Minnehaha County Sheriff Mike MILSTEAD, Appellant, and State of South Dakota, Appellant, v. Emily Lou SMITH, Appellee.
No. 27321.
Supreme Court of South Dakota.
Decided July 27, 2016.
2016 S.D. 55 | 883 N.W.2d 711
Argued on Oct. 5, 2015.
Aaron McGowan, Minnehaha County State‘s Attorney, Matthew J. Abel, Minnehaha County Deputy State‘s Attorney, Sioux Falls, South Dakota, Attorneys for appellant, State of South Dakota.
Beau J. Blouin, Minnehaha County Public Defender‘s Office, Sioux Falls, South Dakota, Attorneys for appellee, Emily Lou Smith.
KERN, Justice.
[¶ 1.] Defendant was arrested and charged with several offenses, including three counts of simple assault against a law enforcement officer. Defendant served a subpoena duces tecum on the county sheriff requesting “[a]ll disciplinary records/reprimands/complaints” contained within the arresting officer‘s personnel file. The sheriff filed a motion to quash the subpoena, which the circuit court denied in part. The court ordered the sheriff to produce portions of the arresting officer‘s personnel records from the past five years for in camera review. We granted the sheriff‘s petition for an intermediate appeal from the circuit court‘s order. We reverse.
[¶ 2.] Minnehaha County Deputy Sheriff Adam Zishka arrested Emily Lou Smith on September 30, 2014. She was later indicted for several offenses, including three counts of simple assault against a law enforcement officer. In October 2014, Smith served a subpoena duces tecum on Minnehaha County Sheriff Mike Milstead requesting production of “[a]ll disciplinary records/reprimands/complaints in regard to Deputy Adam Zishka from the Minnehaha County Sheriff([‘s] Department.”1
[¶ 3.] On January 6, 2015, Sheriff Milstead filed a motion to quash the subpoena, arguing it was “unreasonable and oppressive.” The court held a motions hearing on January 13, 2015. A Minnehaha County deputy state‘s attorney from the civil division represented Sheriff Milstead and a deputy state‘s attorney from the criminal division represented the State. Smith argued that access to the requested records was necessary for effective cross-examination under the Sixth Amendment of the United States Constitution in order to present her theory of the case. She informed the court that she did not claim to have acted in self-defense. Rather, she contended that Deputy Zishka used excessive force against her during the arrest. Both parties urged the circuit court, when ruling on the motion to quash, to apply a test that would analyze the relevancy, admissibility, and specificity of the records. In regard to specificity, Sheriff Milstead argued that the subpoena was overbroad and was a “fishing expedition.” Sheriff Milstead also argued that, even if produced, the evidence would be inadmissible under the rules of evidence.
[¶ 4.] The circuit court denied in part Sheriff Milstead‘s motion to quash the subpoena. The court ordered Sheriff Milstead to produce “all of Deputy Zishka‘s personnel records which contain ‘disciplinary records, reprimands, and/or complaints’ for ... an in camera review.” Finding that the subpoena “lack[ed] specificity” and was “not narrowly tailored,” the court limited the production to records generated within the last five years.
[¶ 5.] On January 19, 2015, Sheriff Milstead petitioned this Court for an intermediate appeal from the circuit court‘s order. We granted the request on April 6, 2015. The State, through the Minnehaha County State‘s Attorney‘s Office, filed a brief in support of Sheriff Milstead‘s position.
[¶ 6.] On appeal, Sheriff Milstead raises two issues:
Whether the circuit court erred in holding that a law enforcement officer‘s personnel file is discoverable under SDCL 23A-14-5 (Rule 17(c)).- Whether the circuit court erred in ordering an in camera review of Deputy Zishka‘s personnel file, including disciplinary records, complaints, and reprimands from the last five years.
