CITY OF LOS ANGELES, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JEREMY BRANDON, Real Party in Interest.
No. S093628
Supreme Court of California
Aug. 26, 2002.
1
James K. Hahn and Rockard J. Delgadillo, City Attorneys, Cecil W. Marr, Assistant City Attorney, and Julie S. Raffish, Deputy City Attorney, for Petitioner.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Laura Whitcomb Halgren and Gary W. Schons, Assistant Attorneys General, for the Attorney General of the State of California as Amicus Curiae on behalf of Petitioner.
Diane Marchant for Los Angeles Police Protective League as Amicus Curiae on behalf of Petitioner.
Jones & Mayer and Paul R. Coble for California State Sheriffs’ Association, California Police Chiefs’ Association and California Peace Officers’ Association as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Richard Leonard for Real Party in Interest.
Michael P. Judge, Public Defender, Albert J. Menaster and Mark G. Harvis, Deputy Public Defenders, for Los Angeles County Public Defender as Amicus Curiae on behalf of Real Party in Interest.
OPINION
KENNARD, J.—Defendant Jeremy Brandon, who was charged with sexually molesting a seven-year-old boy, sought discovery of certain information in the personnel records of the two arresting officers. The trial court reviewed the materials in chambers and, as relevant here, ordered the disclosure of a citizen complaint filed against one of the officers 10 years before the arrest in this case. Although
We reverse the judgment of the Court of Appeal.
I. FACTS AND PROCEDURAL BACKGROUND
On February 1, 2000, two Los Angeles police officers arrested defendant for the sexual molestation of a seven-year-old child that had occurred earlier that day. The district attorney charged defendant with lewd conduct on a child under age 14 (
The district attorney did not respond to the motion. But the LAPD‘s custodian of records brought to the superior court, for review in chambers, materials from the personnel files of both officers. These materials included an internal report regarding a 1996 complaint against Officer C., alleging that he had failed to report a fellow officer‘s assault on a prisoner. The 1996 report made reference to a 1990 incident involving Officer C.‘s failure to report the improper use of mace by a partner officer. The superior court found the information about both the 1996 and the 1990 incidents “relevant” to defendant‘s case, and ordered the LAPD‘s custodian of records to provide to the defense the names, addresses, and telephone numbers of the complainants and witnesses for the two incidents.
The City of Los Angeles (City), representing the LAPD, sought reconsideration, contending the 1990 complaint predated the arrest in this case by 10 years and thus fell outside the scope of
The City challenged that ruling in a petition for writ of mandate filed in the Court of Appeal. After issuing an alternative writ and staying enforcement of the superior court‘s disclosure order, the Court of Appeal ordered
II. CONTROLLING LEGAL PRINCIPLES
We here consider the interplay between the United States Supreme Court‘s 1963 decision in Brady, supra, 373 U.S. 83, and California‘s statutory discovery procedures enacted after this court‘s 1974 decision in Pitchess, supra, 11 Cal.3d 531. In Brady, the high court announced a rule, founded on the due process guarantee of the federal Constitution, that requires the prosecution to disclose evidence that is favorable and “material” to the defense. Under California law, the procedures that the Legislature enacted to codify our Pitchess decision allow defendants access to certain information in the arresting officer‘s personnel records that is “material” to their defense. Although Brady and Pitchess both require disclosure of material evidence, they employ different standards of materiality.
