California Pitchess Motions...How it Works

A California Pitchess motion is a request for information contained in an officer's personnel file.¹ Criminal defense lawyers typically raise this motion when they believe that their client has been the victim of police misconduct.

But knowing when and how to raise a Pitchess Motion is critical to its success. And that's where we come in. As a law firm comprised of former cops and prosecutors, we know the most effective ways to help ensure that we obtain every bit of evidence that is favorable to our clients.

Below, our California criminal defense attorneys² address the following:

1. Overview of a California Pitchess
Motion

2. Procedural Requirements

3. The Hearing

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Police Misconduct; Racial Profiling; California Pretrial Proceedings; Preliminary Hearings; California Jury Trials; Penal Code 148 PC California's Resisting Arrest Law; Penal Code 243(b) Battery on a Peace Officer; Penal Code 995 Motion to Set Aside the Information; Penal Code 1538.5 PC Motion to Suppress Evidence; and 1983 Civil Rights Lawsuits.

1. Overview of a California Pitchess Motion

Fortunately, our society isn't exactly a "police state". California holds police accountable for their police misconduct. If you are arrested...and, for example, you claim that the police

violated your rights,

used excessive force,

engaged in racial profiling,

coerced your confession,

fabricated or "planted" evidence, and/or

made false statements in the police report,

your California criminal defense attorney should probably file a Pitchess motion. When granted, it entitles the defense to obtain information about prior complaints (by other people) that the officer(s) engaged in the types of conduct described above.

If it turns out that the named officer has a history of complaints, this fact could be used to impeach the officer's credibility...and may help you win your case.

The history of Pitchess motions

Pitchess motions get their name from the historical 1974 California Supreme Court case Pitchess v. Superior Court. This case established standards for discovery of police personnel records and complaints against officers.³ These standards and procedures are now codified in California's evidence and penal codes.⁴

These laws try to balance the competing claims that

a criminal defendant is entitled to any information that is relevant to his/her defense which, in turn, helps to ensure a fair trial, and

that an officer has a compelling interest in maintaining the privacy of his/her personnel file (which includes all records maintained by the employer on the arresting officer, including records of internal affairs investigations, citizen complaints, records in the Human Resources department, and medical and psychological records).⁵

Pitchess motions are raised during California pretrial proceedings. And while an attorney may file the motion prior to the preliminary hearing, there is no guarantee that the motion will be held prior to that hearing. In fact, these motions are typically held after the prelim.

2. Procedural Requirements

California law requires that attorneys file their Pitchess motions in writing.⁶ Some of the requirements that must appear in the motion include (but are not limited to):

a notice of motion (which includes, among other things, the name of the defendant, the name of the officer whose records are being requested, and a description of the records sought),

a supporting affidavit or declaration,

a copy of the police report (if the motion alleges excessive force), and

proof that the motion has been served on the appropriate parties.⁷

With respect to the second requirement...that there be a supporting affidavit or declaration...there are some very specific guidelines that the attorney must adhere to in order to have even a chance of prevailing on the motion.

Supporting facts

California law prohibits granting Pitchess motions that are essentially masked as "fishing expeditions". In order to prevail on this type of motion, the attorney must establish "good cause". This means that the declaration or affidavit must state specific facts showing that the records sought are material to the "subject matter involved in the pending litigation".⁸

"A showing of 'good cause' exists if the defendant demonstrates both

a specific 'factual scenario' that establishes a 'plausible factual foundation' for the allegations of officer misconduct, and

that the misconduct would (if credited) be material to the defense."⁹

"Material" means that there is a logical link between the pending charge and the proposed defense, and that the requested information will support the proposed defense. You therefore satisfy this requirement by showing

a logical connection between the offense and the proposed defense,

the requested information (commonly referred to as "discovery") is factually specific and tailored to support the claim of officer misconduct,

the requested discovery supports the proposed defense or is likely to lead to information that will do so, and

the requested discovery would be potentially admissible during a California jury trial.¹⁰

And as Ventura criminal defense attorney Darrell York¹¹ explains, "Even given these strict requirements, the threshold for this request is relatively low. Judges generally grant California Pitchess motions as long as the declaration or affidavit states a denial of the facts as they appear in the police report or states an alternative version of what "might" have occurred."¹²

Examples of proper Pitchess requests

The following are some examples of Pitchess requests that were upheld by California courts.

