THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; DARYL LEE JOHNSON, Real Party in Interest. CITY AND COUNTY OF SAN FRANCISCO ex rel. CITY AND COUNTY OF SAN FRANCISCO POLICE DEPARTMENT, Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; THE PEOPLE et al., Real Parties in Interest.
No. S221296
Supreme Court of California
July 6, 2015
61 Cal.4th 696
George Gascon, District Attorney, Jerry P. Coleman, Laura L. vanMunching, James R. Thompson and Allison G. MacBeth, Assistant District Attorneys, for Petitioner the People and for Real Party in Interest the People.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General, for California Attorney General as Amicus Curiae on behalf of Petitioner the People and Real Party in Interest the People.
Gregory D. Totten, District Attorney (Ventura) and Michael D. Schwartz, Assistant District Attorney, as Amici Curiae on behalf of Petitioner the People and Real Party in Interest the People.
Rains Lucia Stern, Michael L. Rains and Zachary A. Lopes for Peace Officers’ Research Association of California, The PORAC Legal Defense Fund and The San Francisco Police Officers’ Association as Amici Curiae on behalf of Petitioner the People and Real Party in Interest the People.
Nancy E. O‘Malley, District Attorney (Alameda), Michael O‘Connor, Assistant District Attorney, and Jeff Rubin, Deputy District Attorney, for Appellate Committee of the California District Attorneys Association as Amicus Curiae on behalf of Petitioner the People and Real Party in Interest the People.
Bonnie M. Dumanis, District Attorney (San Diego), Laura Tanney and Linh Lam, Deputy District Attorneys, for San Diego District Attorney as Amicus Curiae on behalf of Petitioner the People and Real Party in Interest the People.
Jeffrey F. Rosen, District Attorney (Santa Clara) and David A. Angel, Assistant District Attorney, as Amici Curiae on behalf of Petitioner the People and Real Party in Interest the People.
Dennis J. Herrera, City Attorney, Jeremy M. Goldman and Christine Van Aken, Deputy City Attorneys, for Petitioner City and County of San Francisco.
Green Shinee, Richard A. Shinee and Elizabeth J. Gibbons for Association of Los Angeles Deputy Sheriffs as Amicus Curiae on behalf of Petitioner City and County of San Francisco.
Nina D. Sariaslani for Petitioner City and County of San Francisco Police Department.
Sedgwick and Michael L. Fox for Respondent.
Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, and Christopher Gauger, Deputy Public Defender, for Real Party in Interest Daryl Lee Johnson.
Molly O‘Neal, Public Defender (Santa Clara), and Andy Gutierrez, Deputy Public Defender, as Amici Curiae.
Manning Kass, Ellrod, Ramirez, Trester, Eugene P. Ramirez, Tony M. Sain and Scott Wm. Davenport for City of Azusa and City of South Gate as Amici Curiae.
Opinion
CHIN, J.—In City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1 [124 Cal.Rptr.2d 202, 52 P.3d 129] (City of Los Angeles),1 we considered the interplay between the prosecution‘s constitutional duty under Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194] (Brady) and
Brady, supra, 373 U.S. 83, generally obligates the prosecution to disclose to the defense material evidence favorable to the defendant. Separately, the Legislature has enacted procedures to implement the decision of Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess) that allow criminal defendants to seek discovery from the court of potentially exculpatory information located in otherwise confidential peace officer personnel records. If a party bringing what is commonly called a Pitchess motion makes a threshold showing, the court must review the records in camera and disclose to that party any information they contain that is material to the underlying case. (See
In this case, the City and County of San Francisco Police Department (police department), acting pursuant to procedures it has established, informed the district attorney that confidential personnel records of two peace officers who are potential witnesses might contain exculpatory information. Before us are two interrelated questions: (1) May the prosecution examine the records itself to determine whether they contain exculpatory information, or must it, like criminal defendants, follow the procedures the Legislature established for Pitchess motions? (2) What must the prosecution do with this information to fulfill its Brady duty?
We conclude that 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.
Because criminal defendants and the prosecution have equal ability to seek information in confidential personnel records, and because such defendants, who can represent their own interests at least as well as the prosecution and probably better, have the right to make a Pitchess motion whether or not the prosecution does so, we also conclude that the prosecution fulfills its Brady duty as regards the police department‘s tip if it provides the defense the information it received from the police department, namely, that the specified records might contain exculpatory information. That way, defendants may decide for themselves whether to bring a Pitchess motion. The information the police department has provided, together with some explanation of how the officers’ credibility might be relevant to the case, would satisfy the threshold showing
We reverse the judgment of the Court of Appeal, which reached different conclusions.
I. Procedural Background
We take this procedural background primarily from the opinion of the Court of Appeal.
The underlying criminal action charged real party in interest Daryl Lee Johnson (hereafter defendant) with domestic violence crimes. Two San Francisco police officers are potentially important witnesses in the case. In December 2013, the prosecution filed a “Notice of Motion for Discovery of San Francisco Police Department Peace Officer Personnel Records Under Brady and Evidence Code sections 1043 and 1045[, subdivision ](e).” The motion asked the court to review in camera those officers’ personnel records to determine whether they contain any material exculpatory information under Brady, supra, 373 U.S. 83, that is subject to disclosure. It also asked the court to “disclose to the District Attorney‘s Office and the defense any Brady material located in the personnel files, and . . . issue a protective order to protect the officers’ statutory right of privacy in their personnel files.”