Standard of Review
[¶ 7.] Ordinarily, “[w]e review the [circuit] court‘s rulings on discovery matters under an abuse of discretion standard.” Anderson v. Keller, 2007 S.D. 89, ¶ 5, 739 N.W.2d 35, 37. However, the question whether the circuit court erred when it interpreted
Analysis
1. Whether the circuit court erred in holding that a law enforcement officer‘s personnel file is discoverable under
[¶ 8.] The question whether a law enforcement officer‘s personnel records are subject to discovery in a criminal prosecution is a question of first impression before this Court.2 Smith contends that these records, although confidential, are relevant to the primary issue in this case: “whether Deputy Zishka or Smith was the true aggressor.” The records, she also argues, are necessary to present her defense and fully cross-examine the State‘s witnesses.
[¶ 9.] South Dakota lacks detailed legislation specific to the production of law enforcement personnel records.3 Accordingly, we look to statutes addressing personnel records generally and the constitutional principles involved in production of confidential materials.
[¶ 11.] In Davis, the Court held that a defendant‘s right to effective cross-examination under the Confrontation Clause required that a defendant be able to question an adverse witness regarding the witness‘s confidential juvenile record. 415 U.S. at 309, 94 S.Ct. at 1107. The Court stated, “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.” Id. at 320, 94 S.Ct. at 1112.
[¶ 12.] Similarly, in Ritchie, the Court considered “whether and to what extent a State‘s interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant‘s Sixth and Fourteenth Amendment right to discover favorable evidence.” 480 U.S. at 42-43, 107 S.Ct. at 993-94. Ritchie was charged with the rape of his minor child and had subpoenaed a file held by Child and Youth Services (CYS) containing information about the charge and other records. CYS refused to produce the records, even for an in camera review, arguing that they were privileged under Pennsylvania law. The Ritchie Court held that the Confrontation Clause does not create “a constitutionally compelled rule of pretrial discovery.” Id. at 52, 107 S.Ct. at 999. Instead, it affords criminal defendants two specific protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Id. at 51, 107 S.Ct. at 998.
[¶ 13.] Although the Confrontation Clause provides individuals with “the right to cross-examine those who testify against” them, it is well recognized “that the right to cross-examine is not absolute.” Karlen, 1999 S.D. 12, ¶¶ 37-38, 589 N.W.2d 594, 602 (citing Ritchie, 480 U.S. at 53, 107 S.Ct. at 999). An individual is only guaranteed “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Ritchie, 480 U.S. at 53, 107 S.Ct. at 999 (emphasis added) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985)). The Court recognized the strong “public interest in protecting this type of sensitive information” but also noted that such interest does not necessarily prevent disclosure in all
[E]vidence is material only if there is a reasonable probability that, had the evi-dence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to under-mine confidence in the outcome.
Id. at 57, 107 S.Ct. at 1001 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383).
[¶ 14.] Although this Court has not previously addressed personnel records, we have analyzed requests for production of privileged documents by subpoena duces tecum. In Karlen, the defendant was convicted at trial of several felonies, including rape in the second degree against A.J. 1999 S.D. 12, ¶ 4, 589 N.W.2d at 597. Prior to trial, Karlen sought A.J.‘s counseling records, which were protected by the physician-patient privilege. Karlen argued that, at a minimum, such “records should have been reviewed in camera to determine whether exculpatory or contradictory information was present.” Id. ¶ 28, 589 N.W.2d at 600. Karlen made a specialized showing contending: (1) that the evidence at trial showed that the victim had provided inconsistent statements regarding the incidents with which Karlen was charged, and (2) that the counseling records may contain evidence which would affect A.J.‘s credibility and/or may exonerate Karlen.
