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Pitchess Discovery Limited to Criminal Cases Involving Allegations That Officer Used Excessive Force

On Friday, April 23, 2010, a California appeals court ruled in Brown v. Valverde that motions filed pursuant to California Evidence Code section 1043 et seq. and Pitchess v. Superior Court (Pitchess motions) to request peace officer personnel records are not available in administrative per se hearings conducted by the California Department of Motor Vehicles (DMV) on driver’s license suspensions.

In addition, the court noted that Pitchess motions should be limited to criminal cases involving allegations that the officer whose records are being sought used excessive force. The court reasoned that if challenging an officer’s credibility provides a basis for obtaining the officer’s personnel records, every party in a proceeding in which an officer would be a witness could obtain the officer’s confidential personnel records by filing a Pitchess motion. Doing so, the court stated, would make the potential for discovery abuse “staggering.”

The Valverde case involved an administrative per se hearing by the California Department of Motor Vehicles (DMV) on a driver’s license suspension resulting from an arrest for driving under the influence of alcohol. The driver sought the records of the arresting CHP officer, contending that the officer fabricated evidence regarding the facts of the arrest, the field sobriety test and the circumstances surrounding the breath test. The court held that Pitchess discovery was not available for the DMV administrative per se hearing. In reaching its holding, the court relied in part on the legislative history of Evidence Code sections 1043, et seq. and Penal Code sections 832.7 and 832.8 governing Pitchess motions. The court noted that the purpose of the Pitchess legislation was to address allegations from defense attorneys that, after the Pitchess case was decided, law enforcement agencies were shredding peace officer personnel records that could be damaging, and to address allegations from law enforcement agencies that defendants were abusing the discovery process by randomly seeking police officer personnel records. The court observed that the Legislature intended to establish procedures governing Pitchess motions, and that such discovery was “limited to criminal cases involving allegations of excessive force.” The court further noted that nothing in the legislative history of the Pitchess statutes indicates an intent to increase the scope of Pitchess discovery to include all proceedings (criminal, civil or administrative) in which the moving party claims that the records are relevant to any issue, “such as the officer’s credibility.”

The language of this case is good news for law enforcement agencies, many of whom have been served with Pitchess motions seeking broad categories of police officer personnel records based on allegations not involving excessive force. In many cases, criminal defendants have sought access to police officer personnel records based solely on a denial of information contained in the police report. Defense attorneys have seemingly used the Pitchess process for “fishing expeditions” to determine if there is any information in an officer’s personnel files that might undermine his or her credibility or otherwise be damaging or embarrassing to the officer and/or the police department. The reasoning in the Brown v. Valverde case may help curtail future such discovery abuses, and help restore the careful balance that the Legislature intended between defendants’ right to mount a vigorous defense and police officers’ right to keep their personnel records confidential.

While the discussion in Valverde is helpful to law enforcement agencies, given the potential impact of the decision on Pitchess practice, we expect that review may be sought. We will continue to monitor this case and provide updates on any developments as they occur. For more information on Brown v. Valverde case or other Pitchess matters, please contact Eric Danly or Nancy Thorington at 800.464.3559.