Attached to the motion was a declaration by the prosecutor assigned to the case stating that the officers in question “are necessary and essential” prosecution witnesses. The police department had informed the prosecution that each officer had “material in his . . . personnel file that may be subject to disclosure under” Brady. The declaration stated that the records were in the “exclusive possession and control” of the police department and the district attorney did not have “actual” or “constructive” possession of the records. The prosecutor stated that, based on police department representations that the files contained potential Brady material, she believed the officers’ personnel files contain “sustained allegations of specific Brady misconduct, reflective of dishonesty, bias, or evidence of moral turpitude. I believe on these case facts, and given the officers’ roles, that such misconduct would be constitutionally material to the instant case in the Brady sense.” The declaration further stated that the records “are material to the pending litigation in that they pertain to the credibility of a necessary and material prosecution witness, and could either impeach said witness or lead to evidence exonerating the defendant.”
The prosecution‘s motion was filed in accordance with the police department‘s bureau order No. 2010-01 (Bureau Order), which established department procedures for Brady disclosure of materials in employee personnel
The Bureau Order defines and gives examples of what may constitute “potential ‘Brady material.‘” It contemplates that the police department will identify potential Brady material on an ongoing basis and notify the district attorney‘s office on an ongoing basis that the personnel files for particular officers may contain Brady material. When the police department becomes aware of potential Brady material regarding an officer, it creates a synopsis identifying the officer, the conduct, and the documents and information for potential disclosure. A departmental “Brady Committee” reviews the synopsis and, after notifying and permitting comment from the affected employee, recommends to the chief of police whether to disclose the employee‘s name to the district attorney. The chief of police either approves or disapproves the recommendation. If disclosure of an officer‘s name is approved, the district attorney is notified that the officer “has material in his or her personnel file that may be subject to disclosure under” Brady.
The Bureau Order contemplates that the district attorney “will create a list of Department employees who have potential Brady material in their personnel files,” and that “[w]hen the District Attorney‘s Office deems that a law enforcement officer, identified by the Department as having possible Brady material in their personnel file, is a material witness in a pending criminal case . . . the District Attorney shall make a ‘Brady’ motion under
Defendant responded to the prosecutor‘s motion with his own “Motion for Brady discovery.” He asked the court to (1) conduct the requested
The police department expressed agreement with the prosecutor‘s position and urged the trial court to conduct the in camera review that the Bureau Order disclosure protocol contemplated.
On January 7, 2014, the superior court issued an order concluding that the prosecution had not made a sufficient showing to warrant court review of the records, that the Pitchess motion procedures did not apply to motions seeking review of peace officer personnel records under Brady, and that
The district attorney and the police department filed separate petitions for writ of mandate and/or prohibition in the Court of Appeal challenging the superior court‘s order. They asked the Court of Appeal to direct the superior court to conduct the requested review of the personnel records in camera and order disclosure of all Brady materials to both the prosecution and defense counsel, subject to a protective order. Defendant did not object to the requested relief, including trial court in camera review of Brady material.
The Court of Appeal stayed the superior court‘s order and the underlying criminal proceeding, consolidated the two writ proceedings, and ordered the superior court to show cause why the requested relief should not be granted. Ultimately, it held that, to satisfy its constitutional duty, the prosecution may
We granted the police department‘s and district attorney‘s petitions for review and stayed the underlying criminal matter. Later, we requested the parties to brief the question of whether “the prosecution‘s obligation under Brady v. Maryland[, supra,] 373 U.S. 83 (Brady) and its progeny [would] be satisfied if it simply informs the defense of what the police department has informed it (that the two officers’ personnel files might contain Brady material), which would allow the defense to decide for itself whether to seek discovery of that material pursuant to statutory procedures.”
II. Discussion
A. Background
Under Brady, supra, 373 U.S. 83, and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. The duty extends to evidence known to others acting on the prosecution‘s behalf, including the police. (Kyles v. Whitley (1995) 514 U.S. 419, 437 [131 L.Ed.2d 490, 115 S.Ct. 1555]; People v. Whalen (2013) 56 Cal.4th 1, 64 [152 Cal.Rptr.3d 673, 294 P.3d 915] [because a criminalist “participated in the investigation of the . . . murder and was employed by an investigating agency, he was part of the prosecution team, and the prosecutor therefore had a constitutional duty to disclose exculpatory, material evidence in [his] possession regardless whether the prosecutor was personally aware of the existence of the evidence“]; People v. Zambrano (2007) 41 Cal.4th 1082, 1132 [63 Cal.Rptr.3d 297, 163 P.3d 4] [the duty of disclosure “is not limited to evidence the prosecutor‘s office itself actually knows of or possesses, but includes ‘evidence known to the others acting on the government‘s behalf in the case, including the police’ “].) The duty to disclose “exists even though there has been no request by the accused.” (People v. Salazar (2005) 35 Cal.4th 1031, 1042 [29 Cal.Rptr.3d 16, 112 P.3d 14]; see United States v. Agurs (1976) 427 U.S. 97, 107 [49 L.Ed.2d 342, 96 S.Ct. 2392].) For Brady purposes, evidence is material if it is reasonably probable its disclosure would alter the outcome of
“There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 119 S.Ct. 1936].)