[¶ 15.] We reversed the circuit court, relying in part upon Ritchie, finding that in light of the specific facts of the case, Karlen may have been denied information crucial to his defense. Karlen, 1999 S.D. 12, ¶ 46, 589 N.W.2d at 605. In concluding that Karlen was entitled to production of A.J.‘s counseling records, we found that Karlen had made a sufficient showing that the evidence he sought was material and not for the purpose of a generalized attack upon A.J.‘s credibility. The requested evidence was “directed toward revealing possible biases, prejudices, or ulterior motives as they may relate directly to issues or personalities in the case at hand.” Id. ¶ 44, 589 N.W.2d at 604 (quoting State v. Sprik, 520 N.W.2d 595, 600 (S.D.1994)). Finding that Karlen may have been denied his right to effectively cross examine A.J., we ordered production of the records for in camera review by the circuit court. We directed the court to release only the relevant portions of the records to the parties. Thus, we have previously ordered the production of even statutorily privileged materials for in camera review when principles of due process so require. However, we did not discuss the parameters for discovery of documents under
[¶ 16.] It is against this backdrop that we consider the question whether the personnel records of law enforcement officers are discoverable, under
[¶ 17.] The Supreme Court of the United States first addressed production of documents under Rule 17(c) in Bowman Dairy Co. v. United States, 341 U.S. 214, 217, 71 S.Ct. 675, 677, 95 L.Ed. 879 (1951). In its analysis, the Court differentiated
[¶ 18.] Roughly one year later, in United States v. Iozia, the United States District Court for the Southern District of New York held that “there must be a showing of good cause to entitle the defendant to production and inspection of documents under Rule 17(c).” 13 F.R.D. 335, 338 (S.D.N.Y.1952). The court identified a four-part test to assist trial courts in rul-
- That the documents are evidentiary and relevant;
- That they are not otherwise procurable by the defendant reasonably in advance of trial by the exercise of due diligence;
- That the defendant cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial;
- That the application is made in good faith and is not intended as a general fishing expedition.
[¶ 19.] In 1974, the Supreme Court of the United States again addressed the use of subpoenas under Rule 17(c) in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The prosecutor filed a motion under Rule 17(c) for a subpoena duces tecum ordering the production of certain tapes and documents relating to “precisely identified” meetings and conversations involving the President and others. Id. at 687-88, 94 S.Ct. at 3097. The Court discussed the factors set forth in Iozia and distilled them, requiring the prosecutor to “clear three hurdles: (1) relevancy; (2) admissibility; [and] (3) specificity” for production of the documents. Id. at 700, 94 S.Ct. at 3103. In denying the President‘s motion to quash the subpoena, the Court noted that “[a] subpoena for documents may be quashed if their production would be ‘unreasonable or oppressive,’ but not otherwise.” Id. at 698, 94 S.Ct. at 3103. The Court found that the prosecutor was permitted to obtain the requested audio tapes because he had shown “there was a sufficient likelihood that each of the tapes contain[ed] conversations relevant to the offenses charged in the indictment.” Id. at 700, 94 S.Ct. at 3103. The prosecutor met this burden by offering sworn testimony of participants in the recorded conversations or by giving reasons that permitted a rational inference of relevance, as well as by making a sufficient preliminary showing of admissibility.
[¶ 20.] The Nixon test is well reasoned. Many state and federal jurisdictions have adopted the test, including the Eighth Circuit Court of Appeals, providing numerous decisions to reference for guidance.6 We adopt the three-part test set forth in Nixon, which obligates the requesting party to establish that the desired evidence is (1) relevant, (2) admissible, and (3) requested with adequate specificity.
[¶ 21.] Sheriff Milstead and the State argue that upon application of the Nixon test, no court could reasonably conclude that the subpoenaed personnel records should be produced for an in camera review. In contrast, Smith contends that the circuit court did not abuse its discretion in ordering an in camera review as she satisfied the four-part test set forth in Iozia. Smith concedes that the records are not open to inspection and copying by the public. But she claims the records are discoverable as they are relevant to the primary issue in this case—whether the true ag-
a. Relevancy
[¶ 22.] “Evidence is relevant if: (a) It has any tendency to make a fact more or less probable than it would be without the evidence; and (b) The fact is of consequence in determining the action.”
[¶ 23.] A number of courts across the country similarly require that the defendant establish a good-faith, factual predicate making it reasonably likely that the records would yield information which will be relevant and material to the defense. See State v. Jones, 140 Conn.App. 455, 59 A.3d 320, 333 (2013), aff‘d, 314 Conn. 410, 102 A.3d 694 (2014) (stating information should be specific and should set forth the issue in the case to which the personnel information will relate);7 People v. Peters, 39 Misc.3d 1226, 972 N.Y.S.2d 145 (N.Y.App.Div.2013); State v. Blackwell, 120 Wash.2d 822, 845 P.2d 1017, 1019 (1993) (en banc). As the Appellate Court of Connecticut noted in Jones, “A showing sufficient to warrant an in camera review of a personnel file requires more than mere speculation.” 59 A.3d at 333. See also State v. Schwartz, 26 Or.App. 279, 552 P.2d 571, 574 (1976) (finding defense attorney‘s argument that “he had heard of a similar incident involving one of the same officers” to be an insufficient showing); State v. Sagner, 18 Or.App. 464, 525 P.2d 1073, 1077 (1974) (holding that counsel‘s “pure conjecture” of officer‘s suspected disciplinary problems was insufficient to warrant production).