A. Brady Disclosure
Under Brady, supra, 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-1197], the prosecution must disclose to the defense any evidence that is “favorable to the accused” and is “material” on the issue of either guilt or punishment. Failure to do so violates the accused‘s constitutional right to due process. (Id. at pp. 86-87 [83 S.Ct. at p. 1196].) Evidence is material under the Brady standard “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been
Because the Brady rule encompasses evidence “known only to police investigators and not to the prosecutor,” it is incumbent upon the prosecutor to learn of any favorable evidence “known to the others acting on the government‘s behalf in [a] case, including the police.” (Kyles v. Whitley (1995) 514 U.S. 419, 437-438 [115 S.Ct. 1555, 1567-1568, 131 L.Ed.2d 490]; see In re Brown (1998) 17 Cal.4th 873, 879, fn. 3 [72 Cal.Rptr.2d 698, 952 P.2d 715], and cases cited therein.) The prosecution‘s disclosure duty under Brady applies even without a request by the accused; it pertains not only to exculpatory evidence but also to impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 280-281 [119 S.Ct. 1936, 1948, 144 L.Ed.2d 286]; United States v. Bagley, supra, 473 U.S. at p. 676 [105 S.Ct. at p. 3380]; United States v. Agurs, supra, 427 U.S. at p. 107 [96 S.Ct. at p. 2399].)
Closely related to the Brady rule requiring the prosecution to disclose material evidence favorable to the defense is the prosecution‘s obligation to retain evidence. With respect to retention, however, the prosecution‘s obligation is narrower. Its failure to retain evidence violates due process only when that evidence “might be expected to play a significant role in the suspect‘s defense,” and has “exculpatory value [that is] apparent before [it is] destroyed.” (California v. Trombetta (1984) 467 U.S. 479, 488-489 [104 S.Ct. 2528, 2534, 81 L.Ed.2d 413].) In that regard, the mere “possibility” that information in the prosecution‘s possession may ultimately prove exculpatory “is not enough to satisfy the standard of constitutional materiality.” (Arizona v. Youngblood (1988) 488 U.S. 51, 56 [109 S.Ct. 333, 336, 102 L.Ed.2d 281], fn. *.) And whereas under Brady, supra, 373 U.S. 83, the good or bad faith of the prosecution is irrelevant when it fails to disclose to the defendant material exculpatory evidence (id. at p. 87 [83 S.Ct. at pp. 1196-1197]), a different standard applies when the prosecution fails to retain evidence that is potentially useful to the defense. In the latter situation, there is no due process violation unless the accused can show bad faith by the government. (Arizona v. Youngblood, supra, 488 U.S. at p. 58 [109 S.Ct. at pp. 337-338].)
B. Pitchess Disclosure
In 1974, we held in Pitchess, supra, 11 Cal.3d 531, that a defendant charged with battery on four Los Angeles County Sheriff‘s deputies could,
Four years after we articulated this “judicially created doctrine” (Pitchess, supra, 11 Cal.3d at p. 535), the California Legislature “codified the privileges and procedures surrounding what had come to be known as ’Pitchess motions’ . . . through the enactment of
We went on to say: “A finding of ‘good cause’ under
We then observed that
We further noted: “The relatively low threshold for discovery embodied in
Unlike the high court‘s constitutional materiality standard in Brady, which tests whether evidence is material to the fairness of trial, a defendant seeking Pitchess disclosure must, under statutory law, make a threshold showing of “materiality.” (
III. DISCUSSION
A. Constitutionality of Section 1045‘s Five-year Limitation Upon Disclosure
As discussed earlier, the high court in Brady, supra, 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-1197], held that an accused is denied due process when the prosecution fails to disclose to the defense evidence that is favorable to the defendant and material on the issue of guilt. Our statutory scheme does not require disclosure of complaints of police officer misconduct that occurred more than five years before the crime with which the defendant is charged. Defendant here contends that
To prevail on his constitutional claim, defendant carries a heavy burden. “The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions
We are not persuaded that fundamental principles of justice are implicated by
The Pitchess procedures not only require law enforcement agencies to compile citizen complaints, but they also contemplate the destruction of such complaints after five years. (
A law enforcement agency‘s destruction of a citizen‘s complaint violates a defendant‘s right to due process only when the complaint‘s exculpatory
Just as due process does not prohibit a law enforcement agency from destroying records of citizen complaints that are more than five years old and whose exculpatory value to a specific case is not readily apparent,
In holding that routine record destruction after five years does not deny defendants due process, we do not suggest that a prosecutor who discovers facts underlying an old complaint of officer misconduct, records of which have been destroyed, has no Brady disclosure obligation. At oral argument, the Attorney General, appearing as amicus curiae on behalf of the City, agreed that, regardless of whether records have been destroyed, the prosecutor still has a duty to seek and assess such information and to disclose it if it is constitutionally material.2
We also reject defendant‘s contention that
The dissent charges the majority with not addressing the “issue of destroying sustained citizen complaints.” (Dis. opn., post, at p. 27.) It reasons that a sustained complaint, which contains an allegation of officer misconduct that the employing police agency has found true, possesses “exculpatory value to any particular case in which that officer is a material witness.” (Id. at p. 28.) In the dissent‘s view, the systematic destruction of five-year-old sustained citizen complaints by an employing police agency violates the due process rights of unknown future defendants against whom the officer may someday testify. We disagree. As the high court explained in California v. Trombetta, supra, 467 U.S. 479, 489 [104 S.Ct. 2528, 2534], due process is implicated by the prosecution‘s failure to retain evidence only when the exculpatory value of that evidence to a specific defendant is apparent before the evidence is destroyed.