As a separate strand of law, “[i]n Pitchess v. Superior Court[, supra,] 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] . . . (Pitchess), we recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer‘s personnel file that is relevant to the defendant‘s ability to defend against a criminal charge. ‘In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as “Pitchess motions” . . . through the enactment of
We have described the process employed when a criminal defendant brings the motion. “If the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents ‘potentially relevant’ to the
These procedures “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. Pitchess and
“The relatively relaxed standards for a showing of good cause under [
Although both Brady, supra, 373 U.S. 83, and its progeny, and the statutory Pitchess procedures employ the terms “material” or “materiality” in describing what must be disclosed, these words are not used in the same way. Under Brady, evidence is “material” only if it is reasonably probable a prosecution‘s outcome would have been different had the evidence been disclosed. (City of Los Angeles, supra, 29 Cal.4th at pp. 7-8.) By contrast, “[u]nder Pitchess, a defendant need only show that the information sought is material ‘to the subject matter involved in the pending litigation.’ ([
“This procedural mechanism for criminal defense discovery, which 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 [citations], is now an established part of criminal procedure in this state.” (Mooc, supra, 26 Cal.4th at pp. 1225-1226.)
With these principles as background, we will first consider whether, as the Court of Appeal held, the prosecutor may always review the confidential personnel records of police officers who are witnesses in a criminal case to determine whether the records contain Brady material. Then we will examine the prosecution‘s exact obligation under Brady with regard to personnel records.
B. Whether the Prosecution Has Direct Access to Confidential Personnel Records
Consistent with a recognition that one legislative purpose in establishing these procedures was to protect the officers’ privacy interests “to the fullest extent possible” (Mooc, supra, 26 Cal.4th at p. 1227), we have said that this provision requires the prosecution, as well as the defendant, to comply with the Pitchess procedures if it wishes to obtain information from confidential personnel records. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1046 [130 Cal.Rptr.2d 672, 63 P.3d 228] (lead opn. of Werdegar, J.).)3 “Absent such compliance, . . . peace officer personnel records retain their confidentiality
The Courts of Appeal have consistently held that the prosecution does not have access to confidential personnel records absent compliance with the Pitchess procedures. (Rezek v. Superior Court, supra, 206 Cal.App.4th at p. 642; Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 415 [31 Cal.Rptr.3d 735]; People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1475 [6 Cal.Rptr.3d 138]; Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 56 [4 Cal.Rptr.3d 767]; People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397, 404-407 [67 Cal.Rptr.2d 910].)
The Court of Appeal in this case concluded that the prosecution does have the right to review personnel records of police officer witnesses for Brady material without complying with the Pitchess procedures, although the prosecution would have to comply with those procedures, and receive judicial approval, before it could turn over to the defense any Brady material it found. It concluded that
Contrary to the Court of Appeal‘s view, the exception for investigations does not apply here. Black‘s Law Dictionary defines “investigation” as “[t]he activity of trying to find out the truth about something, such as a crime, accident, or historical issue; esp., either an authoritative inquiry into certain facts, as by a legislative committee, or a systematic examination of some intellectual problem or empirical question, as by mathematical treatment or use of the scientific method.” (Black‘s Law Dict. (10th ed. 2014) p. 953, col. 2.) Checking for Brady material is not an investigation for these purposes. A police officer does not become the target of an investigation merely by being a witness in a criminal case.
“A law enforcement officer‘s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records.” (Mooc, supra, 26 Cal.4th at p. 1229.) Treating such officers as the subjects of investigations whenever they become witnesses in criminal cases, thus giving the prosecutor routine access to their confidential personnel records, would not protect their privacy interests “to the fullest extent possible.” (Id. at p. 1227.)
The Court of Appeal relied heavily on Michael v. Gates (1995) 38 Cal.App.4th 737 [45 Cal.Rptr.2d 163] for its conclusion. That case merely held that a governmental agency may allow its own attorney to review personnel records in its possession in some situations without complying with the Pitchess procedures. It does not stand for the proposition that the prosecution, which does not represent the agency, may routinely review those records. (See discussion in People v. Superior Court (Gremminger), supra, 58 Cal.App.4th at pp. 405-406.)
Moreover, as discussed post, permitting prosecutors routine access to personnel records is not necessary to protect defendants’ due process rights to obtain potentially exculpatory evidence. The Pitchess procedures the Legislature established long ago can protect defendants’ interests without unduly infringing on police officers’ privacy interests.
Accordingly, we conclude that prosecutors, as well as defendants, must comply with the Pitchess procedures if they seek information from confidential personnel records.
When the police department informed the district attorney that the officers’ personnel records might contain Brady material, the prosecution had a duty under Brady, supra, 373 U.S. 83, to provide this information to the defense. No one disputes that. The question before us is whether the obligation goes beyond that.
Defendant argues that the district attorney has an obligation under Brady to provide material exculpatory information possessed by any member of the prosecution team, including the police department. The district attorney and police department respond that although in general the prosecutor‘s obligation to provide Brady material extends to what the police know, the obligation extends only to what the police know about the specific case and does not go so far as to include confidential personnel records the police department maintains in its administrative capacity. We need not resolve this dispute, because we conclude instead that the prosecution has no Brady obligation to do what the defense can do just as well for itself.
The purpose behind the Brady rule is “avoidance of an unfair trial to the accused” (Brady, supra, 373 U.S. at p. 87) or, stated slightly differently, “to ensure that a miscarriage of justice does not occur” (United States v. Bagley (1985) 473 U.S. 667, 675 [87 L.Ed.2d 481, 105 S.Ct. 3375]). In light of this purpose, the high court has made clear that one element of a Brady violation is that “evidence must have been suppressed by the State, either willfully or inadvertently . . . .” (Strickler v. Greene, supra, 527 U.S. at p. 282.) If the prosecution informs the defense of what it knows regarding information in confidential personnel records, and the defense can seek that information itself, no evidence has been suppressed.
