“Pitchess Motion” – How to Get a Cop’s Personnel Record

In California, a Pitchess motion is where you as the defendant seek to inspect a law enforcement officer’s personnel record for evidence of police misconduct. Defense attorneys typically bring a Pitchess motion when they suspect officers may have acted improperly, such as by filing a false police report or using excessive force.

Pitchess motions, which is governed by California Evidence Code §§ 1043 to 1047, must include:

1. a description of the type of information you seek and
2. a showing of “good cause” for the personnel records’ release.

If the judge finds you showed “good cause,” they will hold a private (“in-camera”) hearing to decide which records are relevant to your case.

In this article our California criminal defense attorneys explain what you need to know about Pitchess motions:

• 1. What Pitchess Motions Do
• 2. Public Information
• 3. Filing Process
• 4. Possible Outcomes
• 5. Why is it called a Pitchess motion?
• 6. What is a Brady letter?
• Additional Resources

1. What Pitchess Motions Do

In California, a successful Pitchess motion allows you to obtain information from a police officer’s personnel file that is:

1. relevant to your criminal defense and
2. not already public information.

If the evidence you obtain through a Pitchess motion shows the police officer committed misconduct in past cases similar to misconduct committed in your case, this pattern of misconduct could be critical for your defense.

Common examples of police misconduct include:

• using excessive force,
• racially profiling you,
• coercing your confession,
• fabricating probable cause,
• lying in a police report,
• planting evidence,
• making an unlawful traffic stop, and/or
• taking other prejudicial actions.¹

2. Public Information

In California, Pitchess motions are unnecessary to obtain records that are already open to “public inspection.” With the passing of Senate Bill 1421 in 2018, anyone can find information about whether a particular officer ever:

1. shot a gun at someone,
2. used force against someone, causing them death or great bodily injury,
3. committed sexual assault, and/or
4. committed a dishonest act such as perjury, making or filing false reports, or destroying, falsifying, or tampering with evidence.

These public records often come in the form of either:

• investigative reports,
• photographic, audio and video evidence,
• transcripts or recordings of interviews,
• autopsy reports,
• documents setting forth findings or recommended findings, and
• copies of disciplinary records.²

Redacted Information

Senate Bill 1421 states that when authorized records are open for inspection, some information must be redacted or edited to protect the identity of certain parties and witnesses. Information that gets redacted includes:

• personal information (such as addresses, telephone numbers, and names of family members),
• confidential medical or financial information,
• information prohibited by federal law,
• information that would create a danger to an officer’s safety, and,
• information where the public interest served by not disclosing it outweighs the public interest served by disclosing it.³

3. Filing Process

In California, your attorney should file Pitchess motions as early as possible to allow time for follow-up investigation if the motion is granted. In any case, the motion should be filed prior to your criminal jury trial, ideally before the preliminary hearing.

The Pitchess motion must be in writing and has to include four things:

1. identification of the criminal court case, you, the officer(s) whose records are being sought, and the governmental agency that has custody of the records;
2. a description of the type of records you are seeking:
3. proof that you have notified the agency that holds the records of the Pitchess motion and proof of service; and,
4. an affidavit showing “good cause” for the disclosure of the records (typically written and signed by your criminal defense attorney).⁴

Showing of “Good Cause”

Regarding the fourth prong of what a Pitchess motion must contain, a showing of “good cause” exists if the affidavit sets forth both:

1. a specific factual scenario that supports allegations of officer misconduct in your case and
2. reasons why the misconduct would be material to your defense.

For police misconduct to have “materiality” to your case, there must be:

1. a link between your criminal charges and your defense and
2. a showing why the requested information would make a difference to your defense.⁵

Example: Wendell is arrested after an undercover officer claims that Wendell tried to purchase drugs from him. Wendell files a Pitchess motion, and his “good cause” affidavit asserts that Wendell never tried to buy drugs from the officer, and the officer was simply lying.

The affidavit also explains that any information in the officer’s personnel record that would establish a history of dishonesty and filing false reports would be relevant information for Wendell’s case. The court decides that this affidavit is sufficient to show “good cause” for disclosure of the records under Evidence Code 1043 EC.

Note that Pitchess motions can be filed under seal to avoid disclosing your defense strategy to the prosecution. You may include exhibits such as your arrest report to establish relevance.