Some of the dissent‘s disagreement with the majority reflects a basic misunderstanding of the workings of the statutory Pitchess discovery scheme. For instance, the dissent asserts that a citizen complaint might not be available for discovery until “well after the five-year period begins to run,” because of delay caused by investigation and by provisions in the
B. Brady Disclosure of Citizen Complaints over Five Years Old
The trial court here ordered discovery of the names and addresses of witnesses to an incident of police misconduct that predated the arrest in this case by “more than five years.” (
The City argues that permitting in-chambers review of police officer personnel records to determine whether they contain information that qualifies as material evidence under Brady, supra, 373 U.S. 83, would improperly expand the disclosure of officer personnel records “far beyond the disclosure” permitted by
The Attorney General, appearing as amicus curiae, advances a different view, which we find persuasive. The Attorney General asserts that the “’Pitchess process’ operates in parallel with Brady and does not prohibit the disclosure of Brady information.” We agree. As we recently explained in People v. Mooc (2001) 26 Cal.4th 1216 [114 Cal.Rptr.2d 482, 36 P.3d 21], the Pitchess “procedural mechanism for criminal defense discovery . . . must be viewed against the larger background of the prosecution‘s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant‘s right to a fair trial.” (Id. at p. 1225.) In the Attorney General‘s view, citizen complaints older than five years that the trial court after in-chambers review finds to be “‘exculpatory,’ as defined by Brady,” may be subject to disclosure, notwithstanding the five-year limitation in
The Attorney General points to the United States Supreme Court‘s decision in Pennsylvania v. Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989, 94 L.Ed.2d 40] (Ritchie), as authorizing trial court review of information that (like police officer personnel records) enjoys a “qualified statutory confidentiality” to determine whether it includes material exculpatory evidence subject to disclosure under Brady, supra, 373 U.S. 83.
In Ritchie, the defendant, who was charged with molesting his 13-year-old daughter, sought disclosure of confidential reports of the protective services agency that had investigated the charges. A state appellate court directed the trial court to review the file in chambers, disclose the daughter‘s statements about the incidents, and allow defense counsel access to the full file for the
The high court noted that Pennsylvania law contemplated situations when disclosure of the privileged information would occur, such as when the protective services agency was “directed to do so by court order.” (Ritchie, supra, 480 U.S. at p. 58 [107 S.Ct. at p. 1001].) Thus, Ritchie was “entitled to have the [protective services agency] file reviewed by the trial court” to ascertain whether it contained evidence that “probably would have changed the outcome of [Ritchie‘s] trial.” (Ibid.) The court stressed, however, that Ritchie could not “require the trial court to search through the [agency‘s] file without first establishing a basis for his claim that it contains material evidence” (id. at p. 58, fn. 15 [107 S.Ct. at p. 1002], italics added), that is, evidence that could determine the trial‘s outcome, thus satisfying the materiality standard of Brady, supra, 373 U.S. 83.