“[T]he prosecutor had no constitutional duty to conduct defendant‘s investigation for him. Because Brady and its progeny serve ‘to restrict the prosecution‘s ability to suppress evidence rather than to provide the accused a right to criminal discovery,’ the Brady rule does not displace the adversary system as the primary means by which truth is uncovered. (United States v. Martinez-Mercado (5th Cir. 1989) 888 F.2d 1484, 1488.) Consequently, ‘when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.’ (United States v. Brown (5th Cir. 1980) 628 F.2d 471, 473; see United States v. Stuart (8th Cir. 1998) 150 F.3d 935, 937
As we have explained, the prosecution and the defense have equal access to confidential personnel records of police officers who are witnesses in a criminal case. Either party may file a Pitchess motion, and either party must comply with the statutory procedures to obtain information in those records. Because a defendant may seek potential exculpatory information in those personnel records as well as the prosecution, the prosecution fulfills its Brady obligation if it shares with the defendant any information it has regarding whether the personnel records contain Brady material, and then lets the defense decide for itself whether to file a Pitchess motion. In this case, this means the prosecution fulfilled its obligation when it informed defendant of what the police department had told it, namely, that the personnel records of the officers in question might contain Brady material, and that the officers are important witnesses.
Numerous federal decisions have made clear that if the prosecution provides the defense with, or if the defense otherwise has, sufficient information to obtain the evidence itself, there is no Brady violation. (Amado v. Gonzalez (9th Cir. 2014) 758 F.3d 1119, 1137 [“defense counsel cannot ignore that which is given to him or of which he otherwise is aware . . .“].) An oft-cited case is U.S. v. Dupuy (9th Cir. 1985) 760 F.2d 1492, where the prosecutor determined that certain notes that she had promised would remain confidential contained potential Brady material. Rather than disclose the information directly to the defendant, she “took her dilemma to the trial judge” and discussed the situation with him. (Id. at p. 1501.) Although the appellate court faulted what the trial judge ultimately did, it found the prosecutor had acted in accordance with her Brady duty. “By submitting the issue to the judge, the prosecutor satisfied her duty to disclose exculpatory material.” (Ibid.) It explained that “[s]ince suppression by the Government is a necessary element of a Brady claim, [citation], if the means of obtaining the exculpatory evidence has been provided to the defense, the Brady claim fails.” (Id. at fn. 5.)
Several cases have cited U.S. v. Dupuy, supra, 760 F.2d 1492, in finding no Brady violation when the defense had the ability to obtain the exculpatory evidence for itself. (U.S. v. Bond (9th Cir. 2009) 552 F.3d 1092, 1097 [no Brady violation where the government provided the defendant “with the information needed to acquire all trial testimony, and provided him with the
The high court has held that when confidential records might contain exculpatory material, the trial court‘s in camera review of those records, followed by disclosure to the defense of any Brady material that review uncovers, is sufficient to protect the defendant‘s due process rights. In Pennsylvania v. Ritchie (1987) 480 U.S. 39 [94 L.Ed.2d 40, 107 S.Ct. 989] (Ritchie), the defendant, charged with molesting his minor daughter, sought disclosure of information in confidential reports prepared by a child protective service agency that had investigated the case. The Pennsylvania Supreme Court had “held that defense counsel must be allowed to examine all of the confidential information, both relevant and irrelevant, and present arguments in favor of disclosure.” (Id. at p. 59.) The high court disagreed that such access was required. “A defendant‘s right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth‘s files.” (Ibid.) Rather, the court found that the defendant‘s “interest (as well as that of the Commonwealth) in ensuring a fair trial can be protected fully by requiring that the [confidential] files be submitted only to the trial court for in camera review.” (Id. at p. 60.) “An in camera review by the trial court will serve [the defendant‘s] interest without destroying the Commonwealth‘s need to protect the confidentiality of those involved in child-abuse investigations.” (Id. at p. 61.)
A similar issue arose recently in California concerning confidential child welfare services records. (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329 [168 Cal.Rptr.3d 67].) In that case, the prosecutor reviewed the records and told the defense there was no Brady material. Believing that the records did contain exculpatory material, the defense moved the trial court to review them in camera, relying on ”
The J.E. court explained that, “[a]s a practical matter, use of a [
We think the procedure used for confidential juvenile records in Ritchie, supra, 480 U.S. 39, and J.E. v. Superior Court, supra, 223 Cal.App.4th 1329, works just as well for confidential personnel records. “Similar to the circumstances in Ritchie, the records sought in this case are confidential but available by court order if they are material to the issues in the pending case. The difference between Ritchie and this case is that California has a legislatively established, exclusive method for gaining access to police officer personnel records for discovery of such exculpatory material—the so-called Pitchess procedures . . . .” (Abatti v. Superior Court, supra, 112 Cal.App.4th at p. 58.)
There are several advantages in these circumstances to having the defendant use the Pitchess procedures to acquire exculpatory material in confidential personnel records rather than require the prosecution to do so. First, in some criminal cases the credibility of police officer witnesses might not be at issue and the defense might have no reason to bring a Pitchess motion. Whether to seek information in the officer‘s personnel records should be for the defense to decide in the first instance. If the defense does not intend to challenge an officer‘s credibility, it might reasonably choose not to bring a Pitchess motion. But the prosecution would not know this. Requiring the prosecution to seek the information on the defendant‘s behalf would essentially force the Pitchess procedures to be employed in most, if not all, criminal cases, including those in which the defense has no need of impeaching material. The Pitchess procedures should be reserved for cases in which officer credibility is, or might be, actually at issue rather than essentially mandated in all cases.
