PROSECUTOR CAN REVIEW OFFICERS’ PERSONNEL FILES TO COMPLY WITH “BRADY” OBLIGATIONS
On August 11, 2014, the California First District Court of Appeal held in The People v. The Superior Court of San Francisco (Johnson), that “(i)n fulfilling its federal constitutional duty to disclose exculpatory evidence to a criminal defendant under Brady v. Maryland, (1963) 373 U.S. 83, . . . the prosecution [is] entitled to direct access to peace officer personnel files.”
“The trial court denied the prosecution’s Section 1043 motion for in camera Brady review and directed the SF Police Department ‘to give the District Attorney access to the personnel files of officers Dominguez and Carrasco ‘so the prosecution can comply with itsBrady mandate[.]’”
Petitioners sought issuance of a writ of mandate and/or prohibition requesting that the Court of Appeal direct the respondent superior court to accept the officer personnel records proffered by the SF Police Department and to review the records in camera and disclose all Brady materials to both the prosecution and defense counsel, subject to a protective order.
The Court of Appeal denied that writ petition, and disagreed with the arguments set forth by the Petitioners that, “because Section 832.7(a) bars direct prosecutorial access to these files, the trial court is required, after a proper showing by the prosecution, to conduct theBrady review of the files to identify materials that must be disclosed to the defendant. Petitioners suggest the prosecution may obtain such a review and disclosure by filing a motion under Section 1043.”
Facts
The District Attorney charged Daryl Lee Johnson with one count of felony domestic violence, in addition to a misdemeanor. The DA then filed a motion which “requested that the court conduct an in camera review of personnel records of Officers Dominguez and Carrasco to determine whether any items in their files were material under Bradyand therefore subject to disclosure. It also requested that the court ‘disclose to the District Attorney’s Office and the defense any Bradymaterial located in the personnel files, and . . . issue a protective order to protect the officers’ statutory right of privacy in their personnel files.’”
The DA’s declaration stated that “Officers Dominguez and Carrasco ‘are necessary and essential witnesses for the prosecution in this case on virtually all the issues and each of the counts charged.’ The SF Police Department had informed the prosecution that each of the officers had ‘material in his . . . personnel file that may be subject to disclosure under’ Brady. (Italics added.)”
Furthermore, the declaration explained that the records “are material to the pending litigation in that they pertain to the credibility of a necessary and material prosecution witness, and could either impeach said witness or lead to evidence exonerating the defendant.”
The trial court held a hearing on the motion and issued an order which “concluded the prosecution had not made a sufficient showing ofBrady materiality to justify court review of the records. The court also concluded that the Pitchess motion procedures (§ 1043 et seq.) do not apply to motions seeking review of police officer personnel records under Brady, and Section 832.7(a) is unconstitutional to the extent it bars the prosecution from obtaining access to officer personnel records in order to comply with Brady.”
The trial court’s order stated that “(o)nce the District Attorney has reviewed the personnel records, he will be able to fulfill his constitutional obligation to disclose to the Public Defender any information that is material under Brady.” The petitioners’ sought a “writ of mandate and/or prohibition ordering respondent superior court to vacate its January 2014 order denying the prosecution’s Section 1043 motion, directing the SF Police Department to give the prosecution access to officer personnel files, and declaring Section 832.7(a) unconstitutional.”
The Court of Appeal stayed the January 2014 order, and the trial in defendant Johnson’s criminal case, and directed the trial court to show cause why the relief requested in the petitions should not be granted.
Discussion
The Court of Appeal stated that “(t)his case is the latest in a body of case law considering the ‘interplay’ between the United States Supreme Court’s 1963 decision in Brady v. Maryland and the statutory discovery procedures enacted by the California Legislature after the California Supreme Court’s decision in Pitchess v. Superior Court,(1974) 11 Cal.3d 531. ‘In Brady, the high court announced a rule, founded on the due process guarantee of the federal Constitution, that requires the prosecution to disclose evidence that is favorable and ‘material’ to the defense.’”