We find the high court‘s decision in Ritchie, supra, 480 U.S. 39, instructive here, where we must determine the propriety of the trial court‘s order made after an in-chambers review of the confidential personnel files of two arresting officers, directing disclosure of information regarding a citizen complaint made against one of them 10 years earlier. Under Ritchie, a trial court that in response to a criminal defendant‘s discovery motion undertakes an in-chambers review of confidential documents can, if the documents contain information whose use at trial could be dispositive on either guilt or punishment, order their disclosure. (Ibid.) This standard was not met here, as discussed below.3
C. Brady and Disclosure of the 1990 Complaint
The Court of Appeal here concluded that applying
Based on defendant‘s assertion that his defense “may” be that the two arresting officers had coached witnesses to fabricate evidence of child molestation against him, the trial court, after an in-chambers review of the personnel files of the two officers, ordered disclosure of the names and addresses of witnesses to an incident 10 years earlier, when Officer C. failed to report another officer‘s improper use of mace on a suspect. Officer C.‘s failure to report his partner‘s use of mace cannot be considered constitutionally material to the charge in this case of lewd conduct on a seven-year-old boy. In other words, it is not reasonably probable that a 10-year-old complaint of failing to report another officer‘s improper use of mace would alter the outcome of defendant‘s trial. (See Ritchie, supra, 480 U.S. at p. 57 [107 S.Ct. at p. 1001].)
It is undisputed that materials that “may be used to impeach a witness” fall within the class of information subject to Brady because impeachment information affects the fairness of trial. (Strickler v. Greene, supra, 527 U.S. at p. 282, fn. 21 [119 S.Ct. at p. 1948]; see United States v. Ruiz (2002) 536 U.S. 622 [122 S.Ct. 2450, 153 L.Ed.2d 586].)
In this case Officer C.‘s general veracity was called into question by the 1990 finding that he failed to report a fellow officer‘s use of mace, after denying the incident had occurred. Nonetheless, that dereliction—failure to report misconduct by a fellow officer—was similar in kind to the disclosed incident in 1996 when Officer C. failed to report an assault on a prisoner by a fellow officer. Neither incident involved coaching witnesses to fabricate evidence.
Because in this case the 10-year-old complaint is not material evidence under the high court‘s decision in Brady, supra, 373 U.S. 83, and is not discoverable evidence under California‘s Pitchess statutory scheme, as it is more than five years old (
DISPOSITION
The judgment of the Court of Appeal is reversed. We direct the Court of Appeal to issue a peremptory writ of mandate ordering the trial court not to
George, C. J., Baxter, J., Werdegar, J., and Chin, J., concurred.
BROWN, J., Concurring.—I agree with the majority that the 1990 complaint against Officer C. does not meet the materiality standard set forth in Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady) (maj. opn., ante, at pp. 15-16), but I reject the conclusion (id. at pp. 14-15) that a pretrial discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess) and
The majority relies on Pennsylvania v. Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989, 94 L.Ed.2d 40] (Ritchie). (Maj. opn., ante, at pp. 14-15.) That case involved confidential records that were not available to the prosecution, and hence the prosecution had no means to meet its Brady obligation with respect to those records. (Ritchie, at p. 57 [107 S.Ct. at p. 1001].) In that context, the high court approved a procedure, based on Pennsylvania law, whereby the trial court reviewed the records in chambers for Brady material. (Ritchie, at pp. 58-61 [107 S.Ct. at pp. 1001-1003].) The majority is correct that peace officer personnel records, like the records at issue in Ritchie, are generally confidential (
More important, the high court in Ritchie noted that a criminal defendant “may not require the trial court to search through [a confidential] file without first establishing a basis for his claim that it contains material evidence.” (Ritchie, supra, 480 U.S. at p. 58, fn. 15 [107 S.Ct. at p. 1002], italics added.) In other words, the defendant may not simply fish for evidence; he must have reason to believe the confidential records actually contain material evidence. This case, in contrast, demonstrates the very slight showing
Here, the trial court ordered disclosure, pursuant to Brady, of confidential information that was not subject to disclosure under Pitchess or
For these reasons, I cannot adopt the majority‘s analysis, but I concur in the result.