In a Penal Code 148 PC California resisting arrest case, the declaration stated that the officers used excessive force "so as to make said arrest illegal and otherwise improper" and that information relating to prior complaints of excessive force against the arresting officers would help "show a tendency or propensity on the part of the arresting officers herein to engage in the use of unlawful and excessive force in the execution of the arrests".¹³

In a Penal Code 243(b) California battery on a peace officer case, the declaration established that the officer's truthfulness was material to the case by stating

"Officer Carranza claimed defendant asked him for heroin and cocaine (using the common slang terms for each) (a copy of the investigative report was attached as an exhibit to the declaration);

defendant "maintains that he never asked the officer for 'chiva' or 'powder' or negotiated for the purchase of either substance";

defendant never took possession of any packages of the purported narcotics;

it appeared Officer Carranza's statements regarding defendant's conduct were "not truthful";

evidence showing Officer Carranza had a pattern of dishonesty and filing false reports would be needed to "formulate and prove the defense in this case";

the information sought by defendant's Pitchess motion appeared relevant "to prove character traits of [Officer Carranza], to refresh recollection, and to prove conduct, custody, propensity and habit in conformity with such traits"; and

"[t]he information regarding the propensities or traits reflected in or implied by the above acts was also needed to formulate and prove the defense in this case.""

In a Vehicle Code 2800.2 VC California "felony reckless evading" case, the declaration stated that the officer made material misstatements with respect to his observations, including fabricating defendant's alleged dangerous driving maneuvers. It also stated that the defendant claimed that he did not drive in the manner described by the report and that his driving route was different from that found in the report. In addition, he claimed that a material and substantial issue in the trial would be the character, habits, customs and credibility of the officer.¹⁵

3. The Pitchess Hearing

If the judge believes that the defense has demonstrated good cause as to why the sought information is material to the case, he/she will conduct an in camera hearing. Simply put, an "in camera" hearing is one that is private rather than conducted in open court.

Both the defense and prosecution are excluded from the Pitchess hearing. The only persons permitted to be present are the officer and "any other persons the officer is willing to have present" (which is typically the custodian of records for the police department).¹⁶

During this hearing, the judge evaluates whether or not the information in the officer's personnel files is relevant to the defense claims. If the judge determines that it is, he/she is forbidden from disclosing

any information that occurred more than five years before the event that is the subject of the current litigation (unless the information is a citizen complaint that the judge finds material and exculpatory),¹⁷

facts that are so remote as to make disclosure of little or no practical benefit, and

the personal conclusions (as opposed to the disciplinary action) of any officer investigating a citizen's complaint.¹⁸

Even outside of these restrictions, the court usually doesn't simply "turn over" the entire file, but rather selects the relevant information and instructs the police department to disclose that information to the defense.

Most of the time, this includes the information of witnesses who have previously filed complaints against the officer.¹⁹ The defense attorney is then able to contact these individuals to interview them about the facts and present them as possible witnesses. When this isn't possible, California law allows the defense to obtain the actual records of those statements.²⁰

If the court orders disclosure...but the agency refuses to comply with the court's orders...the charges relating to the undisclosed information must be dismissed.²¹

Related issues / motions

Assuming the agency complies, a successful Pitchess motion could persuade the prosecution to reduce or even dismiss one or more of the alleged charges.

But when the prosecutor isn't so inclined, the relevant information could be useful in pursuing

a California Penal Code 995 motion to set aside the information (if the motion was heard prior to or in connection with the preliminary hearing), or

a California Penal Code 1538.5 PC motion to suppress evidence.

And on a final note, even if you do not prevail on a California Pitchess motion...or even on your criminal case...police misconduct could be the basis for what is known as a 1983 civil rights lawsuit. If successful, this type of civil suit entitles you to monetary damages from the officer and/or law enforcement agency.

Call us for help...