Additionally, in these circumstances, it makes sense to have the defense make the Pitchess motion for itself rather than force the prosecution to do so.
Requiring the prosecution routinely to seek Brady material in personnel reports will also foster unnecessary duplicative proceedings. Whatever we say about the prosecution‘s Brady obligation cannot deprive the defense of the right to bring its own Pitchess motion. (See Rezek v. Superior Court, supra, 206 Cal.App.4th at p. 642.) The statutory Pitchess procedures apply to all parties. The defense is not required simply to trust that the prosecution has obtained for it all favorable information; it is entitled to investigate for itself. Even if the prosecution brings a Pitchess motion, the defense might want to bring its own motion, something it unquestionably would have the right to do.
The prosecution also has a statutory right to bring a Pitchess motion and might want to do so sometimes for its own reasons. Indeed, at oral argument, the district attorney‘s office informed this court that it intended to continue making Pitchess motions even if we hold, as we do, that it is not constitutionally required to do so. That would be its own decision, and we cannot prohibit it from filing its own motions. We cannot even prohibit duplicative motions (by the prosecution and by the defense), although we can and do encourage the court and parties to coordinate any such duplicative motions. But we should not adopt rules that essentially force duplicative motions. Under the circumstances, it is more efficient simply to require the defense to employ the Pitchess procedures in the first instance if it wishes to obtain the information.
Finally, requiring the defense to file its own Pitchess motion would ensure that a record exists of what occurred. When a party brings a Pitchess motion, the trial court is required to keep a record of what it reviewed to provide meaningful appellate review. (Mooc, supra, 26 Cal.4th at p. 1228.) Using the Pitchess procedures rather than simply relying on the prosecution would thus forestall potential litigation over whether the prosecution had fulfilled its Brady obligations, i.e., had adequately represented the defense interests. (See J.E. v. Superior Court, supra, 223 Cal.App.4th at p. 1339.)
Understandably, defendant tells us he “is most concerned that defendants get the exculpatory materials secreted in police personnel records, to which they are entitled under Brady.” But he argues that the Pitchess procedures are inadequate to protect his rights. We disagree. The Brady
“Our state statutory scheme allowing defense discovery of certain officer personnel records creates both a broader and lower threshold for disclosure than does the high court‘s decision in Brady, supra, 373 U.S. 83. Unlike Brady, California‘s Pitchess discovery scheme entitles a defendant to information that will ‘facilitate the ascertainment of the facts’ at trial (Pitchess, supra, 11 Cal.3d at p. 536), that is, ‘all information pertinent to the defense’ [citation].” (City of Los Angeles, supra, 29 Cal.4th at p. 14.)
It is true, as defendant notes, that in some ways the Pitchess statutory scheme is potentially narrower than Brady‘s requirements. For example,
Defendant is concerned that the required threshold showing is too high to expect him to be able to obtain exculpatory material from personnel records. On the contrary, a defendant must show good cause, but the burden is not high. “Good cause for discovery exists when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74, 84 [260 Cal.Rptr. 520, 776 P.2d 222] . . . .) A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ (Ibid.)” (People v. Gaines (2009) 46 Cal.4th 172, 179 [92 Cal.Rptr.3d 627, 205 P.3d 1074].) The defense only needs to demonstrate “‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense or how it would impeach the officer‘s version of events.‘” (Id. at p. 182, quoting Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021 [29 Cal.Rptr.3d 2, 112 P.3d 2]; see Warrick, at pp. 1024-1025 [the defense proposed may, “depending on the circumstances of the case, . . . consist of a denial of the facts asserted in the police report“].) “This specificity requirement excludes requests for officer information that
Contrary to defendant‘s concern, to satisfy the “reasonable belief” requirement, he need not know what information is located in personnel records before he obtains the discovery. Such a requirement would be impossible. The required threshold showing does not place a defendant “in the Catch-22 position of having to allege with particularity the very information he is seeking.” (People v. Memro (1985) 38 Cal.3d 658, 684 [214 Cal.Rptr. 832, 700 P.2d 446].) A reasonable belief that the agency has the type of information sought does not necessarily mean personal knowledge but may be based on a rational inference. (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 90 [finding adequate to trigger in camera review defense counsel‘s declaration stating the “‘belie[f]‘” that members of the public “‘may‘” have filed complaints of use of excessive force by the officers in question].) “It is equally apparent that the statute, in calling for a description of the ‘type’ of records sought to be disclosed, does not require the affiant to prove the existence of particular records. . . . Clearly, an affidavit which describes the information sought as consisting of prior ‘complaints of excessive force’ by specific officers . . . has specified a . . . ‘type’ of information within the plain meaning of the statute.” (Id. at pp. 90-91.)
In this case, the police department has laudably established procedures to streamline the Pitchess/Brady process. It notified the prosecution, which in turn notified the defendant, that the officers’ personnel records might contain Brady material. A defendant‘s providing of that information to the court, together with some explanation of how the officer‘s credibility might be relevant to the proceeding, would satisfy the showing necessary under the Pitchess procedures to trigger in camera review. Moreover, as we have noted, defendants are always permitted to file their own Pitchess motion even without any indication from the police department (through the prosecution) that the records might contain Brady material and, indeed, even if, hypothetically, the prosecution had informed them that the police department had said the records did not contain Brady material. The defense is not required simply to trust the prosecution or police department but may always investigate for itself.
