The prosecutor in California does not have general access to confidential peace officer personnel records; therefore, unlike federal prosecutors, district attorneys and attorneys general have no obligation routinely to review the complete files of all police officer witnesses in a criminal proceeding. (See Kyles v. Whitley (1995) 514 U.S. 419, 437-438; People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397, 402; People v. Gutierrez, supra, 112 Cal.App.4th at p. 1472.) "The prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense." (In re Littlefield (1993) 5 Cal.4th 122, 135.)

New Legislation Would Replace Pitchess with Unlimited Disclosure

Under the proposed statute, Evidence Code section 1043.1, the prosecution in any criminal case may obtain confidential peace officer personnel records simply by making a written request to an officer's law enforcement agency. The agency must respond within 10 days. The prosecutor must disclose to the defense any "Brady material" contained in the records.

SB 779 gives a criminal defendant a separate right, "[i]n any criminal case in which the prosecutorial agency . . . has declined or failed to request disclosure," to request the law enforcement agency deliver the confidential peace officer personnel records to the court for review. The judge is to review the records and disclose any "Brady material" contained in the records.

The legislation also would give defendants the right to make a "mini-Pitchess" request by alleging the prosecution or the law enforcement agency is withholding "Brady material" from the defense in any case where the prosecution has requested the records but allegedly has failed to disclose material the defense believes is exculpatory; i.e., impeaches the officer's credibility.

Bill Requires Agencies to Maintain Discipline Records for 15 Years

SB 779 also would amend Penal Code section 832.5, which currently requires law enforcement agencies to maintain peace officer personnel records for at least five years. Most law enforcement agencies in California destroy discipline records after five years consistent with section 832.5 and Evidence Code section 1045(b)(1), which excludes from disclosure any complaints that are older than five years. The courts have endorsed this procedure. (City of Los Angeles v. Superior Court, supra, 29 Cal.4th at pp. 10-12.)

The legislation would amend section 832.5 to require departments to maintain personnel records (i.e., "Brady material") for at least five years after the officer leaves the agency, "and in any event for no less than 15 years from the date the complaint is made." This provision essentially would burden an officer with the consequences of a particular instance of misconduct for his entire career.

SB 779 makes other incidental amendments to Penal Code section 832.5 and the Evidence Code relating to management access to internal affairs files and the disposition of personnel files.

Legislation Would License 'Fishing Expeditions'

As described by the California Supreme Court, the Legislature's intent in developing the current statutory procedure for obtaining peace officer personnel records "manifestly was to protect such records against 'fishing expeditions' conducted by defense attorneys following the Pitchess decision." (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 54.) The courts have rejected many previous attempts by criminal defendants to obtain wholesale access to peace officer personnel records. Several recent decisions of the appellate courts and the Supreme Court have upheld the Pitchess process as an appropriate, constitutionally-based mechanism for regulating the disclosure of peace officer records. (See, e.g., People v. Mooc (2001) 26 Cal.4th 1216; People v. Gutierrez, supra, 112 Cal.App.4th 1463.)

SB 779 would render meaningless the "confidentiality" of peace officer personnel records by opening to the prosecution and the defense any and all disciplinary actions against an officer, whether sustained or unfounded, for a 15-year period. Prosecutors and courts will be forced to disclose peace officer personnel records that might ordinarily be protected from disclosure.

Bill Removes Current Protections for Records

Unlike the current statutory procedure, SB 779 does not contain any provision requiring that the officer whose records are being requested must be immediately notified of the request. There is also no provision excluding the conclusions of the investigating officer from disclosure.

Current Evidence Code section 1045(e) requires the court to issue a protective order restricting use of the records to court proceedings. Courts typically issue a protective order requiring the defense to return its copy of the records to the law enforcement agency. In SB 779, however, any provision for a protective order is omitted; instead, the legislation would allow the records "to be used in any criminal case[.]" This provision would appear to allow defense attorneys and their clients to use records against an officer in more than one case, as well as to distribute the records freely to other attorneys and defendants.

Legislation Would Give Prosecutors Control Over Officers' Careers

The legislation also places in the hands of prosecutors a decision the Legislature previously has left to the courts: the determination as to which records in a personnel file, if any, should be disclosed to the defense. There will be two results from this change in the law.

First, prosecuting agencies, not law enforcement employers, will have control over an officer’s career. Prosecutors already maintain so-called "Brady lists" based on the disclosure by a law enforcement agency of allegations against a particular officer; in some jurisdictions, officers are removed from the list once a disciplinary action is resolved in the officer's favor. Under the proposed legislation, prosecutors will be likely to retain an officer on a "Brady list" for 15 years and, in some situations, would advise the agency the officer cannot testify as a witness in any criminal proceedings. The officer will be rendered useless to the agency and could be terminated without further investigation.

Second, officers and their representatives will be deprived of the opportunity to retain the officer’s employment by mitigating the disciplinary action. In some PORAC LDF cases, agencies have agreed to retain officers in employment in a capacity where their credibility will not be challenged; however, that retention is conditioned on the knowledge any record of the misconduct will be destroyed after five years. Under SB 779, terminations will occur more frequently because the 15-year retention rule will make the reassignment option unavailable.

Legislation May Conflict with POBR Rights

Finally, the new legislation risks compromising officers’ due process rights under the Public Safety Officers' Procedural Bill of Rights Act (POBR). Peace officers are entitled to an administrative appeal from any adverse personnel action, even those which do not involve a loss of pay, written reprimand, or punitive transfer. (James v. City of Coronado (2003) 106 Cal.App.4th 905.) There is no provision, however, for appeal from actions brought about by the decision of a prosecuting agency.

Thus, an officer who was dismissed because a prosecutor, after reviewing the officer’s personnel records under the new statute, advised the agency the officer's cases could not be filed for 15 years, may be deprived of a property interest in his employment without recourse.

Pitchess and Brady issues will continue to be debated even without SB 779. Most jurisdictions have yet to adopt or endorse either a legislative remedy or any of the various "protocols" or proposed general orders drafted to address the issue.