DISTRICT ATTORNEYS DEMAND OFFICERS’ DATES OF BIRTH
July 28, 2010
Law enforcement agencies have recently been contacted by various county district attorneys, demanding the dates of birth of all their officers so the D.A. can “run” them to determine if they have any criminal convictions. In most cases, the D.A.’s have stated that such action was necessary as a result of the mandate in Brady v. State of Maryland, (1963) 373 U.S. 83.
In Brady, the Supreme Court ruled, in part, that “the 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.”
In the case of Kyles v. Whitley, (1995) 514 U.S. 419, the U.S. Supreme Court found that the 14th Amendment places a duty on the prosecutors “to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.”
This current demand for dates of birth appears to be an outgrowth of the publicized failure of the San Francisco District Attorney to disclose, to the defense, names of officers who had “Brady” material in their files and who were material prosecution witnesses.
On May 4, 2010, the San Francisco Chronicle reported that “more than 80 San Francisco police officers have criminal histories or misconduct records that the Police Department withheld and prosecutors did not disclose to defense attorneys in cases in which officers testified, a failure that could put hundreds of felony convictions in jeopardy. The potential fallout could be far more severe than that caused by the cocaine-skimming scandal at the San Francisco police drug lab, which prompted prosecutors to dismiss more than 600 narcotics cases, experts say.”
The article goes on to state that the reason for the failure to notify defense counsel of “Brady” officers, was the lack of a policy in the D.A.’s office to implement that requirement. It appears that many prosecutors in California had not developed nor implemented such policies. The Los Angeles Office of the District Attorney, however, has had such a policy in place for many years and it can be accessed on their website. Among its provisions, it created a panel to review all potential “Brady” matters and notify the defense when so required.
DEMANDS FOR ALL OFFICERS’ DOB’S
Pursuant to the Brady decision, several things are classified as “Brady material,” including convictions of crimes, and the prosecutor is required to disclose such information to the defense, even if the defense doesn’t ask for it. The concept is that the prosecutor’s job is not to secure a conviction but to ensure that justice is done. That means, among other things, that
exculpatory evidence, or evidence which could be used to challenge the credibility of a material prosecution witness, must be disclosed. Failure to do so could result in the dismissal of charges and/or the reversal of a conviction.
Lael Rubin, a prosecutor with the Los Angeles County District Attorney’s Office, who oversees that county’s disclosure process and leads training seminars on the subject for prosecutors in California was quoted as saying that, “Depending on the nature of the failure to disclose (an officer’s crimes) and the officer’s role in the particular case, it could result in very serious cases being tossed out and serious offenders being released on the street.”
Nonetheless, the demand made upon law enforcement to disclose this information appears to be an overreaction by prosecutors to the situation in San Francisco. As such, it resulted in an overbroad demand for information about officers, even if they are NOT currently material witnesses in a case. In fact, District Attorneys are no different than any member of the public regarding access to confidential material. They have no right to access confidential personnel information of peace officers unless they have a need to know or duty to perform. Dates of birth have been found by the courts to be confidential personnel information.
PENAL CODE AND PERSONNEL RECORDS
P.C. 832.7(a) states, in part, that “(a) Peace officer … personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.”
P. C. 832.8 defines personnel records as follows: “As used in Section 832.7, “personnel records” means any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:
(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.
(b) Medical history.
(c) Election of employee benefits.
(d) Employee advancement, appraisal, or discipline.
(e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.
(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.”
COURT RULINGS
In 2001, the 4th District Court of Appeal held, in the case of Garden Grove Police Department v. Superior Court (Reimann), 89 Cal.App.4th 430, that a trial court was in error when it ordered a police department to disclose the birth dates of three officers to the Orange County D.A. for the purpose of running criminal records checks. The court ruled that if the defendant wanted that information, he or she was required to file a discovery motion in accordance with Evidence Code 1043 and 1045 (“Pitchess” motion).
The defendant argued that dates of birth are not confidential since, for example, they appear on the officers’ drivers licenses, birth certificates, and loan applications and, therefore, a motion was not needed. However, the court held that “the issue isn’t whether a police officer can disclose his own birth date . . . the issue is whether the court, without complying with Evidence Code sections 1043 and 1045, can order the police department to disclose an officer’s birth date to the district attorney so the district attorney can run a criminal records check on an officer.” It cannot, said the Court of Appeal.
Furthermore, in 2007, the California Supreme Court, in the case of the Commission on Peace Officers Standards and Training (POST) v. Superior Court of Sacramento (L.A. Times), 42 Cal. 4th 278, ruled that certain information was not confidential, such as names of officers, their employing agencies or the dates of their hire and/or termination, however, their birth dates (and reasons for termination) were confidential personnel information. The Court noted that the superior court did not require POST to disclose such information and that the L.A. Times didn’t challenge the trial court’s judgment.
[Jones & Mayer submitted an amicus curiae brief from CSSA, CPCA and CPOA in support of POST and privacy rights of California law enforcement officers.]
HOW THIS AFFECTS YOUR AGENCY
Although, pursuant to Brady, prosecutors may be entitled to access the D.O.B of officers, when the officers are material prosecution witnesses, in order to comply with their Brady obligations, they are not entitled to that information until that time.
As the Court of Appeal stated in the Garden Grove case, “motions for discovery of a police officer’s personnel file may be used to discover information to impeach an officer’s credibility.” However, that wouldn’t arise until or unless the officer will provide testimony in a prosecution.
Additionally, the only way for one to access that information is through the “Pitchess” process. If the prosecutor needs D.O.B.’s to comply with Brady, he or she can obtain them when relevant but, according to court decisions, he or she must also file a “Pitchess” motion.