CLIENT ALERT MEMORANDUM
May 11, 1999
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
THE IMPACT OF “BRADY” ON POLICE PERSONNEL RECORDS
Brady v. Maryland, (1963) 373 U.S. 83
Recently, my colleague Bruce Praet sent a memo to every police chief and sheriff in the state of California regarding the captioned matter. As a result we have been asked by numerous clients to comment on that document and provide guidance to them as law enforcement administrators. Since this appears to be of significance to a number of chiefs and sheriffs, we have decided to generate a Client Alert Memo and distribute it to all of our clients.
In addition to the comments contained in this cover letter I am including a copy of a document I published last year in the California Chief’s Newsletter. I also utilized it when I made a presentation on this subject to the California District Attorney’s Association at their Winter Workshop in January of this year. Finally, we are also including a sample policy which can be utilized or modified in any jurisdiction.
First and foremost I want to point out that I agree with much of what was included in Bruce Praet’s memo. There is no doubt that to be “Brady” material there must be “. . . a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” U.S. v. Bagley, 473 U.S. 667 (1985).
We also agree that if some attorneys are suggesting that there is a duty to provide prosecutors with a complete disciplinary file of officers, that information is inaccurate. Only evidence which is exculpatory or can be used for purposes of impeachment is considered Brady material and, therefore, providing a prosecutor with a completedisciplinary file would be inappropriate and possibly illegal.
It is also necessary to recognize, and protect, the privacy rights of officers regarding information contained in personnel files and, as we point out in the attached document, a process along the lines of a Pitchess motion is recommended to accomplish that task.
There are however, several areas where we must respectfully disagree, but they deal primarily with procedural matters rather than substantive issues. Because this is not “settled law,” it is imperative that each law enforcement agency communicate with its county district attorney to determine the process desired by the district attorney in that jurisdiction.
I will not reiterate the material contained in the attached document, but I do wish to point out several crucial points involving the Brady issue.
The United States Supreme Court stated in its decision of Brady v. Maryland, 373 U.S. 83 (1963):
“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
An error, even in good faith, will not prevent the court from reversing a conviction if it is subsequently determined that Brady material had been withheld.
In 1985 the Supreme Court stated in the case of United States vs. Bagley, supra, that:
“Impeachment evidence . . . falls within the Brady material rule. (citation omitted) Such evidence is ‘evidence favorable to an accused.'”
In 1975 the California Supreme Court adopted the basic concept of Brady in the case of People vs. Ruthford, 14 Cal.3rd 399, where it stated that there is a “duty on the part of the prosecution, even in the absence of a request therefore, to disclose all substantial material evidence favorable to an accused, whether such evidence relates directly to the question of guilt, to matters relevant to punishment, or to the credibility of a material witnesses.” (Emphasis in original)
In 1995, the United States Supreme Court expanded the obligation on the prosecution to provide such evidence if it is in its possession, to include the obligation to seek out such information which is either actually or constructively in the possession of any member of the prosecution team. The “team” consists of all involved in the development and/or presentation of the case.
In Kyles v. Whitley, 514 U.S. 419 (1995) the Supreme Court held “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” (Emphasis added.) The court also stated that “the penalty imposed for the prosecution failing to disclose known, favorable evidence rising to a material level of importance is inescapable.” That penalty is the reversal of a conviction.
The court further stated that a prosecutor will not be excused from Brady error merely because a law enforcement agency fails to provide a prosecutor with information aboutBrady material involving its law enforcement officers. The burden is not on the defendant but rather, on the prosecution, and the responsibility cannot be delegated to any other entity. In re Brown, 17 Cal.4th 873 (1998).
The fact that none of the cases cited above addressed information which deals with prior discipline or complaints involving officers who are material witnesses is irrelevant. The Supreme Court has already stated that information or evidence to be used for purposes of impeachment is considered Brady material. Obviously, and as acknowledged in my colleague’s memo, a finding of misconduct involving dishonesty is impeachment evidence.
A significant issue which remains unclear focuses on how a prosecutor obtains Bradyinformation. Penal Code section 832.7 states, in pertinent part, the following:
“(a) Peace officer personnel records and records maintained by any state or local agency . . . or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Section 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of police officers or a police agency conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.”
