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The Ins and Outs Of <i>Pitchess</i> Motions
By Mark G. Harvis

The objective of this article and self-study test is to describe the important aspects of the Pitchess discovery procedure. See Pitchess v. Superior Court, 11 Cal.3d 531 (1974). Readers will learn about the showing a defendant must make to obtain discovery; the type of evidence that is discoverable; and important cases that have interpreted the procedure.

In 1978 the procedure for obtaining law enforcement personnel records set forth in Pitchess v. Superior Court was codified in Evidence Code Sections 1043-1045. In so doing, the Legislature "not only reaffirmed but expanded" the discovery scheme enacted by the California Supreme Court. City of Santa Cruz v. Municipal Court, 49 Cal.3d 74 (1989). Pitchess discovery is available in a variety of contexts, including criminal and civil cases as well as administrative proceedings. Evidence Code Section 1043(a).

The Pitchess process starts when the moving party, usually the defendant in a criminal case, files a written motion naming specific officers about whom discovery is sought. An affidavit or declaration setting forth good cause for and materiality of the requested information accompanies the motion. Evidence Code Section 1043. The declaration is the key to discovery in a Pitchess motion.

As held by city of Santa Cruz, the threshold showing for the requested information is "relatively low." As held by Pitchess itself, the strict rules governing civil discovery do not apply. The defendant cannot be required to give a personal statement and the declaration may be made upon information and belief. The declarant, usually defense counsel, is not required to disclose the source of the information or how it was obtained. Garcia v. Superior Court, 42 Cal.4th 63 (2007).

The critical question in Pitchess jurisprudence is how much detail the defendant must include in his or her declaration to obtain discovery. In Warrick v. Superior Court, 35 Cal.4th 1011 (2005), the California Supreme Court set forth the minimal showing a defendant must make in order to obtain an in camera review of police personnel records. As held by Warrick, to obtain an in chambers review, a defendant "need only demonstrate that the scenario of alleged officer misconduct could or might have occurred."

The Supreme Court in Warrick specifically rejected arguments that the defense should establish that the defense scenario was "objectively plausible" or that there was a "reasonable probability" the defense version of events occurred. Under Warrick: A trial court cannot deny a Pitchess motion simply because it believes the defense version is unlikely. A trial court hearing a Pitchess motion is not tasked with determining whether a defendant's allegations are credible or believable. A trial court does not weigh or assess the allegations contained in a Pitchess motion and does not determine whether they are persuasive. A defendant does not have to provide corroboration of his or her version of events and does not have to provide a motive for the alleged officer misconduct.

The moving party is not required to dispute every single allegation contained in the police reports. The Supreme Court in Warrick ruled that the declaration's factual scenario "may consist of a denial of the facts asserted in the police report." An example of a sufficient "denial" is found in People v. Hustead, 74 Cal.App.4th 410 (1999). "By denying the factual assertions made in the police report - that he possessed and discarded the cocaine - defendant established 'a reasonable inference that the reporting officer may not have been truthful.'"

The Supreme Court in Garcia v. Superior Court further explained that the declarant could choose simply to deny the events depicted in the arrest report to avoid revealing privileged information. "For example, in some cases, instead of providing defendant's statement of how events unfolded, the affidavit could simply deny the incident happened as described in the police report."

People v. Thompson, 141 Cal.App.4th 1312 (2006), on the other hand, ruled under its facts that the defense must make a compelling and detailed showing, otherwise Pitchess discovery would be denied. This case is something of an "odd man out" and is of dubious continued vitality in light of Warrick, which preceded Thompson, and Garcia, which came after. It should probably be limited to its facts.

Pitchess has strict time limits, which are found in Code of Civil Procedure Section 1005(a)(6). Evidence Code Section 1043(a). If the time limits are not followed, absent good cause or a waiver, the hearing on the Pitchess motion must be denied. Evidence Code Section 1043(c). In cases where time is short, however, Code of Civil Procedure Section 1005(b) allows the court to shorten time. Local rules, such as Los Angeles Superior Court Rule 6.5, describe how an order shortening time is obtained.

The Pitchess motion must be served upon the governmental agency having custody of the officer's records. Evidence Code Section 1043(a). The District Attorney is entitled to notice of the proceeding but is not a party to the Pitchess litigation, which is "third-party" discovery. Nor is the prosecution entitled to argue the motion but they may clarify or explain items about which the court has questions. Alford v. Superior Court, 29 Cal.4th 1033 (2003).

