Vol. 30 No. 17 The District Attorney Must Serve A Pitchess Motion Before Accessing A Peace Officer’s Personnel File


On July 6, 2015, the California Supreme Court unanimously overturned the case of People v. Superior Court (Johnson). The Supreme Court reversed the Court of Appeal decision, issued last fall, which held that when a peace officer was a material witness in a criminal case, the prosecutor, in order to satisfy the obligation of disclosure under Brady v. Maryland, 373 U.S. 83, could conduct an initial inspection of that officer’s personnel file without first filing a Pitchess motion, because the initial inspection did not constitute a disclosure prohibited by Penal Code § 832.7(a).

The Court of Appeal held that the initial inspection fell under the exemption to the Pitchess motion requirement in Section 832.7(a) because it was an investigation or proceeding concerning the conduct of a police officer or police agency conducted by the District Attorney.  Furthermore, the Court of Appeal held that review by the DA, the head of the “prosecution team” was not “disclosure” in a criminal proceeding.

The Supreme Court reversed that decision and returned California law to where it was before; namely, that a prosecutor has no greater access to a peace officer’s personnel file than does a criminal defense attorney and, if a prosecutor wants access to such a file, a Pitchess motion is required.


In this case, the San Francisco Police Department, acting pursuant to internal procedures it created, informed the district attorney that confidential personnel records of two peace officers, who were potential material prosecution witnesses, might contain exculpatory information. Based on that information, the prosecution filed a Pitchess motion. Attached to the motion was a declaration which alluded to the information provided by the San Francisco Police Department.  This information was shared pursuant to the Department’s Bureau Order No. 2010-01.

The DA’s motion asked the trial judge to review the information contained in the officer’s file in camera to determine if it truly was subject to disclosure under Brady v Maryland.  The trial judge refused to conduct the in camerareview of the file, ruling that the prosecutor was allowed access to the personnel files under Penal Code § 832.7(a) and, therefore, there was no need for the motion.  The Court of Appeal affirmed that ruling.

The Supreme Court Decision

Penal Code § 832.7(a)

Under Brady, supra, and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. The duty extends to evidence known to others acting on the prosecution’s behalf, including the police.

The duty of disclosure “is not limited to evidence the prosecutor’s office itself actually knows of or possesses, but includes ‘evidence known to the others acting on the government’s behalf in the case, including the police’”. The duty to disclose “exists even though there has been no request by the accused.” (People v. Salazar, (2005) 35 Cal.4th 1031, 1042; see United States v. Agurs, (1976) 427 U.S. 97, 107.)

For Brady purposes, evidence is material if it is reasonably probable that its disclosure would alter the outcome of the trial. (People v. Lucas, (2014) 60 Cal.4th 153, 273-274; City of Los Angeles, supra, 29 Cal.4th at pp. 7-8.)

Although both Brady and the statutory Pitchess procedures employ the terms “material” or “materiality” in describing what must be disclosed, these words are not used in the same way. Under Brady, evidence is “material” only if it is reasonably probable that the outcome of a prosecution would have been different had the evidence been disclosed. (City of Los Angeles, supra, 29 Cal.4th at pp. 7-8.)

By contrast, “[u]nder Pitchess, a defendant need only show that the information sought is material ‘to the subject matter involved in the pending litigation.’ (Evidence Code, § 1043, subd. (b)(3).)

Penal Code § 832.7, subdivision (a), provides as relevant: “Peace officer or custodial officer personnel records . . . , 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.”

The Courts of Appeal have consistently held that the prosecution does not have access to confidential personnel records absent compliance with thePitchess procedures.  (Rezek v. Superior Court, supra, 206 Cal.App.4th at p. 642; Becerrada v. Superior Court, (2005) 131 Cal.App.4th 409, 415; People v. Gutierrez, (2003) 112 Cal.App.4th 1463, 1475; Abatti v. Superior Court,(2003) 112 Cal.App.4th 39, 56; People v. Superior Court, (Gremminger) (1997) 58 Cal.App.4th 397, 404-407.)

The Supreme Court held that the exemption language contained in Penal Code § 832.7(a) pertained only to investigations of an officer’s conduct and checking for Brady material is not an investigation for these purposes.  A police officer does not become the target of an investigation merely by being a witness in a criminal case.

Furthermore, the Court said, treating such officers as the subject of an investigation whenever they become a witness in a criminal case, thus giving the prosecutor routine access to their confidential personnel records, would not protect their privacy interests “to the fullest extent possible.”
Accordingly, the Court concluded that prosecutors, as well as defendants, must comply with the Pitchess procedures if they seek information from confidential police personnel records.

Brady Obligation

When a police department informs a District Attorney that the officer’s personnel file might contain Brady material, and the prosecution determines it is Brady material, the prosecutor has a duty to provide this information to the defense. However, the Court held that “the prosecution has no Bradyobligation to do what the defense can do just as well for itself.” The Court went further, stating “the prosecutor had no constitutional duty to conduct defendant’s investigation for him.”  Once a defendant has some general knowledge of the potential existence of Brady material, it is fully available to him through the Pitchess motion procedure.

