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California Supreme Court Resolves District Attorney’s Obligations to Produce Potentially Exculpatory Information vs. State Law Protection for Peace Officer Personnel Records

Under the United States Supreme Court’s decision in Brady v. Maryland (1963) 373 U.S. 83, District Attorneys must give accused persons information that may be favorable to the defense, including records of past misconduct involving police officers in the case. But under the California Supreme Court’s decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531, and state law implementing the Pitchess decision, police officer personnel files may be obtained only by making a motion in the Superior Court, which determines if the information is material to the case. (See Evid. Code secs. 1043, 1045)

These two rules, one federal, one state, created uncertainty as to how the state’s District Attorneys were to satisfy their obligation to produce exculpatory information contained in police officer personnel files. In a groundbreaking action, the City and County of San Francisco initiated a policy under which the San Francisco Police Department reviewed police officer personnel files and provided to the District Attorney the names of officers with records of misconduct that might be subject to disclosure under Brady. The District Attorney’s Office would then make a Pitchess motion in the Superior Court for a determination as to whether the information should be disclosed to the defense.

In People v. The Superior Court of San Francisco County, S221296, issued on July 7, 2015, the California Supreme Court upheld the San Francisco policy against a challenge brought by a criminal defendant who alleged that the District Attorney’s Office must itself review the police officer personnel records, and could not rely on the police department to do so in the first instance. The Court reversed the decisions of the Superior Court, and Court of Appeal, which had held that the District Attorney’s Office must have access to the personnel files without making a Pitchess motion. In a decision that appended, with approval, the San Francisco policy, the Court stated: “We conclude the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records.” Moreover, the Court concluded that the San Francisco policy had provided more than was required, holding that the District Attorney satisfied its obligation under Brady by informing the defense “that the specified records might contain exculpatory information” and permitting defendants to “decide for themselves whether to bring a Pitchess motion.”

The California Supreme Court’s decision clarified an area of competing interests, the rights of defendants to exculpatory information versus the rights of police officers to the confidentiality of their personnel files. The Court’s decision upheld San Francisco’s policy and included it as an exhibit which can be used as a model for other jurisdictions.