As held by Garcia v. Superior Court, the declaration of counsel may be filed under seal when it is necessary for the defense to reveal attorney-client statements or divulge work product in order to establish good cause for discovery. The court has discretion to seal a declaration but is not bound by "naked claims of confidentiality." The trial court is not required to grant a defendant's motion to seal the declaration but may take other measures, including asking for an amended declaration of counsel or suggesting that the declaration simply deny guilt.

Unless waived by the law enforcement agency, a Pitchess hearing is held to determine whether good cause has been shown for discovery. Evidence Code Sections 1043(c). If the motion is granted the court holds an in-camera hearing with the law enforcement agency's custodian of records. Evidence Code Sections 915, 1045(b). The attorney representing the police may attend the in camera hearing but the prosecutor may not. People v. Woolman, 40 CA3d 652 (1974).

In People v. Mooc, 26 Cal.4th 1216 (2001), the Supreme Court set forth the procedure that must be followed in order to create an adequate record of the in-camera hearing for appellate review: The custodian of records must be examined under oath in the presence of a court reporter. The custodian is required to present to the court all "potentially relevant" documents. If the custodian has a question whether a particular document is relevant, it should be presented for the court's review. The custodian of records must tell the court for the record what other documents not presented to the court were included in the complete personnel record and why those were deemed irrelevant or otherwise non-responsive to the Pitchess motion.

Under Mooc, the trial court must make a record of all documents it examines; if the documents are not voluminous, the court may copy them and place them in a confidential file; and the court may prepare an index of all the documents reviewed or it may state for the record what documents have been examined.

Evidence Code Section 1045(b) requires that the court exclude from disclosure information concerning complaints more than five years old, the conclusions of any officer investigating personnel complaints filed pursuant to Penal Code Section 832.5, and facts which are so remote as to make disclosure of little or no practical benefit. Evidence Code Section 1045(b). If a complaint was sustained, the discipline imposed upon the officer is discoverable. City of San Jose v. Superior Court (Michael B.), 5 Cal.4th 47 (1993).

The court has the authority to direct that the custodian of records examine the personnel files and bring to court evidence that is favorable and "material" to the defense. City of Los Angeles v. Superior Court (Brandon), 29 Cal.4th 1 (2001) See also Brady v. Maryland, 373 U.S. 83 (1963). Trial courts are specifically empowered to examine and disclose Brady material contained in police personnel files, which is discoverable without regard to the five-year limitation applicable to Pitchess discovery. City of Los Angeles v. Superior Court (Brandon), 29 Cal.4th 1 (2001); Abatti v. Superior Court, 112 Cal.App.4th 39 (2003).

Pitchess discovery is available for a wide variety of purposes and in many contexts. The allegations in the declaration of counsel inform the court of the type of complaint information which should be disclosed. To be discoverable, the information does not have to be admissible and it does not matter whether the complaints were sustained. Cadena v. Superior Court, 79 Cal.App.3d 212 (1978).)

Defendants may argue that there is no case limiting discovery to the officer who wrote the arrest report or to officers who have already testified at, for example, the preliminary hearing. And there may be substance to this argument because case law has consistently allowed discovery about all officers directly involved in the "fracas," which is the language used in older cases involving allegations of excessive force. Hinojosa v. Superior Court, 55 Cal.App.3d 692 (1976).

The court initially discloses the names, addresses, and telephone numbers of complainants and witnesses, as well as the date and perhaps the location of the complaint. City of Azusa v. Superior Court, 191 Cal.App.3d 693 (1987). If this information proves to be insufficient, the moving party can seek supplemental discovery and the court at that time should disclose the statements of the persons who either were unavailable for interviews; could not remember the details of the events about which they had complained, cannot be located, or refuse to cooperate. Alvarez v. Superior Court, 117 Cal.App.4th 1107 (2004).

When the court makes a disclosure, it must issue a protective order limiting use of the disclosed information to the specific case in which it was disclosed. Evidence Code Section 1045(e); Alford v. Superior Court. The court may issue additional protective orders but only "if it concludes upon a specific showing of good cause that further protection is needed." Evidence Code Section 1045(d); Chambers v. Superior Court, 42 Cal.4th 673 (2007).

Mark G. Harvis is a deputy public defender at the Los Angeles County Public Defender's Office.

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