If a defendant’s “only reason for not obtaining and presenting the evidence . . . is his lack of reasonable diligence the defendant has no Brady claim. Because a defendant may seek potential exculpatory information in those personnel records just as well as the prosecution, the prosecution fulfills itsBrady obligation if it shares with the defendant any information it has regarding whether the personnel records contain Brady material, and then lets the defense decide for itself whether to file a Pitchess motion. In this case, this means the prosecution fulfilled its obligation when it informed defendant of what the police department had told it, namely, that the personnel records of the officers in question might contain Brady and that the officers are important witnesses.”

The Court explained that “suppression by the Government is a necessary element of a Brady claim, if the means of obtaining exculpatory evidence has been provided, the Brady claim fails.”

The Court highlighted several advantages to having a defendant use thePitchess procedure rather than the prosecutor.  The first was that in some criminal cases the credibility of a police officer witness might not be an issue in the case. In such an instance, there might be no need to bring a Pitchessmotion.  The defense is in a better position to make that determination than the prosecution.  Additionally, the defense is in a better position to know its own potential defenses, to anticipate what information might be helpful, and to be able to articulate what and why it is seeking better than the prosecution.

Brady v. Pitchess

“The Brady requirements and Pitchess procedures have long coexisted. ThePitchess scheme does not unconstitutionally trump a defendant’s right to exculpatory evidence as described in Brady.  Instead, the two schemes operate in tandem.”

“In this case, the police department has laudably established procedures to streamline the Pitchess/Brady process. It notified the prosecution, who in turn notified the defendant, that the officers’ personnel records might containBrady material. A defendant’s providing of that information to the court, (together with some explanation of how the officer’s credibility might be relevant to the proceeding,) would satisfy the showing necessary under thePitchess procedures to trigger in camera review. Moreover, as we have noted, defendants are always permitted to file their own Pitchess motion even without any indication from the police department (through the prosecution) that the records might contain Brady material and, indeed, even if, hypothetically, the prosecution had informed them that the police department had said the records do not contain Brady material. The defense is not required simply to trust the prosecution or police department but may always investigate for itself.”

The Court concluded that, “under these circumstances, permitting defendants to seek Pitchess discovery fully protects their due process right under Brady,to obtain discovery of potentially exculpatory information located in confidential personnel records. The prosecution need not do anything in these circumstances beyond providing to the defense any information it has regarding what the records might contain – in this case informing the defense of what the police department had informed it.”

Additionally, the court need not review everything in the personnel records, but only those portions that might be relevant. “When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself. [Citation.]  A law enforcement officer’s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to aPitchess motion . . . .  Documents clearly irrelevant to a defendant’s Pitchessrequest need not be presented to the trial court for in-camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.  Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the focus of decision making is to be the trial court, not the prosecution or the custodian of records.  The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchessmotion.” (Mooc, 26 Cal.4th at pp. 1228-1229.)


The Supreme Court’s decision puts to rest the debate about the exemption provision of Penal Code § 832.7(a).  That exemption solely applies when the Grand Jury, Attorney General or District Attorney is investigating a peace officer for alleged criminal conduct engaged in by the officer, at the time he was employed as an officer. (See Gremminger, supra.)  The exemption is inapplicable to the situation where a prosecutor is simply making a Bradyinquiry into an officer’s personnel file.
If a prosecutor wishes to conduct a Brady inquiry, they may do so as long as they first file and serve a Pitchess motion, together with a declaration which supports the claim that the officer’s credibility might be relevant.  If sufficient, a trial court can then conduct an in camera review of the records to determine if Brady material is present.  Based on this case, a prosecutor is not allowed to conduct an initial inspection of the file before bringing a Pitchessmotion.

The Court’s discussion of how a prosecutor may utilize the Pitchessprocedure to comply with its obligation is very important.  The Supreme Court not only described the policy of the San Francisco Police Department, to inform the District Attorney of the presence of potential Brady material in an officer’s personnel file, it referred to the effort as “laudable.”

Additionally, it attached the policy itself to its decision as an appendix.  That is as close to an endorsement of the procedure as the Supreme Court can get. In our opinion, that cannot be ignored.

It seems inescapable that there is a duty on law enforcement as a result of this case and other cases from the past, to inform prosecuting agencies when potential Brady information exists.  That can be done either by a department’s own internal policy or a joint agreement between the department and the local prosecuting agency.

The Supreme Court held in this case that where an agency informs the prosecutor of the possibility of Brady information and provides a summary of the information it has; and, where the prosecutor turns that synopsis of information over to the defense, the prosecutor has satisfied its Bradyobligation.  What the prosecutor and/or the defense do about that information matters not under Brady.

Therefore, agencies should consider adoption of a procedure for notification to the prosecution of potential Brady information as such a process may, at the very least,  provide a  measure of insurance against future Brady violation claims  and civil liability.

As always, if you would like to discuss this in more detail, please do not hesitate to contact Gregory P. Palmer, Esq. at (714) 446-1400 or at gpp@jones-mayer.com.

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