A Pitchess motion is a discovery motion to obtain the personnel file of law enforcement that might contain relevant information of prior use of excessive force, ethnic or racial bias, falsifying information or planting evidence.
There are specific procedures to obtain disclosure of such personnel records based on good cause. If the good cause is found, the trial court reviews the file in camera to see what records in the personnel file are relevant.
In support of a written motion, the moving party must provide police reports that give rise to circumstances surrounding the defendant’s arrest and use of either excessive force or falsifying information, for examples. Defense counsel must also accompany the motion with an affidavit based on information or belief. The affidavit may be sealed to protect the revelation of privileged information. The defense must set forth that the information in the affidavit is privileged, including based on work product. The affidavit typically describes misconduct by the police officer. It is accompanied by a supporting affidavit by defense counsel based on information or belief. The affidavit itself can be filed under seal to protect the revelation of privileged information. The sealed affidavit is not served on the police officer in question or the city attorney. Rather the defense must set forth that the information in the affidavit is privileged or based on work product. The affidavit typically describes a fact scenario that supports the misconduct of the officer. It may also consist of an alternative version of what happened than the facts asserted in the police report.
Allegations under oath that a detective fabricated evidence may rise to the level of misconduct to gain access to the personnel file where the credibility of the officer becomes a grave question. Consider the following fact pattern presented in a declaration under seal warranting the granting of a Pitchess Motion: the detective testified at the preliminary hearing that there was a photograph of the victim on defendant’s cell phone that exactly matched the date and time stamp of the defendant on the surveillance camera walking behind the victim. It was later discovered that there were no photographs extracted forensically by the prosecution of the victim or anyone else from that particular scene on the defendant’s cell phone. Further, in statements made for an affidavit of probable cause for a ‘Ramey warrant’, the lead detective stated he needed to identify the victim and the defendant taking pictures of girls beneath their skirts; that is why a warrant was necessary. It was discovered that this alleged victim had already been identified on that same date and chose to remain anonymous and not prosecute as reflected in loss prevention officer reports, which was prior to the detective’s statements of probable cause in support of a warrant. The court granted the Pitchess motion for acts of instances of falsification or dishonesty.
Results of internal police investigations including disciplinary action are discoverable. However, the conclusions of the investigating officer made during such investigations cannot be obtained. Conclusions include thought processes, factual inferences of the investigating officer as they relate to witness credibility or significance or strength of evidence. An agency may be ordered to disclose reports that typically reveal only names, address, phone numbers of any prior complainants and witnesses and dates of incidents in question.
Typically at a Pitchess hearing, the city attorney will claim that the government has a privilege not to disclose the requested information. If the court overrules such findings and the government agency still persists in failing to disclose information, dismissal becomes appropriate because the denial of the discovery order and the refusal to comply with it denies defendant of due process. The custodian of records must produce the entire personnel file, and if not, it must state on the record what documents were withheld and why. This is all done in camera, and the court decides if the motion exceeds the rights and needs of the defendant to learn the information about the police officer.
If the trial court denies the Pitchess motion without holding an in camera hearing, the proper remedy is a conditional reversal of the conviction. To warrant reversal, the defendant must show a reasonable probability that a different outcome would have taken place if the material were disclosed.