MORENO, J., Dissenting.—The court today upholds two related portions of the statutory scheme that governs the discovery of citizen complaints against peace officers: (1)
I.
Pitchess Scheme Background
In 1974, our Legislature enacted
In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83 [260 Cal.Rptr. 520, 776 P.2d 222] (City of Santa Cruz), we stated that the Pitchess scheme was a “veritable model of clarity and balance.” While this may have been true in 1989, in daily trial practice, the Pitchess pendulum has swung too far in favor of police privacy rights and against the disclosure of relevant evidence.
A. Pitchess Hurdles
Before Pitchess discovery is allowed, the defendant must submit an affidavit showing good cause for the discovery sought that sets forth the materiality of such discovery to the subject matter in the pending litigation. (
“[I]n determining [the] relevance” of those documents that are brought to the in-chambers hearing, the trial court, which has wide discretion, “shall
As of 1998, a citizen complaint, or any portion of a complaint that is determined by the police officer‘s employing agency to be frivolous, unfounded, or exonerated is removed from the officer‘s general personnel file and kept in a separate file designated by the police agency. (
In addition, the court “shall” issue a protective order that any disclosure be limited to the pending litigation. (
Once disclosure is authorized, the defendant does not receive the citizen complaint or any report prepared investigating such complaint. Instead, discovery is limited to the names, addresses and telephone numbers of complainants and witnesses. As we stated in City of Santa Cruz: “As a further safeguard, moreover, the courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead (as the municipal court directed here) that the agency reveal only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question.” (City of Santa Cruz, supra, 49 Cal.3d at p. 84.)
The Pitchess procedure is the sole and exclusive means by which citizen complaints may be obtained. Recent decisions have rejected attempts to use other discovery procedures to obtain Pitchess records. For example, in Garden Grove Police Department v. Superior Court (2001) 89 Cal.App.4th 430 [107 Cal.Rptr.2d 642] (Garden Grove), the trial court granted a defense request for three officers to disclose their birth dates so that the prosecutor could conduct a criminal records check. The trial court based its order on
In California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010 [101 Cal.Rptr.2d 379] (Highway Patrol), the trial court ordered production of certain documents from two officers’ personnel records, pursuant to People v. Wheeler (1992) 4 Cal.4th 284, 295-297 [14 Cal.Rptr.2d 418, 841 P.2d 938] (Wheeler), where we held that nonfelony conduct involving moral turpitude is admissible to impeach a witness in a criminal case. The Court of Appeal reversed. It stated: “To grant discovery of peace officer personnel records on the basis that Wheeler permits discovery of all personnel records reflecting officer misconduct involving moral turpitude, without requiring defendant to comply with the good cause requirement of
Unless they are directly investigating the police officer, prosecutors, like defense attorneys, do not have any means independent of Pitchess to obtain police officer personnel records. As stated in City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1144, footnote 5 [79 Cal.Rptr.2d 624]: “[W]here the People seek discovery of the peace officer personnel records . . . the district attorney is not exempted under the provisions of
Specifically, peace officers are protected by the Public Safety Officer‘s Procedural Bill of Rights Act (
II.
The Majority Opinion
A. Evidence Code Section 1045, Subdivision (b)(1)
Against this backdrop, the majority first concludes that
But the high court has made clear that “[T]he right to present relevant testimony is not without limitation. The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.‘” [Citations.] We have explained, for example, that “trial judges retain wide latitude” to limit reasonably a defendant‘s right to cross-examine a witness . . . [But] [r]estrictions on a criminal defendant‘s rights to confront adverse witnesses and to present evidence may not be “arbitrary or disproportionate to the purposes they are designed to serve.” (Michigan v. Lucas (1991) 500 U.S. 145, 149-151 [111 S.Ct. 1743, 1746-1747, 114 L.Ed.2d 205].) “In applying its evidentiary rules a State must evaluate whether the interests served by the rule justify the limitation imposed. . . .” (Rock v. Arkansas (1987) 483 U.S. 44, 56 [107 S.Ct. 2704, 2711, 97 L.Ed.2d 37].)
