On July 6, 2015, the California Supreme Court ruled in the case of People v. Superior Court (Johnson) (Case S221296), that prosecutors in a criminal case may not review police officer personnel files without complying with statutory Pitchess motion protections (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), codified by Evid. Code §§ 1043 & 1045). Furthermore, the prosecution has fulfilled its obligations under Brady v. Maryland (1963) 373 U.S. 83 (Brady) simply by informing the defendant that the District Attorney’s (“DA”) Office has been informed there may be exculpatory information within an officer’s file. The prosecution is not required to bring a Pitchess motion to determine if the file actually contains Brady information.

(1)   People v. Superior Court (Johnson)

The San Francisco Police Department has a policy to maintain a list of its police officers who have “potential Brady material” within their personnel file. This list is shared with the San Francisco District Attorney’s Office. In the case in question, two officers’ names were contained on the list, and the DA brought a Pitchess motion to review the officers’ file, solely based on their names being listed.

The Superior Court and the Appellate Court held that the police officer personnel files were in the constructive possession of the DA as part of the prosecution team, thus creating an obligation for the DA to review every police officer’s personnel file in every case to meet their Brady obligations.

(2)   Mostly A Return To The Status Quo

Under the California Supreme Court’s ruling, the privacy of peace officer’s personnel files is returned to the status quo. Access is limited through the use of Pitchess motions. However, one issue is resolved, likely in favor of the prosecution. Prior to this ruling, in cases where the police department has communicated a concern regarding specific officers, there was a question as to whether the DA must bring a Pitchess motion to satisfy its obligation under Brady. In other words, does the DA need to follow-up or investigate the lead?

The California Supreme Court answered that with a strong no. To comply with Brady, all the DA must do is provide the same information they received to the defense: that the officer’s names appear on a list of officers with potential Brady material. It is up to the defense to decide if they wish to bring the Pitchess motion, as the DA does not have possession, constructive or otherwise, of the exculpatory materials.

(3)   Implications For Pitchess Motions Going Forward

These are minor changes and mostly affect the duties and obligations of the DA. DA originated Pitchess motions are a rarity for smaller municipalities, where such Brady lists don’t exist. For the vast majority of cities, this ruling will have no effect. Defendants will continue their relentless search for the “bad cop” who set them up, supported by the drum beat of bad press for police departments.

While the overturned ruling dramatically increased the obligations of the District Attorney’s Office, the California Supreme Court clarified the minimal obligations imposed by Brady. By limiting the duty to disclose to simply passing along the tip from the police department and not requiring the DA to investigate the tip further, it is even more unlikely that DA’s will be filing Pitchess motions in the future. The California Supreme Court’s ruling was clear and explicit, and unlikely to be challenged in the near future.

For questions regarding the ruling and its implications, please contact Douglas White at Churchwell White LLP: (916) 468-0950 or doug@whitebrennerllp.com.