A Pitchess motion is a pre-trial discovery tool that is regularly used by San Diego criminal defense attorneys when a defendant believes he was a victim of police misconduct. Examples of police misconduct include: use of excessive force, dishonesty in police reports, coerced confessions, etc.
Pitchess motions are very common in resisting arrest cases. If, for example, a defendant states that he acted in self-defense in response to overly aggressive behavior by the arresting officer, a good starting point for the defense attorney would be to file a Pitchess motion to determine if there’s an identifiable pattern of aggressive behavior in the officer’s personnel file.
However, this motion isn’t limited to resisting arrest cases and can be extremely useful across a broad spectrum of criminal cases and factual scenarios. This fact explains why it’s one of the most common pre-trial motions filed in California criminal courts.
Procedural Process & Requirements
A Pitchess motion is made in trial court pursuant to California Evidence Code § 1043-1046. When it’s deemed appropriate by a criminal defense attorney, he’ll draft and file a Pitchess motion, which, if granted, would allow the defense access to certain information contained in the officer’s disciplinary record.
The motion must include, among other things: (1) a description of the type of records and/or information the defense is seeking and (2) a showing of “good cause” to have the records released to the defense.
The requirement of “good cause” adds an extra layer of protection to a police officer’s privacy expectations by preventing San Diego criminal defense attorneys from conducting “fishing expeditions;” that is, they may not know exactly what they’re looking but are hoping to find anything negative in the officer’s personnel file that could be used against the officer.
In order to show “good cause,” the defendant must submit a declaration as part of the written motion that presents a specific factual scenario that supports allegations of police misconduct in his case, as well as the reason(s) why the alleged misconduct would be material to the defense’s case.
The Court’s Role as Gatekeeper
The court doesn’t want to allow “fishing expeditions” by criminal defense attorneys, so it’ll carefully consider the particulars of the motion and make a ruling on whether to grant a review of the officer’s personnel file.
If the court finds that the motion shows “good cause,” it’ll review the officer’s personnel records in camera (i.e., in private) and determine which records, if any, are relevant to the defense’s case. So, for instance, if the defense alleges that the officer falsified her report, the court would deem relevant to the defense only those instances of falsified reports in the officer’s personnel record—not instances of other police misconduct, such as use of excessive force.
It’s important to note that defense attorneys are not permitted to be present when the trial court conducts the in camera review of the personnel records.
What Records Can Be Obtained?
If the Pitchess motion is granted and the court ultimately finds relevant information regarding prior instances of police misconduct after reviewing the file, the defense is entitled to the date, place and nature of the complaint, the names and contact information of the complainant and all witnesses to the complaint, and the results of the investigation including any discipline that was imposed.
At this initial phase, the defense isn’t entitled to disclosure of the actual complaints or statements made by the complainants or witnesses without further showing that the information thus far provided has proven to be insufficient to enable adequate preparation for trial. Thus, it’s imperative that a San Diego criminal defense attorney fully investigate the fruits of the initial disclosure, and return to the trial court if the previous disclosures are insufficient.
Once the defendant satisfies the trial court of the fact that the previous disclosures are insufficient, he’s entitled to discovery of the actual statements made by the complainants and witnesses and the investigative records concerning those complaints.
Using the Officer’s Previous Misconduct to the Defense’s Advantage
Depending on how damaging the disclosed misconduct is to the prosecution’s case, a San Diego criminal defense attorney may be able to negotiate a dismissal of the case or a significant reduction in the charge(s). Additionally, an officer’s past misconduct can be used at trial as impeachment material that may effectively undermine the prosecution’s case and/or bolster the defense’s theory of the case.