For these reasons, we conclude that, under these circumstances, permitting defendants to seek Pitchess discovery fully protects their due process rights under Brady, supra, 373 U.S. 83, to obtain discovery of potentially exculpatory information located in confidential personnel records.
The superior court was concerned that requiring it to review personnel records routinely for exculpatory material, including Brady material, would be too onerous. Personnel records can be quite voluminous. One answer to this concern is that the burden has long existed. First this court in Pitchess, supra, 11 Cal.3d 531, and then the Legislature in codifying Pitchess, placed the burden on the courts. It cannot be avoided.
But the burden need not be too great. Judicial in camera review of records will be necessary only when a party brings a Pitchess motion, which might not occur unless the officer‘s credibility will, or might, actually be at issue.
Additionally, the court need not review everything in the personnel records, but only those portions that might be relevant. “When a trial court concludes a defendant‘s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer‘s personnel files, the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself. [Citation.] A law enforcement officer‘s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion . . . . Documents clearly irrelevant to a defendant‘s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of
The custodian of the records can assist the trial court by focusing the court‘s attention on what is relevant. Typically, the defendant is seeking information that could be impeaching. Such information should be readily apparent, especially when the defense specifies, as it should, the kind of impeaching information it is seeking. For all of these reasons, we believe that the Pitchess procedures can, and must, be employed in a way that ensures compliance with defendants’ due process rights to receive exculpatory information without unduly burdening trial courts.
We reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with our opinion.
Cantil-Sakauye, C. J., Werdegar, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
I. LEGAL BACKGROUND
A. Peace officer and civilian personnel records. Law enforcement personnel records are protected from disclosure by the statutory procedure required by
B. Brady disclosures. The District Attorney has a constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83 to provide criminal defendants with material exculpatory evidence, including substantial evidence bearing on the credibility of prosecution witnesses. In California, the statutory procedure for discovery of police officer personnel records under
Repetitive requests by the District Attorney that the Department check employee personnel files of Department employees who may be witnesses create unnecessary paperwork and personnel costs for both the Department and the District Attorney‘s Office. Instead, the Department is adopting a procedure
C. Brady disclosure process. The Department and the District Attorney‘s Office have adopted a procedure by which the District Attorney‘s Office learns the identity of officers and civilian employees who may testify as a material witness in a prospective or pending case and who have information in their personnel files that may require disclosure under Brady. As set forth in Section IV.A., the District Attorney will file a Pitchess motion in that case to seek in camera review by the Court to determine if the personnel files contain Brady material. In response to the motion, the Department will gather Brady related personnel files and provide them to the Court. The Court will determine if the personnel files contain Brady material that must be provided to the defense. This approach reconciles a defendant‘s constitutional right to a fair trial with a law enforcement employee‘s right to confidentiality.
D. District Attorney Policies. This procedure works in conjunction with policies issued by the District Attorney regarding Brady material.
E. District Attorney‘s Authority Under Penal Code Section 832.7(a). Nothing in this Procedure for Disclosure shall apply to or in any way limit the District Attorney‘s authority pursuant to the exception set forth in
II. BRADY MATERIAL DEFINED
A. Brady Material. The District Attorney is obligated to provide the defense in criminal cases with exculpatory evidence that is material to either guilt or punishment. (Brady v. Maryland, supra, 373 U.S. 83, 87.) Reviewing courts define “material” as follows: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (People v. Roberts (1992) 2 Cal.4th 271, 330.) The evidence must raise a “reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different [citation]—that is to say, a probability sufficient to undermine confidence in the outcome.” (In re Sassounian (1995) 9 Cal.4th 535, 543-544, n. 6.)
“Exculpatory” means favorable to the accused. This obligation includes “substantial material evidence bearing on the credibility of a key prosecution witness.” (People v. Ballard (1991) 1 Cal.App.4th 752, 758.) Such impeachment evidence must disclose more than “minor inaccuracies.” (People v. Padilla (1995) 11 Cal.4th 891, 929, overruled on other grounds, People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
The government has no Brady obligation to “communicate preliminary, challenged, or speculative information.” (United States v. Agurs (1976) 427 U.S. 97, 109, fn. 16.) However, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” (Id. at p. 108.) See also Kyles v. Whitley (1995) 514 U.S. 419, 439, which warns prosecutors against “tacking too close to the wind” in withholding evidence.
Examples of evidence that may constitute “Brady material” are as follows:
- The character of the witness for honesty or veracity or their opposites. (
Evid. Code § 780 (e) .) - A bias, interest, or other motive. (
Evid. Code § 780 (f) .) - A statement by the witness that is inconsistent with the witness‘s testimony. (
Evid. Code § 780 (h) .) - Felony convictions involving moral turpitude. (
Evid. Code § 788 ; People v. Castro (1985) 38 Cal.3d 301, 314.) Discovery of all felony convictions is required regarding any material witness whose credibility is likely to be critical to the outcome of the trial. (Penal Code § 1054.1 (d) ; People v. Santos (1994) 30 Cal.App.4th 169, 177.) - Facts establishing criminal conduct involving moral turpitude, including misdemeanor convictions. (People v. Wheeler (1992) 4 Cal.4th 284, 295-297.)
