Police Misconduct That Can Be The Subject Of A Pitchess Motion

There are times when police overstep the bounds of their authority and are dishonest in some aspects of their work or use excessive force or coercion in the course of an arrest or interrogation.

In fact:

If a defense attorney has cause to believe a defendant has been the victim of police misconduct, then he/she can file a Pitchess Motion pursuant to Evidence Code 1043 and 1045 EC.

What Is A Pitchess Motion?

The focus of the motion is to request the personnel file of the subject police officer which can reveal past incidents of misconduct.

Legal Update: As of September 2018 California Senate Bill 1421 no longer requires a pitchess motion to be filed for the following information:

• Officer fires his weapon at a person.
• An officer used force in the past which resulted in great bodily injury or death.
• A prior finding that the officer committed a sexual assault.
• The officer filed a false police report or commited perjury.

When Are Pitchess Motions Still Needed?

• Records which may show racial profiling, or
• Records showing confessions were coerced by the officer.

What Types Of Misconduct Are Covered Under Pitchess Motions?

Ordinarily, the personnel files of police officers are confidential under Penal Code 832.7(a).

It is only in an investigation when these files are accessible to uncover exculpatory material that can be used to impeach or impugn the credibility of the police officer in question.

If the record does show that this officer has had complaints of misconduct or had been investigated and/or reprimanded, your attorney might be able to make a motion to dismiss the charges, suppress evidence or at least negotiate a plea to a lesser offense.

Police misconduct that can be the subject of a pitchess motion include:

• Coercion¹
• Excessive force in an arrest²
• Use of force in obtaining a confession³
• Racial profiling in stop and detain or arrests
• Planting of evidence
• Fabrication in preparation of a police or investigation report to justify a search or an arrest⁴

Example Of When A Pitchess Motion Should Be Filed

If a defendant is charged with resisting arrest and/or assault on a police officer who exhibits no signs of bruises or injury and the defendant contends he/she did not resist, or was defending himself while being beaten.

The defense attorney should consider filing a Pitchess Motion to possibly show that an officer has a propensity for violence⁵.

Procedure For Filing A Pitchess Motion

A pitchess motion is a pretrial motion and may be brought prior to a preliminary hearing but is commonly filed following the preliminary hearing.

The motion is to include:

• Identification of the court and defendant
• Name of the officer whose records are sought
• Name of the agency that has custody of the records
• Description of the records sought and the information they might contain
• Affidavit from the defense attorney with reasons supporting “good cause” for the records
• Proof of service on the agency having custody of the records

What Is “Good Cause?”

Showing “good cause” is the main or determining factor in whether a court grants the motion.

Your defense attorney has to prepare an affidavit to accompany the motion and be as specific as possible in outlining the factual scenario of the case in justifying the release of the officer’s confidential records.

The affidavit has to relate all the facts of the underlying incident and any facts that support your argument that the officer committed an act of misconduct.

The misconduct then has to relate to why the misconduct is material or linked in some fashion to the defendant’s case⁶.

There is no requirement that the attorney have direct knowledge of prior complaints of misconduct by this officer; only that he/she has been informed and believes the officer had previously engaged in misconduct.

What Happens If The Motion Is Granted?

If the motion is granted, the file is brought to the judge for an in-camera inspection of the file.

The defense is not entitled to be present at the in-camera review.

In-Camera Proceeding

The judge will see if any relevant information material to the defendant’s case is present.

If so, then only that information will be released to the defendant⁷.

Information that may not be disclosed also includes:

• Complaints or other information against the officer occurred more than 5 years before the alleged misconduct
• Personal comments or conclusions made by other officers investigating a complaint
• Facts that are too remote to the allegations of misconduct⁷

Consequences Of A Pitchess Motion

If you are successful and the judge finds relevant information, he/she will only release contact information of the persons who filed complaints of excessive force, coerced confessions or racial profiling for example⁸.

If you are unable to contact these people despite good faith efforts or their recollection is faulty, then you can request more specific information from the file including records of the actual complaints⁹.

If the agency refuses to turn over the records, charges against you must be dismissed¹⁰.

What Happens If The Pitches Motion Is Denied?

If your motion is denied and you are convicted at trial, you can appeal your conviction based on the wrongful denial of your motion.

If the appellate court agrees, the matter is sent back to the trial court judge to conduct an in-camera review.

If relevant information is uncovered, you can use the information to request a new trial by showing that disclosure of the information would likely have affected the outcome of your trial.

You can use the information obtained from the officer’s file to file a motion to set aside the information under Penal Code 995 if filed before or in conjunction with your preliminary hearing.

Otherwise, you can file a 1538.5 PC motion to suppress evidence illegally obtained by police misconduct.

1. People v. Memro (1985) 38 Cal.3d 658 , 214 Cal.Rptr. 832; 700 P.2d 446 [↩]
2. Pitchess v. Superior Court , 11 Cal.3d 531 [↩]
3. See People v. Memro (1985) Above [↩]
4. People v. Hustead (1999) 74 Cal.App.4th 410 [↩]
5. Based on People V. Hustead (1999) 74 Cal.App.4th 410 [↩]
6. Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 319 [↩]
7. Evidence Code 1045 [↩] [↩]
8. City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 , 260 Cal.Rptr. 520; 776 P.2d 222 [↩]
9. Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112 [↩]
10. Dell M. v. Superior Court – 70 Cal. App. 3d 782. [↩]