Vol. 20 No. 8 – “Pitchess” Discovery Made Easier

June 6, 2005

Last Thursday, June 2, 2005, the California Supreme Court, in a 5-2 decision, made it easier for criminal defendants to access personnel files of peace officers.  In the case of Warrick v. Superior Court (City of Los Angeles Police Department), 2005 DJDAR 6347, the Court reiterated that a defendant is entitled to the trial court conducting an in camera (in chambers) review of an officer’s personnel file based upon a showing a “good cause.” However, the Supreme Court then stated that “…to obtain in chambers review a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred.” (Emphasis added.)

In the Warrick case, the defendant was charged with possessing cocaine, which the police claimed he discarded while running from them. He claimed the police falsely claimed that they saw him running and throwing the cocaine away.  The defendant said that he was there to buy, not sell, cocaine.  When arrested he had only $2.75 in his possession.  The City’s attorney argued that the defendant’s attorney’s declaration, in the motion seeking discovery of the officer’s personnel file, did “nothing more than deny his guilt.”

The city argued that the attorney’s declaration cannot merely state a scenario which might have occurred, but must set forth a plausible factual foundation, with some degree of specifity, to meet the “materiality” requirement to justify an in camera review.  The trial court agreed and denied thePitchess motion.  The Court of Appeal concurred and held that, although defense counsel’s declaration set forth “a specific factual scenario” of police misconduct, the “defendant’s declaration failed to satisfy…the articulation of a plausible factual foundation.” (Emphasis added.)

The Supreme Court stated that the Court of Appeal made error when it “…concluded that defendant’s factual scenario was implausible, not because his version of events could not have occurred, but because in the court’s view that version of events was unlikely. In doing so, the Court of Appeal elevated the showing of good cause for Pitchess discovery beyond that required by law.”

The in camera review is not the time “to determine whether a defendant’s version of events…is persuasive.”  In fact, the Supreme Court noted, “a credibility or persuasiveness standard at thePitchess discovery stage would be inconsistent with the statutory language and with our previous decisions requiring only that defense counsel’s affidavit or declaration supporting a defendant’s Pitchess motion be made on information and belief.”


The Supreme Court has set forth that it is now more difficult than ever to challenge the in camera review since the articulation of a plausible factual scenario, justifying such a review, is now viewed as something which “could or might have occurred.”  Opposition to the motion, based on the argument that the “factual scenario” set forth by the defendant was absurd, will not be sufficient to defeat the motion.

The Supreme Court set forth exactly what a court must look at to determine whether good cause has been shown to justify the in camera review. Included is whether the defendant established the materiality of the requested information? Has the defense shown a logical connection between the charges (of misconduct) and the proposed defense?  Is the request for material specific as to how it supports the claim of officer misconduct? Will the requested material support the defense or is it irrelevant?

It appears necessary to redesign the manner in which oppositions to Pitchess motions are worded.  Resisting the motion is a legal obligation imposed on management of law enforcement since the law also requires that the personnel files of peace officers be maintained as confidential.  In order to ensure that confidentiality is maintained, law enforcement must review and respond to all motions demanding access to such files.  If the motion is sufficient and meets all legal requirements, then the custodian of records and the attorney for the agency should appear in camera with proper response to the motion.

As always, we urge law enforcement management to confer with legal counsel before undertaking action which requires legal interpretation. If you wish to discuss this matter in greater detail, please feel free to contact me by phone (714 – 446-1400) or by e-mail mjm@jones-mayer.com.