Appellate Court Says No Pitchess Motion Required to Determine if Records Contain Brady Material

Overview: A California appellate court held this week that prosecutors are entitled to direct access — without a Pitchess motion — to a peace officer’s personnel records to determine if there is any material subject to disclosure to the defense in a criminal case as required by the United States Supreme Court’s decision in Brady v. Maryland.

Training Point: If this case stands, prosecutors may routinely, and without a court order, obtain direct access to, and examine, a peace officer’s personnel records for Brady purposes. Should the prosecutor suspect the existence of Brady material, they will be required to file a Pitchess motion to have that information disclosed to the defense. It appears that this rule will apply to any criminal prosecution in which an officer is a “material,” critical or important witness. Brady requires the prosecution to disclose any “material” evidence that might assist the defense as to either guilt or penalty, and includes both exonerating evidence and impeachment of a prosecution witnesses. How each county district attorney’s office will implement this decision is yet to be determined and likely will be subject to policy guidelines in each office. This case significantly alters the Pitchess analysis and balancing of interests embodied in the law, as it is hard to see how any court will deny a prosecutor’s motion following an unrestricted review that officers have no ability to challenge.

Summary Analysis: In People v. Superior Court (Johnson), the San Francisco District Attorney was prosecuting a domestic violence case against Johnson. Two San Francisco police officers were potential witnesses in the prosecution. Pursuant to an SFPD Bureau Order, the deputy public defender determined and informed the prosecutors that the two officers had material in their personnel files that might be subject to disclosure to the defense under Brady v. Maryland.Prosecutors  filed a Pitchess motion asking the court to review the personnel records to determine if material was subject to disclosure under Brady and, if so, to disclose the material subject to a protective order. The Police Department supported the District Attorney’s motion. The trial court denied the District Attorney’s motion, finding prosecutors had not made a sufficient showing of even potential Brady “materiality” to require review of the records. The court further held that the Pitchess motion procedure did not apply to prosecutor’s efforts to review police personnel records for Brady material, and that Penal Code section 832.7(a) is unconstitutional to the extent it bars the prosecutor’s access to police officer personnel records in order to comply with Brady.

The Court of Appeal held that Penal Code section 832.7(a) does not preclude direct prosecutorial access to police officer personnel records for purposes of determining the existence of Brady material, as direct prosecution access does not constitute “disclosure” under the statute. Second, the court held that such direct prosecution access does not breach the “confidentiality” of the personnel records, as the prosecutor’s access does not risk “public disclosure,” which is what Penal Code section 832.7(a) is designed to protect against. If after reviewing the files the prosecutor believes that Brady material is subject to disclosure to the defense, the prosecutor must then file a motion under Evidence Code 1043, et seq., i.e., initiate the Pitchess process.