Pitchess Motion & the Public Inspection of Police Records

A Pitchess motion is a defendant’s request to inspect a law enforcement officer’s personnel file for evidence of police misconduct. Defense attorneys typically bring a Pitchess motion as part of the pretrial process when they suspect officers may have acted improperly, such as by

• filing a false police report or
• using excessive force.

California Senate Bill 1421 was signed into law in September 2018. This new law makes a Pitchess motion unnecessary for some types of information requests.

Under SB 1421, four types of police records are now open for public inspection. These records pertain to the situations when:

1. An officer shoots his gun at a person;
2. An officer uses force against another person and the result is death or great bodily injury;
3. There is a prior finding that an officer committed a sexual assault; and,
4. An officer commits a dishonest act (such as perjury or filing a false report).

After Senate Bill 1421, Pitchess motions are still relevant if:

• A defendant seeks information from an officer’s personnel file; and,
• That information is not authorized for inspection under SB 1421.

Examples of information a defendant may seek that is not covered within SB 1421 may include:

• Records that show that an officer racially profiled; or,
• Records that show that an officer coerced a confession; or
• Records show other prejudicial acts or the falsification of evidence/testimony.

In accordance with Pitchess motions procedures and standards, a Pitchess motion must include:

1. A description of the type of records or information the defendant seeks; and,
2. A showing of “good cause” for the records’ release.

If the judge decides that a Pitchess motion shows “good cause” for disclosing an officer’s personnel records, the judge holds a private “in camera” hearing to decide which records are relevant to the case.

Our California criminal defense attorneys will address the following in this article:

• 1. When can defendants gain access to police personnel files?
• 2. What has been the effect of Senate Bill 1421?
  • 2.1. Types of records open to public inspection
  • 2.2. Specific “records’ that may be released
  • 2.3. Redacting of information
  • 2.4. Disclosure of other records prohibited
• 3. How do you file a Pitchess motion?
  • 3.1. Procedural steps
  • 3.2. Showing of “good cause”
  • 3.3. “In camera” hearings
• 4. What are the possible outcomes of a Pitchess motion?
  • 4.1. Motion granted – Information disclosed
  • 4.2. Motion denied – No information disclosed
• 5. Why is it called a Pitchess motion?
• 6. What is a Brady letter?

1. When can defendants gain access to police personnel files?

A strong defense to some criminal accusations is to show that a police officer committed misconduct against the accused. Some forms of misconduct are when officers:

• Use excessive force,
• Racially profile,
• Coerce confessions,
• Lie in a police report, and
• Plant evidence.

In misconduct cases, police records – in particular an officer’s personnel file – serve a very important source for relevant evidence. Personnel files essentially allow a criminal defendant to see if the arresting officer, in the defendant’s case, committed some type of misconduct in past cases. A showing of any type of pattern of misconduct would be critical to build an effective defense.

Under California law, defendants can attempt to obtain information from an officer’s personnel file by either:

1. Requesting this information pursuant to SB 1421; or,
2. Filing a Pitchess motion with the court.¹

2. What has been the effect of Senate Bill 1421?

California Senate Bill 1421 does four important things. These are that it:

1. Makes certain police records open to public inspection;
2. Specifies what types of “records” are eligible for release;
3. Provides instructions on redacting certain information; and,
4. Prohibits disclosure of information in an officer’s personnel file in other cases.

2.1. Types of records open to public inspection

Under SB 1421, there are four types of personnel records that are open to public inspection. These are:

1. Records relating to an incident, or investigation, involving a police officer shooting his gun at a person;
2. A record relating to an incident, or investigation, involving a police officer using force against a person, and the result is death or great bodily injury;
3. Records relating to an incident in which there was a finding that a police officer engaged in sexual assault; and,
4. Records relating to an incident where there was a finding that an officer acted dishonestly.²

As to the fourth category of records, dishonest acts may include:

• Perjury;
• False statements;
• Filing false reports;
• Destroying evidence;
• Falsifying evidence; and,
• Tampering with evidence.³

2.2. Specific “records’ that may be released

In the four scenarios above, SB 1421 authorizes the public inspection of “records” found in a police officer’s, or other law enforcement officer’s, personnel file.

According to the Senate Bill, “records” include such items and information as:

• 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.⁴

2.3. Redacting of information

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

The information that gets redacted includes:

• Personal information (e.g., addresses, telephone numbers, and names of family members);
• Confidential medical or financial information;
• Information prohibited by federal law;
• Information the disclosure of which 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.⁵

2.4. Disclosure of other records prohibited

Senate Bill 1421 does not provide for the full disclosure of all records within an officer’s personnel file. Public inspection is only available for the four types of records specifically listed in the bill (please see 2.1 above).

The disclosure of any other information from a personnel file is prohibited under the new law, unless allowed under Section 1043 of the Evidence Code.⁶

California Evidence Code 1043 EC applies to information contained within an officer’s personnel file. EC 1043 states that this information is privileged, and thus not obtainable, unless a defendant files – and is successful in bringing – a Pitchess motion.

This means Pitchess motions are still relevant under California law; and, they must get filed to obtain records not authorized under SB 1421.

