CONSTITUTIONAL LAW- PITCHESS MOTIONS
Case Name – Rezek v. Superior Court (California Court of Appeal—2012 Cal. App. LEXIS 630—May 25, 2012)
Summary – When a defendant seeks statements of witnesses to the charged incident that are contained in a peace officer’s personnel file, the officer’s privacy interests are implicated less than when the information sought pertains to past incidents unconnected to the charged offense.
Facts– Rezek was charged with a violation of Penal Code § 148 and Penal Code § 594, vandalism. The prosecution theory of the case was that Rezek punched a motor vehicle driven by a private security guard in a crosswalk at a shopping center in Tustin, causing damage to the vehicle. The security guard made a citizen’s arrest of Rezek in the presence of two Tustin plainclothes police officers, Turner and Chupp, and Rezek thereafter resisted arrest.
Rezek contended that he slapped the hood of the motor vehicle being driven inattentively by the security guard when the vehicle almost struck him in the crosswalk. Rezek claimed that shortly thereafter, he was talking on his cell phone while waiting to enter a restaurant at the shopping center when he was accosted by two men who did not identify themselves as police officers and who dragged him away. Rezek alleges that the officers inflicted significant injuries on him, including breaking one of his arms. According to Rezek, the person that he had been talking with on his cell phone heard the incident until the phone was cut off. Rezek also alleged that the manager of the restaurant heard the altercation and attempted to aid him until one of the two men finally identified himself as a police officer.
In the trial court, Rezek brought a Pitchess motion, which sought information from the arresting officers’ personnel files. Rezek was ultimately provided with the name of a complaining witness to a 2004 incident involving Officer Turner involving alleged use of excessive force. Rezek subsequently was given the statements of seven witnesses to the 2004 incident when disclosure of the complaining witness’s information proved insufficient.
Rezek subsequently filed another Pitchess motion seeking copies of the verbatim statements of the percipient witnesses to the charged incident which were obtained by internal affairs following Rezek’s complaint to the Tustin Police Department against the arresting officers alleging abuse.
The trial court denied the supplemental discovery motion.
Holding – The court of appeal reversed the trial court’s decision. The court initially reviewed the burden that the moving party must establish on a Pitchess motion in order to obtain access to an officer’s confidential personnel file. The court noted that the accused is entitled to discover relevant information or documents in an officer’s personnel file on a showing of good cause. In order to establish good cause, the defendant must submit an affidavit in support of a written motion for discovery which establishes materiality of the information sought to the pending case and a specific factual scenario that establishes a plausible factual foundation for the allegations of officer misconduct. Defense counsel’s supporting declaration must also propose a defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense, or how the requested discovery may lead to such evidence.
The court noted that, unlike the typical Pitchess motion, Rezek’s motion under review did not seek discovery of third-party complaints of past incidents of alleged misconduct. Rather, the current motion was brought seeking discovery of witness statements pertaining to the very incident that served as the basis for the pending charges. The court noted that the information in an officer’s personnel file is conditionally privileged by statute, but that privilege must be weighed against the defendant’s legitimate interest in obtaining the requested information. The court stated that the defendant’s need for the statement of percipient witnesses to the charged crime is of constitutional dimension and is based upon the right to a fair trial, effective assistance of counsel, and confrontation in cross-examination. The court further stated that when a defendant seeks statements of witnesses to the charged incident, an officer’s privacy interests are implicated less than when the information sought pertains to past incidents unconnected to the charged offense.
With this decision-making framework in mind, the court of appeal stated that Rezek’s interest in obtaining the witness statements outweighed the officers’ privacy interests in maintaining the confidentiality of the statements of percipient witnesses to the charged incident. The court noted that, were it not for the fact that the witnesses’ statements were located in personnel files of police officers, there would be no question that Rezek would be entitled to such statements. Accordingly, the court determined that Rezek had made a sufficient showing to require an in-camera review of the relevant documents and that the witness statements must be disclosed subject to the requirements of subdivisions (b) and (c) of Evidence Code § 1045.
So What Do We Do Now?
The concept of seeking the disclosure of Pitchess information from the defendants own complaint and the internal affairs investigation which follows therefrom as opposed to prior unrelated third party complaints, is something we have emphasized over the past two decades. It does not come up very often and there are very few reported case decisions on the topic. This concept is often misunderstood by judges, defense attorneys and city attorneys who do not handle Pitchess motions regularly. We are quite frankly not surprised by the decision in Rezek.
You have to remember that when the department receives a Pitchess motion which seeks access to information from the defendants’ own complaint to the police about the same event which lead to his arrest and subsequent charge, the general rule that the discovery should be limited to just names, addresses and phone numbers of witnesses does not apply. Where there is a unity of subject matter between the internal affairs investigation and the criminal charges, the defense is entitled to the statement of the witnesses. They are still not entitled to the entire I.A. investigation, just certain raw material like the statement of the witnesses in the I.A. investigation. What we usually do in those situations is copy all the recorded interviews on a disc and that is the limit of the disclosure required. If there is a physical object used during an interview such as a map, aerial photo, sketch, photograph, etc. that should also be disclosed.
As in all matters involving the interpretation and/or application of the law, it is important to seek out advice and guidance from your agency’s attorney. If you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email atgpp@jones-mayer.com.
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