For questions about California Pitchess motions, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to law and motion in Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.²²

Legal References:

¹California Evidence Code sections 1043-1047 set forth the parameters of a California Pitchess motion.

²Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

³Pitchess v. Superior Court (1974) 11 Cal.3d 531.

⁴California Evidence Codes 1043-1047. See also California Penal Code sections 832.7 and 832.8.

⁵Garcia v. Superior Court (2007) 42 Cal.4th 63, 72. ("The Pitchess process itself requires the balancing of an accused's need for disclosure and the officer's expectation of privacy.")

See also California Penal Code 832.8 PC -- Personnel records. ("As used in Section 832.7, "personnel records" means any file maintained under that individual's name by his or her employing agency and containing records relating to any of the following: (a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. (b) Medical history. (c) Election of employee benefits. (d) Employee advancement, appraisal, or discipline. (e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.")

⁶California Evidence Code 1043 -- Peace or custodial officer personnel records; discovery or disclosure; procedure. ("(a) In any case in which discovery or disclosure is sought of peace or custodial officer [pursuant to a California Pitchess motion] personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.

⁷See same. ("(b) The motion shall include all of the following: (1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard. (2) A description of the type of records or information sought. (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records. (c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.")

See also California Evidence Code 1046 -- Allegation of excessive force by peace or custodial officer; copy of police or crime report. ("In any case, otherwise authorized by law, in which the party seeking disclosure [pursuant to a California Pitchess motion] is alleging excessive force by a peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, in connection with the arrest of that party, or for conduct alleged to have occurred within a jail facility, the motion shall include a copy of the police report setting forth the circumstances under which the party was stopped and arrested, or a copy of the crime report setting forth the circumstances under which the conduct is alleged to have occurred within a jail facility.")

⁸See endnote 7, (b)(3).

⁹Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 319.

¹⁰See same.

¹¹Ventura criminal defense attorney Darrell York uses his former experience as a Glendale Police Officer to represent clients at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.

¹²Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048. ("There is a " 'relatively low threshold' " for establishing the good cause necessary to compel in camera review by the court. ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019, 29 Cal.Rptr.3d 2, 112 P.3d 2 ( Warrick ).) Nevertheless, a defendant is not entitled to even an in camera review of police personnel files without first " 'establish[ing] a plausible factual foundation' " for the defense asserted. ( Id. at p. 1025, 29 Cal.Rptr.3d 2, 112 P.3d 2.)")

See also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024-1025. ("Counsel's affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. In People v. Hustead, supra, 74 Cal.App.4th 410, 87 Cal.Rptr.2d 875, a defendant facing a charge of felony evasion of arrest brought after a high-speed automobile chase sought Pitchess discovery of whether the pursuing officer had "a history of misstating or fabricating facts" in police reports. ( Hustead, at p. 416, 87 Cal.Rptr.2d 875.) In support of the motion, the defense declaration denied that the defendant had driven in the way or along the route described by the officer. ( Id. at p. 417, 87 Cal.Rptr.2d 875.) Presiding Justice Ardaiz, writing for the Court of Appeal in Hustead, concluded that the defendant had met his burden of making "an initial showing that the information he is seeking is material to the case at hand." ( Id. at p. 416, 87 Cal.Rptr.2d 875.) In other words, defense counsel's declaration in Hustead made allegations sufficient to "establish a plausible factual foundation" for a defense that the defendant did not drive in the fashion described in the police report and that the officer's report was untrue. ( Id. at p. 417, 87 Cal.Rptr.2d 875.)")

See also Garcia v. Superior Court (2007) 42 Cal.4th 63, 72. ("Essentially [when filing a California Pitchess motion], the defendant must propose a potential defense to the pending charge, articulate how the discovery might lead to or constitute evidence providing impeachment or supporting the defense, and describe an internally consistent factual scenario of claimed officer misconduct. Depending on the circumstances of the case, the scenario may be a simple denial of accusations in the police report or an alternative version of what might have occurred. ( Warrick, supra, 35 Cal.4th at pp. 1024-1026, 29 Cal.Rptr.3d 2, 112 P.3d 2.)")

¹³City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85.

