Discovery and Admissibility of Police Internal Investigation Reports
| Jurisdiction | Colorado,United States |
| Citation | Vol. 12 No. 11 Pg. 1745 |
| Pages | 1745 |
| Publication year | 1983 |
1983, November, Pg. 1745. Discovery and Admissibility of Police Internal Investigation Reports
There was a time when a criminal defendant charged with the offense of assaulting a police officer had few tools at his disposal to challenge the credibility of the officers testifying against him. One strategy that has been used with growing frequency is the discovery and use at trial of police internal investigation reports (referred to as "S.I.B.," the Denver Police Department acronyn for Staff Inspection Bureau). The flow of requests for these heretofore secret reports has produced a series of significant court decisions in Colorado. Contemporaneous with this trend had been the adoption of the Colorado Rules of Evidence ("C.R.E.") which, although they do not substantially change existing law, place into sharp focus the admissibility of evidence gleaned from such discovery.
It is the purpose of this article to review these cases, as well as decisions from other jurisdictions, and to discuss the right of the criminally accused in the appropriate case to discovery of S.I.B. material and its use at trial.(fn1)
The charge of assault on a police officer(fn2) (or, for that matter, resisting arrest)(fn3) can arise in a variety of contexts. The typical case begins with a police call to a disturbance reported by a citizen or during a routine traffic stop. Often, but not always, more than one officer responds to the scene. The soon-to-be defendant, perhaps interpreting the police stop as an implicit but unjust accusation, resists inquiries as to his identity.(fn4) Wishing to maintain control and interpreting the individual's reticence as cause to see him as a suspect, the officer becomes more forceful and demanding. The battle of wills escalates, the officer over-reacts and the suspect finds himself a defendant in an assault on a police officer case. Both sides claim the other used excessive physical force.
Since this type of case rarely involves witnesses other than police officers, the successful defense of such a case hinges on the ability of defense counsel to call into question the credibility of the police officers involved. Laywitnesses' backgrounds can be investigated and discovered, and impeachment material can be developed,(fn5) but relevant specifics concerning a police officer's past conduct is often shrouded in quasi-secrecy.
Citizen complaints against the conduct of police officers are handled by a special division within the police department. In Denver, for example, the S.I.B. is staffed by a supervising commander, nine sergeants and two lieutenants. The officer assigned to the case, usually a sergeant, has the responsibility of investigating the complaint and interviewing witnesses. Witnesses are advised that their statements will be kept confidential. Once the report is completed, it is sent up the chain of command with a recommendation as to whether the complaint should be sustained, not sustained, exonerated or unfounded.
The chain of review includes the District Commander, the Division Chief (e.g., patrol), the Chief of Police and, in the event of a sustained complaint, the Manager of Safety. Only sustained complaints in which an officer is found guilty of wrongdoing can result in sanctions against the officer. These sanctions range from oral reprimand to dismissal of the officer with a referral to the district attorney for criminal charges.(fn6)
Assume defense counsel had a suspicion that a particular officer had been investigated in the past concerning excessive use of force or improper conduct and wanted to investigate these prior complaints in preparing his assault on a police officer defense. Any such out-of-court efforts to gain access to these complaints would be met with at least three legitimate obstacles.
First, access to these records can be denied by the S.I.B. records custodian
S.I.B. records of police officers can be relevant and, in some cases, crucial for an effective defense against the charge of assault on a police officer. The first step to gaining access to S.I.B. reports is a motion for particularized discovery of material held by other government personnel under Colorado Rules of Criminal Procedure Rule 161(d). While it has been held that internal police documents are not within the purview of a pretrial discovery order,(fn9) Rule 161(d) allows for the court to issue a subpoena to the S.I.B. records custodian for production of the documents. The motion must set out the pertinent facts of the charge which, if contested by the defendant, make prior complaints against the subject officers relevant.
The problem facing most defendants is that they may not be aware of prior specific complaints against an officer. In Brady v. Maryland and its progeny,(fn10) it was held that a request for specific exculpatory material must be made. Thus, it would seem that a defendant in a police case could rarely prove his threshold claim for discovery purposes. However, despite this, the courts do not require that knowledge of specific complaints be alleged or pleaded in the motion. A criminal defendant need not allege facts which he does not know in order to obtain discoverable material.(fn11) This is especially true in the case of S.I.B. reports which, by their nature, enjoy a qualified privilege and are not accessible through normal channels.
The case of Walker v. People(fn12) concerned the regulations of discovery, but did not involve the special problems that attend S.I.B. material. It was not until the Colorado Supreme Court opinion in Martinelli v. District Court(fn13) that attention was focused on the unique discovery problems of S.I.B. files.
In Martinelli, petitioners were defendants in a civil suit alleging assault by an arresting police officer and negligence in the selection, supervision and retention of the individual police officers. These defendants filed an original proceeding seeking to prohibit the trial court from enforcing an order granting discovery of the S.I.B. files of the individual officers or, in the alternative, requiring the court to conduct an in camera examination of the files prior to enforcement of the order. The court granted the alternative relief, requiring the trial judge to implement an in camera balancing process. Nonetheless, it upheld a civil plaintiff's right to disclosure of S.I.B. files which could contain evidence of propensity towards misconduct on the part of the defendants. In so doing, the court parried four claims presented by the petitioners as a bar to enforcement of the discovery order.
The first claim was that the files subject to the discovery order were irrelevant. This claim was resolved by requiring the trial judge to examine the reports in camera and make findings of relevance to the cause of action.
The second claim was one of privilege---described as "executive," "governmental" or "official information." The court held that the trial court must balance the discoverant's interest in disclosure against the government's interest in confidentiality. The court went on to counsel the adoption of ten separate factors to be considered by the trial judge in the balancing process.(fn14)
The third claim resolved by the court in Martinelli was that the disclosure order violated the officer's right to privacy. This was advanced by the petitioners without any citations to authority. Even so, the court recognized a vague, qualified "right to confidentiality" in the files and ordered a tripartite balancing test. The inquiry had to determine (1) whether the party seeking protection has a legitimate expectation of confidentiality; if so, (2) whether disclosure is required by a compelling state interest; and (3) whether disclosure can occur in a manner which is least intrusive to that right.
The fourth and final claim involved the Colorado Open Records Act.(fn15) In rejecting the argument that S.I.B. records were exempt from civil discovery under the Act, the court...
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