Bad Police Conduct: Win Your Criminal Case

April 29, 2021

Some cops lie in the police report or during an arrest. Sometimes, it is not a lie but other improper conduct, like a search without permission or reasonable cause, use or force or undue pressure, or evidence of bias or racism. If any of this happened to you when you were arrested, you can bring up the police officer’s bad behavior in court to get a good deal, a dismissal, or an acquittal. For example, if you have evidence of police lying, you can bring it up to the prosecutor to get a dismissal. Or if the evidence against you is strong, you can get a better deal from a judge or a prosecutor instead of going to trial. Or if you go to trial, the jury can acquit you based on the police officer’s bad behavior. Often, it is not easy to get that evidence of a lie and you will need a criminal defense lawyer to help you fight your criminal case. Here we explain how. Los Angeles Criminal Defense and DUI Attorney Alex Andryuschenko will help you do that.

BRADY EVIDENCE

Brady’s evidence is the evidence of bad behavior by the police officer. The District Attorney (or another prosecutor) has to notify a defendant of “Brady” evidence that is helpful to you because the law requires that all “evidence favorable to an accused that is material to the guilt of punishment” is disclosed to him. (U.S. v. Brady 1985 473 U.S 667). The way it works is, first, the Police tell the DA that a particular officer has “Brady” evidence in his file. Next, the DA notifies the defense attorney, that there is Brady evidence for the police officer involved in his criminal case. The problem is that the Police do not say and the DA does not know (or wants to know, or knows but don’t tell) what is that Brady evidence. Thus, the “Brady” information, by itself, becomes not helpful, because you do not know how to use it. Is it a traffic ticket citation that the officer issued or is it excessive force? How can you use Brady without knowing what is it? So, as the next step, you must carefully read the police report and compare it to what you remember about the criminal case. If you see where the police officer is lying or does other bad things, then you can file a “Pitchess” motion. If you can not see clear evidence in the police file, then look up to the Johnson case for guidance:

JOHNSON MOTION: PEOPLE V. SUPERIOR COURT (JOHNSON) (2015) 61 Cal.4th 696

A Pitchess motion is a motion to get the names of persons who complained about the police officer in the past. The District Attorney does not have the detail of that information, instead, this information is in the police officer’s personnel file in the police department. To get the names of the people who complained about that police officer, you can file a Pitchess motion, with a declaration that says how the information that you are trying to get will help you win your case. The court will set a hearing and at the hearing, the police officer can be present along with a lawyer for the department who will try to argue that the information should not be disclosed.

Sometimes, the District Attorney wants to know what is in the police officer’s file and files Pitchess himself against the police. But even then, a declaration must be attached to say how the information will be helpful.

PITCHESS MOTION REQUIREMENTS

In Johnson (61 Cal.4th 696), The Supreme Court granted Pitches motion. In that case, the declaration was deemed sufficient and it stated:

The officer’s personnel file may contain, a sustained allegation of specific Brady misconduct, reflective of dishonesty bias or evidence of moral turpitude.” The declaration also stated, “the records are material to the pending litigation in that they pertain to the credibility of a necessary and material prosecution witness, and could either impeach said witness or lead to evidence exonerating the defendant“.

The Supreme Court held that this declaration satisfied the threshold requirement that a defendant must make in order to trigger the judicial review of the records under Pitchess procedure.

What is not enough to win Pitchess is to say “the personal file has discoverable information and that the Brady information pertains to the credibility of a necessary and material witness“. As you see, the difference is the missing language of “sustained allegation of specific Brady misconduct, reflective of dishonesty, bias or evidence of moral turpitude”. The first one works, the second does not. It is also best if the support declaration describes the “scenario for officer misconduct”, but even without it, use the language from Johnson, to wit, “…the officer’s personnel file may contain, a sustained allegation of specific Brady misconduct, reflective of dishonesty bias or evidence of moral turpitude“. Also, best to say how the evidence from the personnel file will help. For example, claim in the declaration: (1) use of excessive force or that officer (2) conducted a search without a reasonable cause, or that he (3) mishandled evidence, or (4) tried to get a confession, or (5) conducted unfair field identification. The Pitchess declaration must contain a logical link to the 911 call, the arrest, the charges, defense, or the impeachment of a witness (In Re M.C. 58 Cl. App. 5th 1138).

As always, for case specific questions, please call our office directly at (818) 921-7744. Los Angeles Criminal Defense and DUI Attorney Alex Andryuschenko will be able to answer or guide you in the defense of your case.

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