[¶ 25.] We endorse the analysis in Gissendanner and Blackwell and require that Smith establish a factual predicate showing that it is reasonably likely that the requested file will bear information both relevant and material to her defense. This is consistent with the approach we took in Karlen, where we required a case-specific showing of material evidence as a prerequisite for in camera review.
[¶ 26.] When ruling on Smith‘s request, the circuit court acknowledged that it was “having a very difficult time understanding how, even if there was information contained in the personnel files, how any of it would be relevant under [SDCL] 19-14-10.” We agree that Smith‘s showing of relevance is lacking. Smith simply argues that Deputy Zishka used unnecessary force against her and that the requested information in the personnel records might produce information useful to impeach his credibility. It is well established however that “the need for evidence to impeach witnesses is [generally] insufficient to require its production in advance of trial.” Nixon, 418 U.S. at 701, 94 S.Ct. at 3104. Smith submitted no affidavit, no evidence of prior conduct, no eye-witness corroboration, no statement upon information or belief, or offer of proof. Her mere allegations are insufficient to subject the law enforcement officer‘s personnel records to a general, non-specific fishing expedition. Accordingly, she has failed to clear the first hurdle of the three-part test.
b. Specificity
[¶ 27.] The requirement of specificity “ensures that the subpoenas are used only to secure for trial certain documents or sharply defined groups of documents.” United States v. Jackson, 155 F.R.D. 664, 667 (D.Kan.1994) (citing United States v. Crosland, 821 F.Supp. 1123, 1129 (E.D.Va. 1993)). It also “prevents a subpoena duces tecum ... from being used as a ‘fishing expedition to see what may turn up.‘” United States v. Sellers, 275 F.R.D. 620, 624 (D.Nev.2011) (quoting Bowman, 341 U.S. at 221, 71 S.Ct. at 679). Of the three requirements set forth in Nixon, “[s]pecificity is the hurdle on which many subpoena requests stumble.” United States v. Ruedlinger, 172 F.R.D. 453, 456 (D.Kan. 1997).
[¶ 28.] Smith‘s subpoena requests “[a]ll disciplinary records/reprimands/ complaints in regard to Deputy Adam Zishka from the Minnehaha County Sheriff([‘s] Department.” While the subpoena did identify the types of documents, which Smith requested from Deputy Zishka‘s personnel record, it failed to limit the requested documents to a particular time frame. Further, the request for “all” disciplinary records does little to narrow the
[¶ 29.] Smith has failed to establish that the subpoena satisfies the necessary requirement of specificity. The “specificity and relevance elements require more than the title of a document and conjecture as to its contents.” Hardy, 224 F.3d at 755 (quoting Arditti, 955 F.2d at 346). A subpoena may not issue based upon a party‘s “mere hope” that it will result in the production of favorable evidence. Hang, 75 F.3d at 1283; United States v. Libby, 432 F.Supp.2d 26, 31-32 (D.D.C.2006). To hold otherwise would permit review of personnel records of arresting officers in every case involving an assault upon an officer.
c. Admissibility
[¶ 30.] Smith as the moving party must also make a preliminary showing that the requested material contains admissible evidence regarding the offenses charged. Nixon, 418 U.S. at 700, 94 S.Ct. at 3104. Sheriff Milstead argues that an in camera review of documents, where “there is no likelihood that the requested information ever becomes relevant or admissible in the underlying criminal case, ... is unnecessary and burdensome.”