- False reports by a prosecution witness. (People v. Hayes (1992) 3 Cal.App.4th 1238, 1245.)
- Pending criminal charges against a prosecution witness. (People v. Coyer (1983) 142 Cal.App.3d 839, 842.)
- Parole or probation status of a prosecution witness. (Davis v. Alaska (1974) 415 U.S. 308, 318; People v. Price (1991) 1 Cal.4th 324, 486.)
- Evidence undermining an expert witness‘s expertise. (People v. Garcia (1993) 17 Cal.App.4th 1169, 1179-80.)
- Evidence that a witness has a racial, religious or personal bias against the defendant individually or as a member of a group. (In re Anthony P. (1985) 167 Cal.App.3d 502, 507-510.)
B. Brady Material In Police Officer Personnel Files. For purposes of this procedure, potential “Brady material” in personnel files of police officers shall include any of the following:
- A sustained finding of misconduct that comes within the definition of Brady material set forth in Section II.A. A sustained finding of misconduct occurs when (1) if charges are filed at the Chief‘s level, the Chief of Police finds a complaint to be sustained, and if there is an appeal to the Police Commission, the Commission has issued a decision on the appeal that finds a complaint to be sustained, or (2) if charges are filed with the Police Commission, the Police Commission finds a complaint to be sustained. If the Department has notified the District Attorney‘s Office of Brady information and the officer later successfully appeals the finding of misconduct to a court, the Department shall provide the District Attorney‘s Office with a copy of the court‘s decision and the District Attorney‘s Office will reevaluate the matter.
- Charges of misconduct filed with the Police Commission, or sustained by the Chief and on appeal to the Commission, when the charged misconduct comes within the definitions of Brady material set forth in Section II.A, (i) if the officer resigns or retires after the charges are filed and before the misconduct case is decided, or (ii) if the officer is still active and likely will be called as a witness in a criminal case before the misconduct case is decided. In either case, before the Department notifies the District Attorney‘s Office of the officer‘s name, the Brady Committee (described in Section III) must determine that the seriousness of the misconduct and strength of the evidence warrants notification under Brady. If the complaint of misconduct is later not sustained, the Department shall inform the District Attorney‘s Office and the District Attorney‘s Office will reevaluate the matter.
- Any arrest, conviction or pending criminal charge for a felony or moral turpitude offense.
C. Brady Material In Civilian Personnel Files. For purposes of this procedure, potential “Brady material” in personnel files of Department civilian employees shall include any of the following:
- Any finding of misconduct that comes within the definition of Brady material set forth in Section II.A. A finding of misconduct occurs when (1) the Chief of Police has found a complaint to be sustained or (2) if a grievance has been filed, the employee has exhausted all remedies provided by Memorandum of Understanding that governs the employee and the complaint has been sustained. If the Department has notified the District Attorney‘s Office of Brady information and the civilian later successfully appeals the finding of misconduct to a court, the Department shall provide the District Attorney‘s Office with a copy of the court‘s decision and the District Attorney‘s Office will reevaluate the matter.
- Official charges of misconduct filed by the Department when the charged misconduct comes within the definition of Brady material set forth in Section II.A, (i) if the employee resigns or retires after the charges are filed and before the misconduct case is decided, or (ii) if the employee is still active and likely will be called as a witness in a criminal case before the misconduct case is decided. In either case, before the Department notifies the District Attorney‘s Office of the employee‘s name the Brady Committee must determine that the seriousness of the misconduct and the strength of the evidence warrants notification under Brady. If the complaint of misconduct is later not sustained, the Department shall inform the District Attorney‘s Office and the District Attorney‘s Office will reevaluate the matter.
- Any arrest, conviction or pending criminal charge for a felony or moral turpitude offense.
III. NOTIFICATION TO DISTRICT ATTORNEY
A. SFPD procedure for identifying potential Brady Material. The Department may become aware of Brady material based on an internal administrative investigation, a criminal investigation, in response to a request for information from the District Attorney in a pending case, or otherwise. Before the Department identifies an officer or a civilian employee to the District Attorney‘s Office as having Brady material in his or her personnel file or otherwise, the following procedures shall occur:
- The Department shall create a synopsis identifying the employee, the conduct that may give rise to a Brady obligation to report, and the documents and information that potentially should be disclosed. The Department shall create a form that includes spaces for the synopsis, the Brady Committee‘s recommendation, a notation as to whether the employee has submitted any responsive information, and the Chief‘s determination.
- A ”Brady Committee” shall meet, review the synopsis and recommend to the Chief of Police on the form whether disclosure of the employee‘s name should be made to the District Attorney. The Committee shall consist of the Assistant Chief of the Office of Chief of Staff, the Director of Risk Management, the head of the Legal Division, the Director of Staff Services, and the author of the synopsis. The Department shall retain a retired judge with criminal law experience to serve as a member of the Committee.
- Before making a recommendation to the Chief of Police, the Brady Committee shall send a letter to the affected employee to notify the employee that the Committee has determined that the employee‘s file contains evidence of conduct that may be Brady material. The letter shall provide the employee with an opportunity to submit written information within 15 calendar days of the date of the letter as to why the conduct identified in the letter does not constitute Brady material. Upon reasonable notice and during business hours, the employee shall have the opportunity to review the form created by the Department. The Committee shall review any information submitted by the employee before making a final decision on its recommendation. Any information submitted by the employee shall be noted on and appended to the form.