The question before this court, then, is what interests are served by a rule that justifies the limitation imposed, here, the per se nondisclosure of citizen complaints older than five years. In Mooc, we justified this limitation in the Pitchess scheme in the following manner: ”Pitchess . . . and its statutory progeny are based on the premise that evidence contained in a law enforcement officer‘s personnel file may be relevant to an accused‘s criminal defense and that to withhold such relevant evidence from the defendant would violate the accused‘s due process right to a fair trial. [The statutory scheme] also recognize[s] that the officer in question has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily. . . . In this manner the Legislature has attempted to protect the defendant‘s right to a fair trial and the officer‘s interest in
There are two ways to interpret this pronouncement in Mooc. Under the first interpretation, the five-year nondisclosure rule appears to assume that conduct described in a citizen complaint that is one day older than five years is irrelevant to a prosecution. The majority suggests this may be the case: “The . . . five-year period[] may well reflect legislative recognition that after five years a citizen‘s complaint of officer misconduct has lost considerable relevance.” (Maj. opn., ante, at p. 11.)
However, prior acts of dishonesty, as alleged here, have probative value where officer credibility is an issue, even when such acts are older than five years, and especially where there are multiple incidents of dishonesty. As seen in Wheeler, supra, 4 Cal.4th at pages 295-297, nonfelony conduct involving moral turpitude is ordinarily admissible to impeach any other type of witness in a criminal trial, subject only to the court‘s discretion under
Thus the five-year limitation is invalid for two reasons: (1) it exalts police officer testimony over all other witness testimony since relevant impeachment evidence can be excluded, as to police officers only, solely on the basis of the age of the evidence; and (2) it establishes an arbitrary limit on discovery that is unrelated to the materiality of the evidence. For example, where the prosecution is for resisting arrest, a sustained citizen complaint against the arresting officer for excessive force that occurred four years 11 months and 30 days ago has the same relevance as a second sustained complaint against the same officer for excessive force that occurred five years and one day earlier, yet the complaint that is five years and one day old is excluded from discovery.
Under the second interpretation of our pronouncement in Mooc, we assume that the Legislature knew that the five-year rule would exclude relevant evidence. In such a case, the rule must not be disproportionate to the purpose it is designed to serve; namely, protecting the officer‘s privacy interest in the nondisclosure of his personnel records. (See Mooc, supra, 26 Cal.4th at p. 1227.) No one would dispute that much of what is contained in a police officer‘s personnel file is entitled to great privacy; under Mooc, however, irrelevant personnel documents are removed by the custodian of records before the in-chambers review. The custodian brings to court only documents that are “‘potentially relevant.‘” (Id. at p. 1229.)
The potentially relevant documents sought in a Pitchess motion include citizen complaints of officer misconduct that the officer‘s own agency has
An officer‘s interest in shielding this type of document from public view is arguably illegitimate. The state, too, has no legitimate reason to prohibit the disclosure of a sustained citizen complaint. Certainly, any legitimate interest in destroying such a document is disproportionate to the purpose it is designed to serve. On balance then, any privacy interest an officer, his police agency, or the state has in the nondisclosure of a sustained citizen complaint must yield to the defendant‘s constitutional right to effectively cross-examine a prosecution witness with relevant impeachment evidence.