When the district attorney is preparing to present a case initiated by a peace officer, the district attorney is obviously investigating the conduct of that officer in a related proceeding — namely, prosecution of the subject.
The district attorney’s right to inspect personnel records of a police officer pursuant to Penal Code section 832.7 is limited to conduct of an officer who was serving as an officer “at the time of the conduct which is being investigated.” People v Superior Court(Gremminger), 58 Cal.App.4th 397 (1997). There is nothing in the statutory language which limits the prosecutor’s exemption only to those matters where the peace officer is a suspect or defendant in a case.
In fact, in 1983, the Attorney General issued a formal opinion stating, in part, that “as long as the investigation of [the officer’s] conduct is part of the [prosecutor’s] duties . . . a district attorney need not follow the provisions of Evidence Code Section 1043 in obtaining access to the personnel records in question.” 66 Ops. Atty. Gen. 128 (1983).
Providing information to the District Attorney regarding personnel material of a peace officer who is part of the “prosecution team” is neither “disclosure” or “discovery” of that information as used in the statute. In the case of Michael v. Gates, 38 Cal.App. 737 (1995) the Court of Appeal held that an attorney representing a police department in a civil lawsuit did not violate Penal Code section 832.7 when reviewing the personnel records of a retired police officer since there was no “disclosure” of the contents of the file and the inspection by the attorney for the department did not constitute “discovery” of that file. The court stated:
“[I]n ordinary legal usage, ‘discovery’ refers to the inspection of documents and other materials in the possession or control of an adverse party in litigation . . . . An agency which reviews its own records with its attorney has not engaged in discovery.”
Since the prosecuting attorney is not an “adverse party in litigation” but rather the attorney for the prosecution team, review of the material by the prosecutor is not, in and of itself, disclosure or discovery of that file.
It is unquestioned that there is a conflict between the right of privacy created in Penal Code section 832.7 and the constitutional duty upon the prosecutor to disclose impeachment information to a criminal defendant. In 1987 the U.S. Supreme Court addressed a similar issue in the case of Pennsylvania v. Ritchie, 480 U.S. 39 where a father was being prosecuted for the molestation of his young daughter. The daughter had been evaluated and counseled by a psychologist after the molestation had been discovered. The father demanded access to that information, which was denied, since the state had a privacy statute which protected such information.
The Supreme Court determined that “it is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” In order to insure that the right of privacy of the young child was not violated the court directed that an in camera review be conducted by the trial court to determine whether or not the constitutional due process protections of a criminal defendant would outweigh any rights of privacy created by the state’s statute. If the material was irrelevant the court would not order its release; if, on the other hand, the material was relevant, the due process right would prevail and the material would be disclosed.
As such, we recommend that a Pitchess motion pursuant to Evidence Code section 1043 be utilized by the prosecutor in order to bring the matter before a judge for review, in a process similar to that set forth in the Ritchie case. In that way the officer’s rights would be protected (since the officer would be notified of the motion), the department’s obligation to protect the confidentiality of such documents would be protected, and the district attorney’s obligation would be fulfilled.
In order to facilitate that process we have drafted a sample policy which, as indicated above, could be utilized to accomplish this task. However, we must urge once again that discussions be held with the district attorney in each jurisdiction in order to determine the process he or she wishes law enforcement to follow. Since it is the prosecutor who has the obligation to inform the court of the existence of Bradymaterial, it is the prosecutor who must make the final decision.
This is a very difficult area to deal with and is separate and apart from the normal Pitchess motion brought by a criminal defendant. Even notifying a defendant of the existence of Brady material and suggesting that the defendant bring a Pitchess motion will not relieve the prosecutor of his or her legal obligation pursuant to case law.
Hopefully, this memorandum, along with the attached documents, will help to clarify some of the issues raised in the memo referred to above. As always, before implementing this or any policy, consult your own legal counsel to ensure correct implementation of the law. Should you have any questions regarding the above, or wish to discuss it in greater detail, please do not hesitate to contact our office at (562) 590-8280.
MJM/mar
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