There are times when police overstep the bounds of their authority and are dishonest in some aspects of their work or use excessive force or coercion in the course of an arrest or interrogation. If a defense attorney has cause to believe a defendant has been the victim of police misconduct, then he/she can file a Pitchess Motion pursuant to Evidence Code 1043 and 1045 EC.
Ordinarily, the personnel files of police officers are confidential under Penal Code 832.7(a). It is only in an investigation when these files are accessible to uncover exculpatory material that can be used to impeach or impugn the credibility of the police officer in question.
The focus of the motion is to request the personnel file of the subject police officer that can reveal past incidents of misconduct. If the record does show that this officer has had complaints of misconduct or had been investigated and/or reprimanded, your attorney might be able to make a motion to dismiss the charges, suppress evidence or at least negotiate a plea to a lesser offense.
Police misconduct that can be the subject of a Pitchess Motion include:
- Coercion or excessive force in an arrest
- Use of force in obtaining a confession
- Racial profiling in stop and detain or arrests
- Planting of evidence
- Fabrication in preparation of a police or investigation report to justify a search or an arrest
If a defendant is charged with resisting arrest and/or assault on a police officer who exhibits no signs of bruises or injury and the defendant contends he/she did not resist, or was defending himself while being beaten, then the defense attorney should consider filing a Pitchess Motion to show that an officer has a propensity for violence or had had previous complaints of lying when preparing police reports.
The defendant in Pitchess v. Superior Court had been charged with resisting arrest and assaulting 4 LA police officers and asserted self-defense. His defense attorney requested the personnel files of the officers on the basis that they may have prior incidents of assault or other misconduct.
The qualifying justification for requesting an officer’s file is that there must be a good faith basis for doing to. A criminal defendant has a right to due process including a fair trial and “an intelligent defense in light of all relevant and reasonably accessible information.” Hill v. Superior Court (1974).
The Pitchess court allowed the defendant access to the officers’ files. The names of persons who had previously filed complaints against one or more of the subject officers were available but the defense asserted that they either did not recall the complaints or were unavailable. Consequently, the court felt that the defendant’s investigative efforts were insufficient through no fault of his own and that additional records were needed as character evidence to demonstrate the officers’ tendency to use violence.
A defendant does not have an absolute right to an officer’s personnel file. A court has discretion to deny it if there is no showing of “good cause.” This would entail an explanation of why the facts of the case constituted officer misconduct and that the misconduct was relevant or material to the defense in the case. For instance, if your attorney alleges an officer planted evidence, the mere assertion may not be enough to grant a Pitchess Motion without more. The officer or the agency that has the officer’s file can assert a compelling interest in keeping the file confidential and privileged.
Finally, the request for certain information in the file must be specific and related to the charge. If the offense is drug possession, then requesting information from the file on police brutality or excessive force complaints is not relevant unless the defendant was beaten and/or forcefully searched. It also is not relevant to request prior complaints of excessive force to justify use of force on a police officer on a claim of unlawful arrest since you may not use force to resist unlawful detention.
A Pitchess Motion is a pretrial motion. It may be brought prior to your preliminary hearing but is commonly filed following the preliminary hearing. The motion is to include:
- Identification of the court and defendant
- Name of the officer whose records are sought
- Name of the agency that has custody of the records
- Description of the records sought and the information they might contain
- Affidavit from the defense attorney with reasons supporting “good cause” for the records
- Proof of service on the agency having custody of the records
If the motion is granted, the file is brought to the judge for an in-camera inspection of the file. The defense is not entitled to be present at the in-camera review.
Showing “good cause” is the main or determining factor in whether a court grants the motion. Your defense attorney has to prepare an affidavit to accompany the motion and be as specific as possible in outlining the factual scenario of the case in justifying the release of the officer’s confidential records.
The affidavit has to relate all the facts of the underlying incident and any facts that support your argument that the officer committed an act of misconduct. The misconduct then has to relate to why the misconduct is material or linked in some fashion to the defendant’s case. There is no requirement that the attorney have direct knowledge of prior complaints of misconduct by this officer; only that he/she has been informed and believes the officer had previously engaged in misconduct.
Examples of “good cause” have to include an allegation that the officer did something wrong.
- Officers allege the defendant discarded a controlled substance while fleeing officers who were investigating a drug transaction. The defendant claims he never possessed the drug and that police do not know either or charged defendant knowing that someone else had possession. Also, the defendant had very little money on him, which may be inconsistent with the allegation he tried to buy drugs that other evidence shows was far more than what he had on him. These facts may show that specific facts reported by the officer were lies. It is also a plausible version of events.
- A confession is obtained after the defendant has been in custody at a police station for 16 hours after his arrest. He has signs of bruises on him and exhaustion. A defense attorney can cite the defendant’s physical appearance when he first meets his client, the bruises on his body, medical reports of exhaustion and the length of time the defendant was in custody before a confession was obtained and the attorney was summoned. In his motion, the attorney can allege the officer who obtained the confession lied about the defendant’s cooperation and consent to giving the statement and that the bruises were on the defendant when arrested. He may reference witness statements stating that no visible bruises were on the defendant when arrested. In this instance, defendant can show good cause in requesting prior complaints of coercion in obtaining confessions.
- An African-American defendant driving in an exclusive gated community is pulled over for swerving and showing signs of intoxication and is arrested on a DUI. The defendant can point to inconsistencies in the police report and witness statements that dispute the officer’s assertions. The defendant’s motion can request the officer’s file for prior complaints of the officer lying about justifying an arrest or that he has a history of aggression against African-Americans that indicate racial profiling.
If the court grants the Pitchess Motion, then an in-camera inspection of the officer’s file is conducted in chambers without the presence of the defense attorney. The judge will see if any relevant information material to the defendant’s case is present. If so, then only that information will be released to the defendant.
Information that may not be disclosed also includes:
- Complaints or other information against the officer occurred more than 5 years before the alleged misconduct
- Personal comments or conclusions made by other officers investigating a complaint
- Facts that are too remote to the allegations of misconduct
If you are successful and the judge finds relevant information, he/she will only release contact information of the persons who filed complaints of excessive force, coerced confessions or racial profiling for example. If you are unable to contact these people despite good faith efforts or their recollection is faulty, then you can request more specific information from the file including records of the actual complaints.
If the agency refuses to turn over the records, charges against you must be dismissed.
If your motion is denied and you are convicted at trial, you can appeal your conviction based on the wrongful denial of your motion. If the appellate court agrees, the matter is sent back to the trial court judge to conduct an in-camera review. If relevant information is uncovered, you can use the information to request a new trial by showing that disclosure of the information would likely have affected the outcome of your trial.
You can use the information obtained from the officer’s file to file a motion to set aside the information under Penal Code 995 if filed before or in conjunction with your preliminary hearing.
Otherwise, you can file a 1538.5 PC motion to suppress evidence illegally obtained by police misconduct.