Davis, supra, 415 U.S. 308, is on point. There, the defendant was on trial for stealing a safe. The key prosecution witness was a juvenile who was on probation for burglary. The defense sought to impeach the juvenile with his burglary probation to show his bias, prejudice and motive to lie. (Id. at p. 311 [94 S.Ct. at pp. 1107-1108].) The state claimed such impeachment would conflict with its asserted interest in preserving the confidentiality of juvenile adjudications of delinquency. (Id. at p. 309 [94 S.Ct. at p. 1107].) The Alaska Supreme Court agreed with the state, but the high court reversed: “The State‘s policy interest in protecting the confidentiality of a juvenile offender‘s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State
The principles announced in Davis control here. Any privacy right an officer has in the confidentiality of a sustained citizen complaint “cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” (Davis, supra, 415 U.S. at p. 320 [94 S.Ct. at p. 1112].)
B. Brady Considerations in Light of Penal Code Section 832.5
The majority counters the above argument by holding that the Pitchess process operates in parallel with Brady, and that citizen complaints older than five years that the superior court finds to be exculpatory, as defined by Brady, after in-chambers review, may be subject to disclosure, “notwithstanding the five-year limitation” in
While this holding may be tenable in theory, the majority ignores the stark reality that, as a practical matter, there will be no document older than five years available for an in-chambers review. This is so because the majority also upholds the leg of the Pitchess scheme (
Citing Trombetta, supra, 467 U.S. at page 488 [104 S.Ct. at page 2534], the majority concludes that such destruction does not violate due process because “[a] law enforcement agency‘s destruction of a citizen‘s complaint violates a defendant‘s right to due process only when the complaint‘s exculpatory value to a particular criminal case is readily apparent before its destruction. [Citation.] The mere ‘possibility’ that the complaint might be exculpatory in some future case is insufficient. [Citation.] Unless there is bad faith by the law enforcement agency, the destruction of records does not implicate a defendant‘s constitutional right to a fair trial. . . .” (Maj. opn., ante, at pp. 11-12.) The majority concludes that the “routine destruction [of
I disagree. Trombetta addressed the issue of “the government‘s duty to take affirmative steps to preserve [physical] evidence . . . destroyed through prosecutorial neglect or oversight” (Trombetta, supra, 467 U.S. at p. 486 [104 S.Ct. at p. 2533]), in the specific context of whether the police were required to preserve breath samples in order to introduce an Intoxilyzer (breath-analysis) test. (Id. at p. 481 [104 S.Ct. at p. 2530].) The high court stated that the states’ duty to preserve evidence “must be limited to evidence that might be expected to play a significant role in the suspect‘s defense. To meet this standard of constitutional materiality, [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at pp. 488-489 [104 S.Ct. at p. 2534], fn. omitted.)
Because the respondents sought to challenge the Intoxilyzer results, the high court concluded the breath samples themselves were of marginal relevance. (Trombetta, supra, 467 U.S. at p. 489 [104 S.Ct. at p. 2534].) First, the Intoxilyzer was routinely checked and two independent breath measurements were taken. (Id. at p. 490 [104 S.Ct. at pp. 2534-2535].) Moreover, the respondents had “alternate means” of demonstrating how the Intoxilyzer might malfunction, such as faulty calibration, extraneous interference with machine measurement, or operator error. (Ibid.) The high court thus held there was no constitutional error in the destruction of the breath samples.
Arizona v. Youngblood (1988) 488 U.S. 51 [109 S.Ct. 333, 102 L.Ed.2d 281] (Youngblood) addressed the negligent failure of police to preserve physical evidence “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Id. at p. 57 [109 S.Ct. at p. 337].) In this instance, the high court held that there is no due process violation unless the defendant could show bad faith on the part of the police. (Id. at p. 58 [109 S.Ct. at p. 337].)
Both Trombetta and Youngblood are inapposite to the instant case. Under the Pitchess scheme, our state systematically destroys relevant evidence contained in sustained citizen complaints that “might be expected to play a significant role in the suspect‘s defense.” (Trombetta, supra, 467 U.S. at p. 488 [104 S.Ct. at p. 2533].) Moreover, once a sustained citizen complaint is destroyed, there is no alternate means of obtaining comparable evidence. In this manner too, the Pitchess scheme fails the Trombetta test.
