On August 11, 2014, the Court of Appeal in People v. Superior Court (Johnson) considered the interplay between the United States Supreme Court’s 1963 decision in Brady v. Maryland, which requires the prosecution’s disclosure of evidence that is favorable and material to the defense (including evidence of dishonesty, bias or moral turpitude on the part of a peace officer) and the statutory discovery procedures articulated by the California Supreme Court in Pitchess v. Superior Court, which provide that peace officer personnel records are “confidential and shall not be disclosed in any criminal or civil proceeding except by discovery” pursuant to Evidence Code section 1043.  In doing so, the Court of Appeal held that a prosecutor’s preliminary inspection of a peace officer’s personnel files for purposes of identifying Brady material does not violate Penal Code section 832.7(a), and does not require the filing of a Pitchess motion.  The Court further found that if a prosecutor identifies Brady  material, he or she must then file a Pitchess motion before disclosing said evidence to the defendant.

On September 18, 2014, the City and County of San Francisco and the San Francisco Police Department (“SFPD”) petitioned the California Supreme Court for review.  The California Supreme Court granted review on October 29, 2014.

The primary issue before the Supreme Court is whether a prosecutor must file a Pitchess motion before accessing peace officer personnel files if the purpose of such access is to search for Brady material that may be subject to disclosure to a criminal defendant.

Criminal defendant, Daryl Lee Johnson, was charged in November 2012 with hitting a female minor in the head in a San Francisco home. After a disclosure by the SFPD that two officers involved with the Johnson arrest had Brady material in their personnel files, the prosecution brought a Pitchess motion.  Criminal defendant Johnson argued to the trial court that Penal Code section 832.7 is unconstitutional to the extent that it bars the prosecution from access to peace officer personnel records to comply with Brady.  The trial court agreed with Johnson and directed SFPD to give the prosecutor access to the peace officers’ personnel records to allow the prosecution to comply with Brady.  The City and County of San Francisco and the District Attorney filed a writ petition challenging the trial court’s decision.

On appeal, the Court of Appeal analyzed Brady and found that it requires the prosecution team to divulge impeachment or exculpatory evidence to the criminal defense, even where the evidence is known only to the police and not to the prosecutors, thereby creating an obligation for the prosecutor to learn of any evidence.

The Court of Appeal drew a distinction between the identification and disclosure stage of the Brady process.  The identification phase requires access to the peace officer personnel files to determine whether Brady material exists.  The Court of Appeal concluded that a prosecutor is not precluded from reviewing the files to identify whether Brady material exists, and does not need to file a Pitchess motion because the disclosure at this stage is not publicly disseminated.  Because the prosecutor and the police are a single prosecution team, prosecutors can examine the records without violating confidentiality, the Court of Appeal said in a 3-0 ruling.  The Court of Appeal further noted when and if the prosecution finds Brady material, then the prosecution’s duty to disclose is triggered and thus, the prosecution must then file a Pitchess motion to determine what material, if any, will be disclosed to a criminal defendant.  The effect of the Court of Appeal’s ruling is that it takes the identification phase out of the hands of the police/sheriff’s departments, and puts it in the hands of the prosecution.

In its Petition for Review to the California Supreme Court, the City and County of San Francisco and SFPD argue that the Court of Appeal’s ruling contradicts published decisions that require a prosecutor to first file a Pitchess motion to get access to otherwise confidential peace officer personnel files.  The Supreme Court granted review on October 29th.  We will continue to update you about this important case.