LAW WEEK-LOS ANGELES LAW LIBRARY
PITCHESS MOTION CLASS
DAVID A. KATZ & TAMARA BOGOSIAN
WHAT ARE PITCHESS MOTIONS?
Penal Code §832.7, “Peace officer or custodial officer personnel records and records
maintained by any state or local agency pursuant to Section 832.5, or information
obtained from these records, are confidential and shall not be disclosed in any criminal or
civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence
Code. This section shall not apply to investigations or proceedings concerning the
conduct of peace officers or custodial officers, or an agency or department that employs
those officers, conducted by a grand jury, a district attorney’s office, or the Attorney
General’s office.”
Must file a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) prior to
obtaining police personnel records.
Evidence of prior complaints against officers are relevant to establish character trait of
officers;
Balance the criminal defendant’s need and good cause for citizen complaint investigation
against the need to maintain secrecy (“official information”; Evidence Code § 1040);
Goals (1) Protect police personnel records from random discovery; (2) Provide for
retention of relevant records; (3) Impose limitations on discovery and dissemination.
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WHAT ARE THE ESSENTIAL ELEMENTS OF A PITCHESS MOTION
Evidence Code § 1043:Discovery of peace officer personnel records is a 2 step process:
STEP ONE: Noticed written motion served on the agency having custody of records, and in a
criminal case, on the District Attorney, that includes:
(a) description of records/information sought;
(b) statement upon reasonable belief that the government has the records or
information sought;
(c) affidavits, including by counsel making the Pitchess motion, showing good cause for
the discovery and its materiality to subject
matter of pending litigation;
(d) provide police report of incident with criminal defendant if criminal defendant is
alleging excessive force against officer(s); and;
(e) Notice of hearing pursuant to CCP § 1005-16 court days (+ 5 days if you are mailing).
So if it is personal service, it is 16 court days.
STEP TWO: In-Camera Hearing: Person authorized to possess records (Custodian of Records)
and/or City Attorney and court reporter. Officer whose records are sought may attend but is not
required to1. Defense attorney and prosecutor may NOT attend.
1
The agency is required to provide the officer or former officer notice of the Pitchess motion.
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TYPES OF CASES WHEN PITCHESS MOTIONS FILED
Criminal Cases
Civil Cases involving allegations of excessive force or violation of civil rights
(NOTE: Pitchess does not apply in federal court, i.e., state law privileges do not
apply. The Federal Court conducts a balancing test [relevancy vs. privacy
rights]).
 FEDERAL CRIMINAL CASES: 9th Circuit requires prosecutors
to find out from police department if evidence material to defense
is in officers’ personnel files;
 prosecutor is required to examine files;
 where prosecutor is uncertain about materiality of information,
they may submit it to trial court for in camera inspection;
 Federal Rules of Criminal Procedure restrict use of subpoenas by
defense for third party records.
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PITCHESS vs. BRADY ? WHAT’S THE DIFFERENCE?
What is Brady Material? The Brady Rule, named for Brady v. Maryland, (1963) 373 U.S.
8, requires prosecutors to disclose materially exculpatory evidence in the government's
possession to the defense. "Brady material" or evidence the prosecutor is required to
disclose under this rule includes any evidence favorable to the accused-- evidence that
goes towards negating a defendant's guilt, that would reduce a defendant's potential
sentence, or evidence going to the credibility of a prosecution witness.
People v. Johnson: In People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, the
Supreme Court reversed the Court of Appeal decision which held that when a peace
officer was a material witness in a criminal case, the prosecutor, in order to satisfy the
obligation under Brady v. Maryland could conduct an initial inspection of that officer’s
personnel file without first filing a Pitchess motion, because the initial inspection did not
constitute a disclosure prohibited by Penal Code § 832.7(a). The Supreme Court reversed
that decision and returned California law to where it was before, namely that a prosecutor
has no greater access to a peace officer’s personnel file than does a criminal defense
attorney and, if a prosecutor wants access to such a file, a Pitchess motion is required.
What Does This All Mean: If a prosecutor wishes to conduct a Brady inquiry, they may
do so as long as they first file and serve a Pitchess motion, together with a declaration by
the Prosecutor which supports the claim that the officer’s credibility might be relevant in
the pending criminal case. If sufficient, the trial court can then conduct an in camera
review of the records to determine if Brady material is present.
So Who Has The Duty? There is a duty on law enforcement as a result of this case and
other cases from the past, to inform prosecuting agencies when potential Brady
information exists in the officer’s personnel file. That can be done either by a
department’s own internal policy or a joint agreement between the police department and
the local prosecuting agency.
The Supreme Court held in this case that where an agency informs the prosecutor of the
possibility of Brady information and provides a summary of the information it has; and,
where the prosecution turns that synopsis of information over to the defense, the
prosecutor has satisfied its Brady obligation.
Effect of this Ruling: Many agencies in California have adopted a procedure to notify the
prosecution of potential Brady information. This not only provides a measure of
insurance against future Brady violation claims, it could also limit civil liability.
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THE CITY’S POSITION AS TO WHAT CAN/CAN’T THE COURT DISCLOSE?
Court should ONLY release names and addresses of complaining witnesses;
Court must exclude remote facts of little/no practical benefit;
Court must exclude conclusions of investigation in criminal case;
Court should exclude complaints concerning conduct occurring more than 5 years before
incident
DEFENSE’S POSITION AS TO WHAT CAN/CAN’T THE COURT DISCLOSE?
