Law Enforcement Agencies Should Seek Guidance When Prosecutors Ask to Review Officer-Witness Files

Prosecutors do not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases, the California Supreme Court held recently. Rather, prosecutors must follow the same procedures that apply to criminal defendants and file a Pitchess motion to seek the protected information contained in those records. The Court also determined that the prosecution fulfills its Brady duty if it informs the defense that the police department has indicated specific records may contain exculpatory information that may provide evidence a defendant is not guilty. The prosecution need not take the further step of actually filing a Pitchess motion to obtain that information on behalf of the defendant, though prosecutors would need to file a Pitchess motion to obtain the information for themselves, if they would like to view the records.

In Superior Court of San Francisco County v. Johnson, the San Francisco Police Department, acting pursuant to established procedures, informed the San Francisco District Attorney’s office that confidential personnel records of two police officers who were potential witnesses might contain exculpatory information. Under Brady v. Maryland, prosecutors are obligated to disclose to the defense exculpatory evidence, or material evidence favorable to the defendant. Separately, Pitchess v. Superior Court allows criminal defendants to seek information contained in confidential personnel records of police officers. The Johnson Court determined that the prosecution must only inform the defense that records may contain exculpatory information to satisfy their Brady obligation. At that point, either side has the ability to file a Pitchess motion and to obtain the records after making a threshold showing that they are material to the case.

Because criminal defendants and the prosecution have an equal ability to seek information contained in confidential personnel records, and because defendants can represent their own interests and have the right to bring a Pitchess motion even if the prosecution has not done so, the prosecution is not required to bring that motion to fulfill its Brady duty. The Court further indicated that the information the Police Department has provided about potential Brady material in the records, together with some explanation of how the officers’ credibility might be relevant to the case, satisfies the threshold showing a defendant must make to trigger judicial review of records under Pitchess.

Once the Police Department informed the District Attorney that the officers’ personnel records might contain Brady material, the prosecution had a duty under Brady to provide that information to the defense. Essentially then, the Johnson Court held that the obligation does not go beyond that.

This case affirms the limits of a prosecutor’s Brady duty while emphasizing the effect a Pitchess motion can have on both parties in a criminal case. The Court indicated the prosecution can, and sometimes should, file its own Pitchess motion when the police department has advised that potential Brady material exists in the involved officers’ personnel records, but reiterated that the defense must be proactive in seeking out that information for itself. The decision reaffirms the sanctity and confidentiality of police personnel records, while also creating a bright line rule about the limits of Brady with respect to these records.

Going forward, police departments should exercise care and seek guidance when the prosecution asks to review personnel files of a police officer witness, as the prosecutor will likely have to file a Pitchess motion to obtain that information. Further, Johnson provides strong guidance to police departments about the proper policies to have in place for review and potential disclosure to prosecutors. The San Francisco Police Department has a “Brady committee” tasked with identifying potential Brady material, reviewing reports on that material, permitting comments from the affected employee and providing a recommendation to the police chief whether to disclose the employee’s name to the district attorney. Such a policy ensures the department complies with Brady, and also serves to protect the privacy of officers as much as possible. It also follows the new lesson of Johnson, that all police are required to provide to the prosecutor is the name of the officer whose personnel file contains possible Brady material.