Police Officers on Trial: "protect and Serve" or "protect and Survive"

• Jurisdiction: California,United States
• Author: By Thomas M. Madruga
• Citation: Vol. 31 No. 1
• Publication year: 2018

Police Officers On Trial: "Protect and Serve" or "Protect and Survive"

By Thomas M. Madruga

Police officers are under heightened scrutiny by the public these days, viewed often as part of the problem rather than the solution. In cases against them, no matter the deed, officers are arguably forced to justify their lawful conduct at the civil courthouse. Transparency is a good thing, but it must be balanced against manifest public disclosure and an employee's right to privacy, along with institutional officer-training benefits that inure to society in general.The Internal Affairs (IA) process has traditionally been used internally by a department to evaluate and determine the proper use of force by officers and their compliance with department procedures, and to improve officer performance. But this process is now the subject of civil discovery. Current law is to allow the review and disclosure of the factual portions of IA investigations in civil actions and to order disclosure of portions of officer interviews that can be used for impeachment at trial. This trend may ultimately alter the internal review process for the evaluation and training of police officers, which would adversely impact an important component of officer training.

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Access to Police Personnel and Employment Files

In California State Court, the Pitchess pprocess is the exclusive method to obtain information contained in a police officer's personnel file or to determine whether prior alleged misconduct should be disclosed. In Pitchess v. Superior Court (1974) 11 Cal.3d. 531, the Supreme Court ruled that a criminal defendant who asserted self-defense to a charge of battery on a peace officer could discover information in the officer's personnel file relevant to that defense. In 1978, the Legislature codified these procedures at Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. This Pitchess process is closely monitored by the court to protect the officer's privacy, and is typically used by criminal defendants seeking to obtain exculpatory information and fodder with which to cross-examine or impeach an arresting officer. (See People v. Mooc (2001) 26 Cal.4th 1216; Warrick v. Superior Court (2005) 35 Cal. 4th 1011; People v. Gaines (2009) 46 Cal. 4th 172.)

The increase in civil rights lawsuits against peace officers has increased the seeking to discover officer personnel records. Under the Pitchess process, a criminal defendant can compel discovery of certain relevant information in officer personnel files by making plausible "general allegations" that establish some "cause" for discovery of that information, and by showing how it would support a defense to the specific charge against the criminal defendant. Because police officers are typically the state's key witnesses in criminal prosecutions, the courts reason that privacy must give way to allowing the limited disclosure of information in the officer's personnel file...