On August 26, 2019, in Association for Los Angeles Deputy Sheriffs v. Superior Court, the California Supreme Court reversed a Court of Appeals ruling which enjoined the Los Angeles County Sheriff's Department from disclosing to the Los Angeles County District Attorney's office the identities of certain deputies which the Sheriff's Department had placed on an internal “Brady” list.
The Court ruled police can alert prosecutors about officers who have misconduct in the background. The Brady list refers to the seminal United States Supreme Court case of Brady v. Maryland, in which the Court held that prosecutors have a duty to disclose material, exculpatory evidence to the defense to ensure fundamental fairness and due process.
Brady has since been extended in several other important rulings to include the duty to disclose evidence which would impeach, meaning undermine the credibility of, the prosecution's witnesses. To give readers a better understanding of this ruling, our California criminal defense lawyers are prodiding an overview below.
Impeachment Evidence Against Law Enforcement Witnesses
In the vast majority of criminal cases, a member of law enforcement - either the officer or officers who responded to the scene or a detective who conducted follow-up investigation - will testify for the prosecution.
One potential source of impeachment evidence against these witnesses is the officer's past history of professional misconduct, if any. It is therefore common for defense counsel to seek evidence related to an officer's past disciplinary history.
For example, if the defendant claims that he or she was subjected to a search because of racial bias, it would be relevant to the defense to learn if the officer had been disciplined for past instances of racially biased policing.
Similarly, if the defendant being charged with resisting arrest claims that in fact they were subjected to excessive force, prior instances of the arresting officers being found to have used excessive force will be important to impeach the officers' credibility on the stand.
California Pitchess Motion
In California, the process for obtaining these otherwise confidential personnel records of law enforcement officers is with a governed by statute as well as case law.
The “Pitchess” standard, after a case of the same name, requires a defendant seeking law enforcement personnel records to first set out good cause to believe that the officer in their case did in fact engage in misconduct.
If the court is satisfied that this threshold has been met, it will conduct an in camera - meaning behind closed doors - review of the officer's personnel file and determine if any relevant records exist.
If so, the judge may disclose them to the parties. Exactly how closely related to the claimed misconduct in a particular case the instances of prior misconduct must be to be discoverable is a source of frequent litigation.
As you can see, these two principles are potentially in conflict. On the one hand, the prosecutor has a duty to disclose the favorable impeachment evidence available to the defense under Brady, while the prosecutor is separately forbidden to do so by the Pitchess regime absent a finding of good cause and an in camera review by a judge.
Law Enforcement's “Brady Lists”
To address this tension, some law enforcement agencies have begun assembling so-called “Brady lists,” which contain the names of officers which the agencies have identified as potentially having exculpatory or impeaching information in the officers' personnel files.
While placement on the Brady list in of itself is not exculpatory evidence, a defense attorney who discovers that an officer involved in his client's case has been placed on such a list would be alerted to the fact that a Pitchess motion to further investigate the officer's prior misconduct is likely necessary.
The Petitioner in the recent Supreme Court case is a trade association representing deputy sheriffs in Los Angeles. The Association filed suit to obtain an injunction preventing the Sheriff's Department from disclosing the names of deputies on the internal Brady list, arguing that such disclosure is impermissible under the Pitchess standards.
The trial court agreed and granted an injunction, but carved out an exception for cases in which the officer is a potential witness in a pending criminal case and disclosure of the officer's presence on the Brady list is made to the prosecuting agency handling the case.
The Association appealed, arguing that this exception itself violated Pitchess. The Court of Appeals agreed, and would have eliminated this exception to the injunction against disclosure.
California Supreme Court Reversed Court of Appeals
The Supreme Court reversed the Court of Appeals, holding narrowly that when a law enforcement agency creates an internal Brady list and an officer on that list is a potential witness in a pending criminal case, the law enforcement agency may disclose that officer's presence on the Brady list to the prosecuting agency.
The Supreme Court was aware, of course, that once these Brady list “alerts” are shared with the prosecution, the prosecutor will likely have a duty under Brady and other cases to share the fact that their witness is on the Brady list with the defense.
A Pitchess motion will likely then follow to determine which personnel records are appropriate for disclosure. By allowing these Brady list alerts to be shared between law enforcement and the prosecution team, the Supreme Court, in its opinion, “harmonizes” the Brady and Pitchess standards.
In the words of the Supreme Court, “to cut off the flow of information from law enforcement personnel to prosecutors would be anathema to Brady compliance.” It is unclear whether the Supreme Court's holding in this case will substantially increase the amount of favorable evidence turned over to the defense in the mine-run of cases.
Certainly, prosecutors will be aware more of the time that officers involved in their cases potentially have disciplinary histories which they may be required to disclose to the defense.
How prosecutors will respond to this new information and how the Supreme Court's holding will affect the frequency or success of Pitchess motions brought by the defense remains to be seen.
The Supreme Court's opinion involves a thorough statutory and case law analysis highlighting what it feels are the potential tensions between Brady and Pitchess and is worth reading in full for those interested in this topic.
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