3. How do you file a Pitchess motion?

California Evidence Code sections 1043 and 1045 outline the process for filing a Pitchess motion. The process essentially includes three important elements. These are:

1. Procedural steps for filing the written motion;
2. A showing of “good cause;” and,
3. An “in camera” hearing.

3.1. Procedural steps

A defendant files a Pitchess motion before the beginning of his criminal jury trial, typically before the preliminary hearing.

California law requires that criminal defense attorneys file their Pitchess motions in writing.⁷ Under Evidence Code 1043 EC, a Pitchess motion must include:

1. Identification of the criminal court case, the defendant, or 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 that are being sought;
3. Proof that the defendant has notified the agency that holds the records of the motion and proof of service; and,
4. An affidavit showing “good cause” for the disclosure of the records (this is often written and signed by the defendant’s criminal defense attorney).⁸

3.2. Showing of “good cause”

The affidavit showing “good cause” is the most important part of a California Pitchess motion.

A showing of “good cause” exists if the affidavit sets forth both:

1. A specific factual scenario that supports allegations of officer misconduct in the defendant’s case; and,
2. Reasons why the misconduct would be material to the defendant’s defense.⁹

Example:

Wendell is arrested for attempted possession of a controlled substance (per California Health & Safety Code 11350 HS), after an undercover officer claims that Wendell tried to purchase drugs from him. Wendell asserts that the officer was lying.

In order to obtain information within the officer’s personnel file to support his defense, Wendell files a Pitchess motion. The “good cause” affidavit asserts that, in fact, 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.²⁵

Please note that for police misconduct to have “materiality” to the pending litigation, there must be:

1. A link between the criminal charges in the case and the defense; and,
2. A showing why the requested information would make a difference to the defense.¹⁰

Example:

Giovanni is 14 years old in Long Beach. Peace officers confront him and a friend outside a party, conduct a pat-down search on him, and find that he is carrying a concealed screwdriver. Giovanni is then charged with carrying a concealed dirk or dagger, per Penal Code 21310.

The police report claims that the officers searched Giovanni because he appeared to be a minor violating a local curfew, and because he and his friend appeared to have just been in a fight.

Giovanni and his defense counsel file a Pitchess motion requesting information from the officers’ files that might establish a history of dishonesty. Their argument is that the officers may have been lying about the appearance of Giovanni and his friend—and that the search that turned up the screwdriver may have therefore been improper under California’s search and seizure laws.

The court, though, rejects the motion because – even if the law enforcement officers were lying about having reason to believe that Giovanni had been in a fight – they still had grounds to search him since he was obviously a minor and was out after curfew.

3.3. “In camera” hearings

If the above procedural requirements are meant, 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 following parties are not present at the hearing:

• The defendant;
• The defendant’s lawyer; and,
• The prosecutor / district attorney

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 (usually the custodian of records for the police department).¹¹

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 the defendant’s defense. Only information that the judge determines is relevant will be disclosed to the defendant. The judge does not serve as a trier of fact and consequently does not decide credibility or weigh the evidence.¹²

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

1. Information about complaints against the officer(s) that occurred more than five (5) years before the alleged police misconduct in the defendant’s 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 that disclosing them would have little or no practical benefit.¹³

Example:

Rachel has been charged with Penal Code 647(b) PC prostitution and solicitation after being arrested in a “sting” operation in the city of Los Angeles. Her main defense is that Officer Matthews, who arrested her, lied about what occurred while he was operating undercover and posing as a potential “john.”

Rachel and her attorney file a Pitchess motion to see if there is any information in Officer Matthews’ file that would support her argument. The judge grants the motion and then reviews Officer Matthews’ file at an in camera hearing.

The court does find that there was an investigation of Officer Matthews for lying in a police report—but that occurred almost 10 years ago. The judge also finds that Officer Matthews cheated on a test at the police academy more than 20 years ago.

The court does not turn over information on the investigation to Rachel and her lawyer because it occurred more than 5 years ago. He also does not provide them with information about Officer Matthews’ cheating, since he deems that information too remote to be relevant to Rachel’s defense.

Note that recipients of Pitchess materials may not reveal them for other purposes than the case at hand. And if there is good cause, the court may issue a protective order to keep the information secret.¹⁴

4. What are the possible outcomes of a Pitchess motion?

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

1. Granted, and information is disclosed; or,
2. Denied, and information is not disclosed.¹⁵

4.1. Motion granted

If a court grants a Pitchess motion, and the judge finds records relevant to a defendant’s defense, the records are not typically turned over. Rather, the judge provides the defendant the name and contact information of anyone that previously filed a complaint against the officer.¹⁶

The defendant’s attorney then contacts those persons to interview them about the facts and can present them as possible witnesses.

However, if the parties are unavailable or not findable, then the defendant can obtain the actual records of an earlier complaint.¹⁷

Please also note that 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 the defendant.¹⁸

4.2. Motion denied and information not disclosed

A defendant can always use the California criminal appeals process if he is unsuccessful with his Pitchess motion.

If a court denies a Pitchess motion, and the defendant is then convicted of the charges against him, he can appeal the conviction. The appellate court would then determine whether denying the Pitchess motion was an “abuse of discretion.”

In the appeal, the defendant would argue, in part, that his Pitchess motion should not have been denied because he showed “good cause” to gain access to the officer’s personnel file.

If the lower court never conducted an in-camera review on the 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.¹⁹

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.

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. And if they testify in trial, the defense could impeach their credibility.

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