The majority does not address the specific issue of destroying sustained citizen complaints. The majority concludes (maj. opn., ante, at p. 12) that
Moreover, recent Court of Appeal pronouncements have made it clear that prosecutors and defense attorneys cannot invoke Brady, Wheeler, or
As we stated in In re Brown (1998) 17 Cal.4th 873, 879-880 [72 Cal.Rptr.2d 698, 952 P.2d 715]: “Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request (id. at p. 87 [83 S.Ct. at pp. 1196-1197]), a general request, or none at all (United States v. Agurs (1976) 427 U.S. 97, 107 [96 S.Ct. 2392, 2399, 49 L.Ed.2d 342] . . .). The scope of this disclosure obligation extends beyond the contents of the prosecutor‘s case file and encompasses the duty to ascertain as well as divulge ‘any favorable evidence
“As a concomitant of this duty, any favorable evidence known to the others acting on the government‘s behalf is imputed to the prosecution. . . . The Supreme Court recently reiterated this principle: ‘whether the prosecutor succeeds or fails in meeting this obligation [to learn of favorable evidence] (whether, that is, a failure to disclose is in good faith or bad faith, [citation]), the prosecution‘s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.’ (Kyles, supra, 514 U.S. at pp. 437-438 [115 S.Ct. at pp. 1567-1568].)” (Fn. omitted.)
Even though police agencies have dominion and control over sustained citizen complaints, the prosecutor, as spokesperson for the government, is required under Brady to disclose the same.
C. Pennsylvania v. Ritchie
The majority further seeks to support its Brady/Pitchess interpretation by pointing to the high court decision in Pennsylvania v. Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989, 94 L.Ed.2d 40] (Ritchie) “as authorizing trial court review of information that (like police officer personnel records) enjoys a
Ritchie, however, did not address the situation present here, where police agencies can destroy any relevant and material Pitchess document older than five years. And as such documents are systematically destroyed, the Ritchie scheme is effectively nullified because there is no method by which an in-chambers review can be conducted. The majority thus leaves the prosecutor in a classic Catch-22 situation: he is obligated to turn over documents that no longer exist. This constitutes a violation of Brady, the right to confront and cross-examine witnesses and the right to due process.6
D. The 1990 Citizen Complaint Was Material
Finally, the majority concludes that the 10-year-old citizen complaint was not Brady material: “Officer C.‘s general veracity was called into question by the 1990 [incident], after denying the incident had occurred. Nonetheless, that dereliction—failure to report misconduct by a fellow officer—was similar in kind to the disclosed incident in 1996 when Officer C. failed to report an assault on a prisoner by a fellow officer. Neither incident involved coaching witnesses to fabricate evidence.” (Maj. opn., ante, at p. 16.)
I disagree. Not only did the officer fail to report these two incidents, it was noted by the Court of Appeal that the officer‘s own agency found that he lied when he claimed these two incidents did not occur. Such conduct is not simply a case of “failure to report misconduct,” but more aptly a case of
III.
Conclusion
I do not believe that my proposed holding would burden trial courts or police agencies in their handling of Pitchess disclosure motions. As noted, the Pitchess scheme contains several protections that insulate a police officer‘s personnel records from disclosure. Moreover, even in the absence of the two 5-year rules, police officers are still afforded protection against the disclosure of stale information under
The vast majority of law enforcement officers do their job remarkably well under adverse conditions. But the public‘s confidence in its police force wanes with each new revelation of misconduct. The Pitchess scheme feeds this distrust because proven instances of officer misconduct are buried from public view. Ironically, jurors are routinely asked before a trial whether they can judge the credibility of police officer witnesses the same as any other witness who testifies. Yet the Legislature has enacted a scheme, ratified by the majority, that exalts police officers over all other witnesses who have committed misconduct. The latter are subject to Wheeler, but in the name of “privacy,” officers who have committed misconduct are presented to the trier of fact without this crucial impeachment evidence. The arbitrary destruction of this relevant evidence violates Brady, the constitutional right to confront and cross-examine witnesses, and the constitutional right to due process.
I respectfully dissent.