[¶ 31.] The parties spend considerable time in their briefs to this Court arguing about the potential admissibility of various types of evidence under
[¶ 32.] While the circuit court correctly determined that in certain circumstances personnel records of law enforcement officers are subject to review, it erred when it ordered production of the records in this case. In fairness to the circuit court, it was faced with a question of first impression and required to resolve the issue without direction from this Court as to what standard should be applied. A defendant must satisfy the Nixon test. Without satisfaction of the Nixon test, production of the requested records, including for the purposes of in camera review, is improper.
2. Whether the circuit court erred in ordering an in camera review of Deputy Zishka‘s personnel file, including disciplinary records, complaints, and reprimands for the last five years.
[¶ 33.] The circuit court erred in ordering an in camera review of the personnel records in this case. This is because Smith failed to satisfy the requirements of the Nixon test. In the future, if a court should determine that a party has made an adequate showing under Nixon, an in camera review by the circuit court is a necessary step before release of any records to the parties. Sheriff Milstead contends that, if an in camera review occurs, “there is nothing to prevent the trial court from providing the documents to opposing counsel without review.” We affirm the important public policy interest in protecting the privacy and safety of law
[¶ 34.] We have discussed the parameters for in camera reviews in several cases involving production of alleged victims’ psychological records. In Maynard v. Heeren, we considered an intermediate appeal from a circuit court‘s order requiring production of a plaintiff‘s psychotherapy records. 1997 S.D. 60, ¶ 1, 563 N.W.2d 830, 832. Plaintiff‘s claims involved negligent misrepresentation, slander, invasion of privacy, and intentional infliction of emotional distress. In ordering full disclosure of the records, we required that an “in camera hearing must be held in the presence of both parties, both parties must have access to the contested information, and both parties must be allowed to make their record.” Id. ¶ 15, 563 N.W.2d at 836. Two years later we adopted a more circumscribed approach. See Karlen, 1999 S.D. 12, ¶¶ 45-46, 589 N.W.2d at 604-05. We directed that upon remand the in camera review should be conducted solely by the circuit court, with only the relevant portions of the record being turned over to the parties for review. We continue to adhere to the more circumscribed approach because it balances the privacy concerns of the officer while protecting the rights of the accused.
[¶ 35.] Should an in camera review be deemed proper under Nixon, it is within the sound discretion of the circuit court to determine what restrictions are appropriate for use and dissemination of the records. If the court concludes that portions of the records are discoverable, the court shall place “reasonable restrictions upon dissemination and use of the sought-after material.” Maynard, 1997 S.D. 60, ¶ 15, 563 N.W.2d at 835. The disclosure of such information must be carefully tailored to the legitimate need for the information in the case. Januszewski, 438 A.2d at 694. As the Court found in Nixon, “in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought.” 418 U.S. at 714, 94 S.Ct. at 3110-11 (emphasis added). The circuit court is equipped with necessary enforcement tools, such as Rule 11, “to assure that no privileged information is misused by the discovering litigant.” Maynard, 1997 S.D. 60, ¶ 17, 563 N.W.2d at 836;
Conclusion
[¶ 36.] The personnel records of law enforcement officers are confidential, but not shielded from discovery when a constitutional right of an accused is implicated. Even so, Rule 17(c) was not intended as a tool for discovery in criminal cases. When a party seeks production of documents under Rule 17(c), that party must first establish that the requested evidence is (1) relevant, (2) admissible, and (3) requested with adequate specificity. A circuit court may modify or quash a sub-
[¶ 37.] As Smith failed to meet her burden of establishing the elements of the Nixon test, the circuit court erred in ordering Sheriff Milstead to produce Deputy Zishka‘s personnel records for in camera review. We reverse.
[¶ 38.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON and WILBUR, Justices, concur.
JANINE M. KERN
ASSOCIATE JUSTICE
Notes
(c) Producing Documents and Objects.
(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.
(3) Subpoena for Personal or Confidential Information About a Victim. After a complaint, indictment, or information is filed, a subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.
A subpoena may also command the person to whom it is directed to produce books, papers, documents, or other objects designated therein. A court on motion made promptly may quash or modify a subpoena if compliance would be unreasonable or oppressive. A court may direct that books, papers, documents, or objects designated in a subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, or documents, or objects or portions thereof to be inspected by the parties and their attorneys.