¹⁴People v. Johnson (2004) 118 Cal.App.4th 292, 303. These were the facts that the defense alleged in their declaration that was summarily denied by the court...a mistake that the court of appeal reversed.

¹⁵People v. Hustead (1999) 74 Cal.App.4th 410, 416-417.

*It should be noted that resisting arrest, battery on a peace officer, and Vehicle Code 2800.2 VC California felony evading arrest charges are charges that are likely to trigger Pitchess motions, since they almost inevitably involve allegations of excessive force and/or officer credibility.

¹⁶People v. Woolman (1974) 40 Cal.App.3d 652, 654-655. ("Present at the in camera hearing [on the California Pitchess motion] were the trial judge, his clerk and reporter, an assistant city attorney and the police officer witness who was the custodian of the official file involved. Neither defense nor prosecution were represented. In spite of the dicta in People v. Superior Court ( Biggs) (1971) 19 Cal.App.3d 522 [97 Cal.Rptr. 118], we see nothing wrong in that procedure. To require an adversary hearing with counsel would destroy, at the outset, the very privilege that the hearing is designed to protect.")

¹⁷City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14. ("The Attorney General, appearing as amicus curiae, advances a different view, which we find persuasive. The Attorney General asserts that the " ' Pitchess process' operates in parallel with Brady and does not prohibit the disclosure of Brady information." We agree. As we recently explained in People v. Mooc (2001) 26 Cal.4th 1216 [114 Cal.Rptr.2d 482, 36 P.3d 21], the Pitchess "procedural mechanism for criminal defense discovery ... must be viewed against the larger background of the prosecution's constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant's right to a fair trial." ( Id. at p. 1225.) In the Attorney General's view, citizen complaints older than five years that the trial court after in-chambers review finds to be " 'exculpatory,' as defined by Brady," may be subject to disclosure, notwithstanding the five-year limitation in section 1045(b)(1).")

¹⁸California Evidence Code 1045 -- Peace or custodial officers; access to records of complaints, investigations of complaints, or discipline imposed; relevancy; protective orders. ("(b) In determining relevance [during a California Pitchess motion], the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure: (1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit. (c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records. (d) Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression. (e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.")

¹⁹City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84. ("As a further safeguard, moreover, the courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead (as the municipal court directed here) that the agency reveal only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question. (See Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829 [133 Cal.Rptr. 325]; Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439, 441 [168 Cal.Rptr. 33].)")

²⁰Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112. ("Nonetheless, the practice of disclosing only the name of the complainant and contact information must yield to the requirement of providing sufficient information to prepare for a fair trial. For example, in Pitchess, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, two individuals who had filed complaints against the deputy sheriffs were unavailable for interview by defense counsel. In addition, two other complainants could not recall the details of the events. ( Id. at p. 537, 113 Cal.Rptr. 897, 522 P.2d 305.) Given that showing, the Supreme Court held disclosure of additional information was required. Disclosure of the prior statements given by the unavailable complainants to the sheriff's investigators was "necessary for effective cross-examination." ( Ibid.) And disclosure of the sheriff's records was "necessary to refresh [the] recollection" of the individuals who could not remember the operative events. ( Ibid.) The Pitchess court reasoned that the defendant "cannot be held responsible for [the complainants'] unavailability or lack of memory, and he has no access to the sheriff's investigative records. Furthermore, the information which defendant seeks may have considerable significance to the preparation of his defense, and the documents have been requested with adequate specificity to preclude the possibility that defendant is engaging in a 'fishing expedition.' We therefore conclude that defendant demonstrated sufficient good cause under the appropriate standards of criminal procedure, as developed in case authority, to warrant the trial court in compelling discovery."")

²¹Dell M. v. Superior Court, In and For Los Angeles County (1977) 70 Cal.App.3d 782, 786. ("We therefore hold that if the trial court declines to exercise its contempt powers, or if the exercise of those powers proves ineffective to bring about sufficient compliance with a discovery order made after a claim of privilege (Evid.Code, s 1040) has been overruled, the charges to which the material sought to be discovered [in a California Pitchess motion] pertains must be dismissed.")

²²Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.