How Can I Get Dirty Cop Records More Than 5 Years Old?
The Reader’s Digest Version: Under a federal due process right under Brady v. Maryland, one may be able to have a judge order production of police officer personnel files more than five years old as is otherwise limited in Pitchess and Penal Code § 1045(b)(1).
However, in the case of City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 4, the California Supreme Court reversed the Second Appellate District Court of Appeal after it upheld the trial court’s order directing the production of the personnel records of two officers involved in the year 2000 arrest of Defendant Jeremy Brandon. Brandon was charged with sexually molesting a seven-year old boy (Penal Code § 288(a)), as well as failing to register as a sex offender (Penal Code § 290(g)(2)) and sought information in the personnel records of the two Los Angeles Police Department arresting officers.
Brandon filed a Pitchess motion requesting information in the personnel files of the two arresting officers, specifically the names, addresses, and telephone numbers of persons who had filed complaints against the officers "relating to acts of falsification of police reports, lying, perjury, dishonesty, untruthfulness or other acts of moral turpitude that reflect on the officers' honesty or truthfulness."
The 1996 report referred to a 1990 incident involving that officer’s failure to report the improper use of mace by a partner officer. The judge found the information about both the 1996 and the 1990 incidents "relevant" to Brandon’s case, and ordered the LAPD's custodian of records to provide Brandon’s attorney the names, addresses, and telephone numbers of the complainants and witnesses for the two incidents.
The City then took the appeal up to the California Supreme Court, which reversed in the City’s favor. However, the ruling suggested that production of such records going back ten years, while expressly barred by 1045(b)(1), could be permitted under a federal due process right to a fair trial under Brady, supra, which requires the prosecution to disclose evidence that is “favorable and material” to the defense on the issues of guilt or punishment without limitation to any five-year window.
The Brandon court held that 1045(b)(1)’s five-year limitation is not an absolute bar to production of records more than five years old. The California Supreme Court explained, “the reason is this: Our state statutory scheme allowing defense discovery of certain officer personnel records creates both a broader and lower threshold for disclosure than does the high court's decision in Brady, supra, at 373 U.S. 83.
Unlike Brady, California's Pitchess discovery scheme entitles a defendant to information that will "facilitate the ascertainment of the facts" at trial (Pitchess, supra, 11 Cal.3d at p. 536), that is, "all information pertinent to the defense" (City of San Jose v. Superior Court (1993) 5 Cal. 4th 47, 53.).
The California Supreme Court went on to note that it “undisputed” that materials that "may be used to impeach a witness" fall within the class of information subject to Brady because impeachment information affects the fairness of trial. However, in the Brandon case, the materials more than five years old did not serve to do this.