“The Pitchess procedures include, among others, the key statutory provisions at issue in the present case, Section 832.7(a), Section 1043, and Evidence Code section 1045. Section 832.7(a) declares that peace officer personnel records ‘are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant’ to Section 1045. Section 1043 sets forth requirements for a motion seeking ‘discovery or disclosure’ of peace officer personnel records, and Section 1045 contains ‘protective provisions’ related to officer privacy interests.”
The Court of Appeal states that “(a)t issue in this case is whether the prosecution may routinely require the trial court to conduct the initialBrady materiality review of documents from officer personnel files identified by the SF Police Department as containing potential Bradymaterial?”
The Court concludes that “properly construed, Section 832.7(a) does not preclude prosecutorial access to officer personnel files for Bradypurposes.”
“At various places in our opinion we refer to the initial review and identification of Brady materials by the prosecution as the ‘first stage’ of the Brady disclosure process. We further conclude that, prior to disclosing the identified Brady material to the defendant, the prosecution must file a motion for such disclosure under Section 1043. We refer to this request for disclosure as the ‘second stage’ of theBrady disclosure process. This resolution is consistent with the statutory language, the Legislature’s intent for a judicial role in disclosure to protect officer privacy, and the prosecution’s federal constitutional obligations under Brady.”
“Responsibility for Brady compliance lies exclusively with the prosecution[.] The scope of this disclosure obligation extends beyond the contents of the prosecutor’s case file and encompasses the duty to ascertain as well as divulge ‘any favorable evidence known to the others acting on the government’s behalf. . . .’ Courts have thus consistently ‘decline[d] to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.’”
“(T)he [California] Supreme Court has unambiguously assigned the duty to disclose solely and exclusively to the prosecution; those assisting the government’s case are no more than its agents. By necessary implication, the duty is non-delegable at least to the extent the prosecution remains responsible for any lapse in compliance. Since the prosecution must bear the consequences of its own failure to disclose, a fortiori, it must be charged with any negligence on the part of other agencies acting in its behalf.”
Penal Code Section 832.7(a)
“Section 832.7(a) provides: ‘Peace officer or custodial 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. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.’” (Emphasis added.)
“In complying with Brady, with respect to materials in peace officer personnel files, there are two analytically distinct stages, identification and disclosure. The first requires access to officer personnel files to identify materials that must be disclosed under Brady. The second stage is disclosure of Brady materials to the defendant in a criminal proceeding.”
“(W)e disagree that Section 832.7(a) eliminates prosecutorial access; although the statute specifies procedures for the second stagedisclosure of Brady materials in criminal proceedings, it does not prohibit the prosecutor, as the head of the prosecution team, from performing the constitutionally mandated role of identifying Bradymaterials in the personnel files. In particular, when a prosecutor acting as the head of a prosecution team inspects officer personnel files, or portions thereof, for Brady purposes, that inspection does not constitute disclosure of the files in a criminal proceeding, or otherwise breach the confidentiality of the files.”
“(W)hen a prosecutor conducts a Brady review of an officer’s personnel file, the prosecutor is investigating that officer’s conduct to determine whether there is any evidence that could be used to impeach him or her at trial.”
Confidentiality of Personnel Files
In Michael v. Gates, (1995) 38 Cal.App.4th 737, “a police department permitted a deputy city attorney to review the personnel records of a former police officer [Gates], in order to identify impeachment evidence for use in a lawsuit against the department, in which the former officer was an expert witness for the plaintiff.” Gates argued that the deputy city attorney was prohibited from reviewing his personnel files without a noticed motion under Section 1043.
The Gates court concluded “there was no ‘discovery or disclosure’ of [the officer’s] records within the meaning of the statutes.’ The court reasoned: ‘[Section 1043] applies to ‘any case in which discovery or disclosure’ of peace officer personnel records is sought. The statutes thus protect [officer] privacy rights by requiring a noticed motion, in camera hearing, and court order before [officer] records could be introduced or otherwise used in any litigation. But the legislative intent ‘to balance a litigant’s need to present a case and a peace officer’s right to privacy . . . would not be advanced by extending the procedural requirements to a preliminary review of peace officer records, where there is no disclosure in litigation, and no “discovery.’” “An agency which reviews its own records with its attorney has not engaged in discovery.”