- The Committee shall forward the form containing its recommendation to the Chief of Police. The Chief or the Chief‘s designee shall approve or disapprove in writing on the form the disclosure of an employee‘s name to the District Attorney‘s Office.
- The form and all accompanying documentation, including any response by the employee, shall be placed in the employee‘s personnel file.
B. SFPD procedure for notifying District Attorney‘s Office. Upon the completion of the internal review within the Department, the Director of Risk Management or designee shall send a written memorandum to the Chief of the Criminal Division in the District Attorney‘s Office that states the
At the same time, the SFPD shall provide a copy of the written notification to the involved employee. The copy shall be appended to the form described in Section III.A, and as stated above, the form shall be placed in the employee‘s personnel file.
C. Confidentiality of Files. All Department internal documents that identify employees as having potential Brady material, including the form described in Section III.A above, any attachments and any correspondence to or from the employee or the employee‘s representative, shall be treated as confidential, protected as a confidential personnel record, official information, and by any other applicable privilege or legal protection and shall be maintained in a secure file.
All memoranda from the Department to the District Attorney‘s Office that identify an employee as having potential Brady material in his or her personnel file shall be considered confidential, shall be protected as a confidential personnel record, as official information, and by any other applicable privilege or legal protection, and shall be maintained in a secure file.
The Department is aware that the District Attorney‘s Office will create a list of Department employees who have potential Brady material in their personnel files. The list shall include only the name of the employee, star number if applicable, and date of separation from the Department if not a current employee, and no other information. The list resides on a secure computer drive, accessible to Assistant District Attorneys, with a “read only” feature, precluding the copying, printing or transmission of the list (only the list administrators can alter any information on the list).
IV. PROCEDURE FOR JUDICIAL REVIEW IN OPEN CRIMINAL CASES
A. Motion for in camera review. When the District Attorney‘s Office deems that a law enforcement officer, identified by the Department as having possible Brady material in their personnel file, is a material witness in a pending criminal case or intends to call that officer as a witness, the District Attorney shall make a ”Brady” motion under
B. Handling of Personnel Files. The Department shall handle Brady motions in the same manner as motions under
C. Disclosure. If following in camera review, the court orders disclosure of personnel file information, disclosure of the information shall be made to all parties as ordered by the Court. The Department and District Attorney‘s Office will work with the Court on an efficient method for disclosure. The Department and District Attorney‘s Office will urge the Court to adopt a procedure under which all parties, the Department, the District Attorney‘s Office and the defense, receive the information at the same time in conjunction with a protective order. The prosecuting attorney shall request that the court issue a protective order against disclosure of the material in other cases pursuant to
D. File Control. Upon completion of a criminal case, the District Attorney‘s Office shall return to the Department all material from employee personnel files obtained pursuant to this Procedure for Disclosure. The District Attorney‘s Office shall not maintain a depository organized by officer name of information obtained from SFPD personnel files pursuant to in-camera hearings. Instead, Brady motions shall be made in each future case in which the officer is a material witness. In connection with each motion, the Department shall keep a record of the files produced for in camera review and the material ordered disclosed by the Court.
V. HISTORICAL INFORMATION
The Department has potential Brady material in its personnel files concerning officers and civilian employees that relates to conduct that has occurred in the past and thus may impact closed
In order for the District Attorney‘s Office to satisfy any Brady obligation that may apply in closed criminal cases, the Department will provide the employee‘s name, star number if applicable, date of separation if not a current employee, and the following information. For conduct that has resulted in criminal arrest or conviction, the Department will provide the District Attorney with the relevant dates and description of the criminal conduct. For other types of misconduct, the Department will provide the District Attorney with the relevant dates.
The Department is aware that the District Attorney‘s Office will then take appropriate legal action to ensure that notice is given to all affected parties, including, but not limited to, filing a motion with the Court, giving written notice to a defendant‘s counsel of record, or giving written notice to the defense bar.
Except for the notification described in the prior paragraph, the motion procedure set forth in section IV.A, and as ordered by the court: (1) all information provided by the Department to the District Attorney‘s Office identifying an employee as having potential Brady material in his or her personnel file shall be considered confidential, shall be protected as a confidential personnel record, as official information, and by any other applicable privilege or legal protection, and shall be maintained in a secure file, and (2) the District Attorney‘s Office will maintain the confidentiality of all personnel information obtained pursuant to this Procedure for Disclosure and will follow the confidentiality provisions set forth in this policy, including but not limited to the return to the Department of all material from such personnel files when a criminal case is completed.
CONCLUSION
The purpose of this procedure is to ensure that prosecutors and the defense receive sufficient information to comply with the constitutional requirements of Brady while protecting the legitimate privacy rights of law enforcement witnesses. This procedure is not intended to create or confer any rights, privileges, or benefits to defendants or prospective or actual witnesses.
This procedure governs the Department‘s communications to the District Attorney‘s Office concerning the identities of employees who may have Brady material in their personnel files. This procedure does not address the situation in which the Department determines that the existence of Brady material may prevent an employee from effectively testifying and consequently may limit the assignments available to the employee. The Department intends to implement a separate procedure to address that situation after meet and confer with the Police Officer‘s Association and other affected employee organizations.
Importantly, the Department does not assume that the communication of an employee‘s name to the District Attorney‘s Office automatically will disqualify an employee from particular assignments in the Department. A court will make the determination whether particular information constitutes Brady material in a particular case. A court may determine that the information is too remote, not material, not subject to disclosure or inadmissible for some other reason, and not order disclosure under Brady.