Under Johnson, if the Court finds Brady material while reviewing the file, that must also
be disclosed.
If the names and addresses of complaining witnesses are not sufficient (i.e., if the
complaining witness has died or can’t recall what happened), the defense may be entitled
to additional documents in the file such as the complaint itself.
WHEN ARE PROTECTIVE ORDERS NECESSARY?
Evidence Code § 1045(e) provides that the Court shall order that any records or
information disclosed may not be used for “any purpose other than court proceedings
pursuant to applicable law.”
Protective order prohibits the dissemination of the information to anyone but the defense
counsel (this includes the prosecution), those assisting the defendant and the defendant. It
allows dissemination to the prosecutor and his/her assistants also. It requires destruction
of any copies and return of originals upon conclusion of the case (after appeal and time
for habeas corpus have run).
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WHAT IF A PARTY THINKS THE COURT GOT IT WRONG?
Writ of Mandate is the appropriate remedy for review of a trial court’s discretionary
decision on discovery relating to peace-officer personnel records. A Court’s
determination regarding materiality and good cause are reviewed de novo for abuse of
discretion as it involves an interpretation of a legal principle or statute. A trial court will
be held to have abused its discretion where it ordered disclosure if the moving party did
not satisfy the statutory requirements for discovery of officer personnel records.
A stay of the Court’s order is MANDATORY as is a request for a copy of the transcript
of the hearing. If stay denied, must file an application for a stay with the appellate court
at the same time the writ is filed.
Once disclosure has been made, privacy of officer is breached at least as to the criminal
defendant’s attorney to whom disclosure was ordered. The City Attorney’s office will
argue irreparable harm because it will claim that no post judgment review can restore
that.
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Tamara Bogosian
Of Counsel, Best Best & Krieger LLP
(949) 263-2602
[email protected]
Tamara Bogosian represents public agencies in litigation involving the Public Records Act, civil rights,
police liability, Pitchess motions, complex code enforcement including medical marijuana litigation and
defending law enforcement officers in constitutional and civil rights cases. She has been practicing public
law in city attorneys’ and district attorneys’ offices in California for 14 years. She is an of counsel attorney
in the Municipal Law practice group of Best Best & Krieger LLP’s Irvine office. Tamara began her career
as a Deputy District Attorney with the Ventura County District Attorney’s Office in 1999. While with the
District Attorney’s Office, she conducted numerous misdemeanor and felony arraignments, preliminary
hearings, probation hearings, and jury trials. During her tenure as a prosecutor, Tamara was assigned to the
domestic violence and drug courts, and worked as a grant attorney in the sexual assault unit. In 2005,
Tamara joined the Fresno County District Attorney’s Office, where she was responsible for prosecuting
youthful offenders suspected of committing driving under the influence offenses (including vehicular
manslaughter cases) through a grant provided by the California Department of Transportation’s Office of
Traffic Safety. In 2006, Tamara joined the Fresno City Attorney’s Office where she was assigned to the
civil litigation unit. At the City Attorney’s Office, she represented the city and its employees in both federal
and state courts involving such issues as the Public Records Act, civil rights, police liability, Pitchess
motions, code enforcement, dangerous condition of public property, and other law enforcement related
constitutional claims. Tamara served as a member of the civil liability/critical incident response team,
where she responded to officer involved shootings and other critical incidents involving peace officers. In
2013, she was promoted to Supervising Deputy City Attorney in the litigation unit and worked directly with
the mayor, city council, city manager and their staff on various high level legal matters.
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David A. Katz
Katz & Associates
(310) 279-5111
(818) 281-8815
[email protected]
David Katz is one of America’s winningest criminal trial lawyers and a preeminent criminal litigator. He
has not lost any of his last nine trials. These nine include: an acquittal in a criminal telemarketing case, an
acquittal in a criminal pharmaceuticals trial, and a $1.8 million verdict which was collected after a federal
civil trial for police brutality. He also got a hung jury, with most jurors voting to acquit, in a federal
customs fraud case, a hung jury on federal tax fraud charges, and most recently a hung jury, with most
jurors voting to acquit, in a sexual battery case. He also obtained an acquittal in a state fraud case, and an
eve-of-trial dismissal of an immigration fraud indictment. In the ninth case (the sole conviction), the Ninth
Circuit granted bail pending appeal and then reversed the conviction.
In addition, over the past 25 years, Mr. Katz has obtained numerous dismissals as well as misdemeanor
dispositions in felony cases.
Mr. Katz is fluent in Spanish. He graduated from UC Berkeley and Boalt Hall (Berkeley Law), where he
was Note Editor of the California Law Review. He clerked for U.S. District Judge John Penn in
Washington, D.C., was an Assistant U.S. Attorney in Los Angeles for six years, won all 23 trials, and
headed the Southern California Fraud Task Force in 1988 and 1989.
He has taught criminal procedure and professional responsibility, testified before Congress on investment
fraud, has been selected for SuperLawyers (White-Collar), and has been AV-rated by Martindale-Hubbell
since 1990.
Mr. Katz is currently handling a case in Southern California, rife with Pitchess issues. In that case, Mr.
Katz’s first Pitchess motion was opposed by the City, belittled by the People, denied by the trial court, and
given short shrift by the Court of Appeal. But then the court granted a renewed defense motion and
subsequently also granted the People’s Pitchess motion, resulting in many pages from the officer’s
personnel file being at last disclosed to the defense.
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