“In-Camera” Hearings

If the above procedural requirements are met, and good cause is shown, then a Pitchess motion moves onto an “in-camera” hearing conducted by a judge.

“In-camera” means that the hearing is private rather than in open court. The only people that usually attend are the officer whose records are being sought and any other people the officer is willing to have present. This usually includes the custodian of records for the police department, who must also explain what documents were withheld and why.

During the in-camera review hearing, the trial court judge evaluates whether or not the information in the officer’s personnel files is relevant to your defense. Only information that the judge determines is relevant will be disclosed to you.

Note that the judge does not serve as a trier of fact and consequently does not decide credibility or weigh this evidence.⁶ Also note that the District Attorney is not entitled to argue the prosecutorial perspective during the Pitchess hearing.

Records that Cannot Be Disclosed

There are certain types of information that the judge cannot disclose to you (unless the information is exculpatory, which means suggesting that you are innocent). Records that are off-limits include:

1. information about complaints against the officer(s) that occurred more than five years before the alleged police misconduct in your case,
2. the personal conclusions (as opposed to the disciplinary action) of any other officer investigating a citizen’s complaint against the officer(s), and
3. facts that are so remote or irrelevant (even if recent) that disclosing them would have little or no practical benefit.⁷

4. Possible Outcomes

There are two possible outcomes to a Pitchess motion in California. These are that the motion is:

1. granted, and information is disclosed; or,
2. denied, and information is not disclosed.⁸

Motion Granted

If a court grants a Pitchess motion, and the judge finds records relevant to your defense, the records are not typically turned over. Rather, the judge provides you the name and contact information of anyone that previously filed a complaint against the officer (unless that information is unavailable).⁹

Your attorney then contacts those persons to interview them about the facts and – if they are credible – to call them to testify as defense witnesses. However, if the parties are unavailable or not findable, then you can obtain the actual records of an earlier complaint.¹⁰

If the judge orders disclosure of the officer’s personnel records, but the agency that keeps the records refuses to comply with the court’s orders, then the state must dismiss the charges against you.¹¹

Note you may not use Pitchess materials for purposes other than your case at hand. (If there is good cause, the court may issue a protective order to keep the information secret.) Also note that you may not use Pitchess materials in unrelated cases unless a court grants permission.

Motion Denied

If a court denies a Pitchess motion, and you are then convicted of the charges against you, you can appeal the conviction.

In the appeal, you could argue that your Pitchess motion should have been granted because you showed “good cause” to gain access to the officer’s personnel file (such as that the evidence was relevant to your case). The appellate court would then determine whether denying the Pitchess motion was an “abuse of discretion.”

If the lower court failed to conduct an in-camera review of your Pitchess motion, the appellate court can opt to “remand” the case so the lower court can conduct the in-camera hearing. Only when the lower court conducts an in-camera review – and then denies the motion – can an appellate court then reverse the denial.¹²

5. Why is it called a Pitchess motion?

Pitchess motions are named after the 1974 California Supreme Court case of Pitchess v. Superior Court (1974) 11 Cal. 3d 531.

The court held that if a criminal defendant can show good cause and materiality, they have a constitutional right to in-camera review of police officer personnel files to determine if they contain information that could be used to impeach the officer’s testimony or otherwise aid in their defense.

6. What is a Brady letter?

Prosecutors and police officers may keep a Brady letter (also referred to as a Brady list), which is a list of the names of police with criminal convictions or with past incidents of lying. Officers placed on a Brady list risk termination or demotion.

If you are charged with a crime, you do not automatically have access to Brady letters. However, once you bring a Pitchess motion or related request, the judge may review and disclose credibility-related findings — such as a Brady letter — if they are material to your defense.

If the officer then testifies in your trial, your attorney could impeach their credibility with the Brady list.¹³

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Pitchess v. Brady: The Need for Legislative Reform of California’s Confidentiality Protection for Peace-Officer Personnel Information – McGeorge Law Review.
• Reconciling Brady and Pitchess: Association for Los Angeles Deputy Sheriffs v. Superior Court, and the Future of Brady Lists – San Diego Law Review.
• Good Cop, Bad Cop – Anyone’s Guess: A Review of the Pitchess Motion for Criminal Discovery in the State of California – Whittier Law Review.
• Reevaluating California’s Pitchess Process in Light of the Police Officer Misconduct Problem – Available at SSRN.
• Constructing a Better Estimate of Police Misconduct – PolicyMatters Journal.

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