“Under Government Code section 26500, the District Attorney is the public prosecutor in a criminal prosecution, representing the People of the State of California.” The Court of Appeal notes that “(e)ven though the District Attorney in a criminal prosecution is not the attorney for the SF Police Department in the same sense as in Gates, the joint operation of the agencies as a prosecution team is a sufficiently analogous relationship, justifying the same result under Section 832.7(a). We therefore conclude the reasoning of Gates is applicable in the present case. In particular, a prosecutorial inspection of an officer’s personnel file for Brady purposes is not a disclosure of the file within the criminal proceeding.”
“The district attorney’s office and police department constitute a single prosecution team in any given criminal case, and the police department acts as the prosecutor’s ‘agent’ with respect to the retention of potential Brady material. For this reason, we determined above that an inspection of officer personnel files by a prosecutor would not constitute disclosure of the files within the criminal proceeding. Similarly, such an inspection would not breach the confidentiality of the files.”
Disclosure of Brady Material to the Defense
Although the Court finds that the prosecutor can access police personnel files to identify potential Brady material, without a Pitchessmotion, it cannot disclose that information to the defense without complying with Pitchess.
“Having decided that Section 832.7(a) does not prevent the prosecutor from complying with its constitutional obligation to identify Bradymaterial in officer personnel files, we address the second issue: is the prosecution permitted to disclose the Brady material without seeking permission from the trial court, or must the prosecution file a motion under Section 1043 to obtain court authorization for the disclosure to the defense?” (Emphasis in original.)
“The plain language of Section 832.7(a) and Section 1043 compels the conclusion that any disclosure to the defendant must be pursuant to a motion under Section 1043. The relevant language in Section 832.7(a) is that peace officer personnel records ‘shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.’ No party suggests any reasonable construction of that language under which disclosure of Brady material from a personnel file to a criminal defendant is not a disclosure of personnel records in a criminal proceeding.”
HOW THIS AFFECTS YOUR AGENCY
The Court of Appeal has now clearly established that the District Attorney is entitled to have direct access to the personnel file of an officer who is a material witness in a criminal prosecution. The purpose behind the DA’s review of the file is to ascertain if there is any evidence that could be used to impeach the officer at trial, which would constitute Brady material. It is the duty of the prosecutor to seek out and find any Brady material and disclose it to the defense, even without a request from the defendant.
However, under California law, there are procedural steps which must be followed before such personnel information of peace officers can be disclosed. As the Court explicitly finds, review by the prosecutor isnot disclosure in a criminal proceeding and, if such material is to be disclosed, it must be done in accordance with Evidence Code section 1043.
With that said, although direct access by the prosecutor is permissible, it is not mandated if alternative procedures are agreed upon between the law enforcement agency and the prosecutor. However, the prosecutor will be held accountable if Brady material is deliberately, or inadvertently, withheld and, therefore, not disclosed to the defense.
As the Court of Appeal stated, “our decision does not prohibit police departments and district attorneys from designing orderly procedures to identify and provide materials for Brady review by prosecutors.Brady imposes the disclosure obligation on the prosecution, but it allows some flexibility in how the prosecution complies with that obligation.” The Court then notes that, “as always, the prosecution bears the risk of reversal if the adopted procedures are inadequate and Brady material is not disclosed.”
We always urge that you seek out guidance from your agency’s legal advisor when legal issues arise. In this situation, we would urge that your counsel be directly involved – whether the prosecutor wants personal access to the files or relies upon your reviewing the files at the request of the prosecutor. Analysis of what constitutes Bradymaterial is a legal determination and, as such, support from your legal counsel is most important.
As always, if you wish to discuss this case in greater detail please feel free to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com.
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