Obtaining Information from Law Enforcement Personnel Files: a Defense Attorney's Perspective
| Publication year | 2020 |
| Author | By Timothy E. Warriner |
By Timothy E. Warriner
Timothy E. Warriner, B.S., 1989, University of California, Los Angeles (UCLA); J.D., 1993, Santa Clara University School of Law. Mr. Warriner handles trial and appellate matters in state and federal court. He authors two chapters of CEB's criminal law "bible"-—California Criminal Law: Procedure and Practice. He is a member of the Anthony M. Kennedy American Inn of Court, where he serves as an Attorney Master. Mr. Warriner is a former chair of the Criminal Law Section of the State Bar of California, and now sits as an Advisor to the California Lawyers Association Criminal Law Section. He is certified by the California Board of Legal Specialization of the State Bar of California as a criminal law specialist. His email address is: tew@warrinerlaw.com
I have a vivid recollection of the client. He limped into the jail interview room, wincing as he sat on the bench. His face was bruised and swollen. His version of the events stood in stark contrast to the officer's account in the police report. Similar experiences are shared by most, if not all, seasoned defense attorneys. Defense attorneys have an important duty to investigate in circumstances suggesting law enforcement misconduct. This article addresses the legal means of getting records and information from law enforcement officers' personnel files.
The challenge for defense counsel investigating officer misconduct is that the records of law enforcement officers are cloaked in confidentiality. Penal Code section 832.7, subdivision (a), provides that the "personnel records of peace officers and custodial officers . . . or information obtained from these records, are confidential and shall not be disclosed in any criminal . . . proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code." These provisions codify the Pitchess decision, which previously governed the release of law enforcement information.
The term "personnel records" includes complaints or investigations of complaints pertaining to the manner in which an officer performs his or her duties. (Pen. Code, § 832.8, subd. (a)(5).) Law enforcement agencies are required to record and investigate citizen complaints. (Pen. Code, § 832.5.) Such complaints must be retained by an agency for at least five years. Complaints deemed frivolous or unfounded are excluded from the personnel file. (Ibid.)
Information in an officer's personnel file may be deemed Brady information. (Brady v. Maryland (1963) 373 U.S. 83.) Citizen complaints and other material may show bias, patterns of behavior, character and propensity for violence, and dishonesty. So called Brady material is matter that is exculpatory — i.e., tends to show a defendant is not guilty. It includes evidence — such as a finding of dishonesty — that may be used to impeach an officer's testimony. (Giglio v. United States (19792) 405 U.S. 150, 154-155.)
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The prosecution has a duty to disclose Brady material and to investigate whether a law enforcement agency has Brady material. (Kyles v. Whitley (1995) 514 U.S. 419, 437.) However, the prosecution's Brady obligation and the officer's right to confidentiality conflict when there is Brady material in an officer's personnel file. Though a prosecutor has no general right to access police personnel files, the prosecutor may receive a "Brady ...
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