Was There a Bad Cop on Your Case? What Is a Pitchess Motion?
This is often difficult to prove, but if the police officer really is a “bad cop,” a defendant may ask the judge to order the production of the officer’s confidential personnel file. This may allow defendant to discover the officer has a history of using excessive force, acting upon ethnic or racial bias, falsifying information or planting evidence or coercing a confession (People v. Memro (1985) 38 Cal.3d 658, 679, 214 Cal.Rptr. 832).About This Article Briefly: A Pitchess motion is aimed at finding impeachment material to undermine the credibility of a police officer, based on prior misconduct within the last five years. It is best reserved for cases when a jury must adjudge the credibility of a police officer’s claims.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897 is the case wherein the California Supreme Court made such disclosure permissible. When someone mentions a “Pitchess Motion,” this is the case being described, although the case is now partially codified at Evidence Code §§ 1043 to 1046, wherein certain required procedures are set forth for requesting disclosure of personnel records of police officers. Such Pitchess disclosures are also available to defendants in juvenile proceedings (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 11 Cal.Rptr.2d 73), even though juvenile proceedings are technically civil in character.
The person signing the declaration must have a reasonable belief that the government agency at issue has the records. The motion then must be personally served on the government agency (not its lawyer) sixteen court days before the hearing and, if served by mail, five calendar days must be added. It merits mention that the prosecution need not see the whole of the motion. The prosecution only needs notice that the hearing will take place. The prosecutor is usually not a party to oppose the motion. Instead, it is the police agency.
If the judge finds that good cause exists, it must hold an in camera (off the record) proceeding to determine “if the scenario of alleged officer misconduct could or might have occurred.” Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016, 29 Cal.Rptr.3d 2.
If the judge orders the production of the requested personnel records, documents within such records may show, for example, that the officer had been disciplined for or accused of planting evidence in prior case(s). This prior history can make defendant’s claim of similar misconduct more credible. Likewise, if the police officer has a history of using excessive force against African Americans, for example, and defendant in this case is African American and was severely beaten by the officer at issue, without provocation, such evidence may narrow the issues and lead to a plea bargain that is fair.
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