Overview: A California appellate court recently ruled that, during the in camera review of peace officer personnel files following a Pitchess motion, the reviewing court must examine the actual records brought by the custodian of records and not rely simply on the custodian’s opinion or representation of whether any discoverable information exists. The court also ruled that the defendant had shown good cause for discovery of past complaints of dishonesty and false reporting, but not excessive force under the facts of the case.

Training Points: This is a significant case in the development of Pitchess authority because it impacts what custodians of records can expect during the in camera review following a good cause determination on a Pitchess motion. Now the trial court must actually review the documents brought by the custodian. Prior to this case, some courts simply asked the custodian whether anything within the scope of review was present in the file of the named officer and then relied upon that representation without conducting a detailed review of all documents brought. That process is no longer acceptable and may have an impact on the criminal proceedings if the defendant appeals. With this ruling, the decision of what to bring to the court becomes more important. Custodians have discretion as to the types of documents that they may bring but they must be able to explain to the court why any documents were not brought for inspection. On the one hand, agencies want to be forthcoming in providing documents for review by the court in camera that may be responsive to the areas of inquiry in a Pitchess motion. On the other hand, Pitchess motions are usually “kitchen sink” motions that ask for every possible type of misconduct, even though most have no relevancy to the specific case. Agencies should consult with their counsel to develop best practices for identifying the portions of a personnel file that may contain Pitchess information, and to develop proper explanations for why the remaining portions of a personnel file were not brought for inspection, upon inquiry by the reviewing court.

Summary Analysis: In Sisson v. Superior Court, Sisson was charged with a provocative act of murder and assaulting police after nine officers cornered his car and shot his front seat passenger. Sisson filed Pitchess motions seeking discovery of the officers’ personnel files for complaints of excessive force, dishonesty and fabrication of charges. The trial court conducted an in camera review of three records and found discoverable information in two. The appellate court reversed in part, directing the trial court to review the records of eight officers and eventually found that past acts of dishonesty were relevant, but prior instances of excessive force were immaterial. Finally, the trial court was required to examine the actual documents presented, not rely simply upon the custodian’s representations.

Follow-Up Contact: For questions regarding this case or its implications for your agency and public safety department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.