
However, in the real world, the only thing that one gets from a California Superior Court Judge in a Pitchess Motion, are the names, addresses and telephone numbers of persons who either made complaints against a particular peace officer, or who were classified as witnesses to any such incident that’s the subject of the complaint; and that’s if you’re lucky.
Under California’s statutory scheme for the discovery of Peace Officer Personnel Records (commonly referred to as “Pitchess motions”; Cal. Evid. Code §§ 1043-1047), in a California criminal case of assault and/or battery on a peace officer (Cal. Penal Code §§ 240/241(b) & 242/243(b)) and/or resisting / obstructing / delaying a peace officer (Cal. Penal Code § 148(a)(1)), the accused may discover evidence of that might tend to show that the alleged “victim officer” has a violent character, and acted in conformity with that violent character; evidence such as “in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct” or other acts of violence (and, therefore, he, as opposed to the “victim officer”, was the physical aggressor; Cal. Evid. Code § , and notwithstanding long established “etched in stone” officer exculpatory value of any evidence that might tend to show that the alleged “victim officer” has a propensity for torturing arrestees (and, therefore, he, as opposed to the “victim officer”, was the physical aggressor; Cal. Evid. Code § , and notwithstanding long established “etched in stone” the unambiguous language of Cal. Evid. Code 1045(a), in a California Superior Court, one simply does not get those “records of complaints, or investigations of complaints” guaranteed to them by Section 1045, save extremely unusual cases.
One such type unusual “extremely unusual case”, is when a criminal defendant moves the Superior Court to obtain the Internal Affairs / Administrative Investigation witness statements, including the statements of the very peace officers who the defendant is being accused of committing some sort of crime against. The police fight to the death over these records. If a criminal defense lawyer somehow obtains an order compelling the employing the police agency to actually turnover these generally exculpatory documents and recordings (including impeachment and “story shaping” gems), the employing agency / entity will almost assuredly file a Petition for a Writ of Mandate with the Court of Appeal, and, if unsuccessful, Petition the California Supreme Court for Review; costing you a bloody fortune to defend yourself.
Moreover, although Pitchess v. Superior Court held that a criminal defendant may show evidence of the character of his victim to prove actions in conformity therewith, it was not until 2012 that a criminal defendant was permitted to obtain the statements of witnesses and participants to the very same incident that he/she is being criminally prosecuted for (See, Rezek v. Superior Court of Orange County (2012)); notwithstanding the most basic of Constitutional principles; the defendant’s entitlement to exculpatory evidence.
Attached are the “Pitchess Motion” documents, from a California Superior Court criminal cases, Hopefully, this example can help you in your case. Sample Pitchess Motion Notice of Motion, Declaration in support of the motion, Memorandum of Points and Authorities in support of the Motion, and the attached Notice Of Lodging Police Report in support of the Motion.
If you have a criminal or civil case, and want to find out if the Law Offices of Jerry L. Steering has exculpatory evidence on a particular police officer or deputy sheriff, please contact our staff at (949) 474-1849, or email email@example.com, and we will let you know what, if anything, we have on a particular police officer or deputy sheriff.If you have an officer that you would like to add to our Pitchess List data bank, please please contact our staff at (949) 474-1849, or email firstname.lastname@example.org. If you would like a sample copy of a Pitchess Motion, please also email or call, and we will provide you with those items.
Jerry L. Steering, Esq.