Bad Police Conduct: Win Your Los Angeles Criminal Case

April 29, 2021

If you were unjustly arrested for a crime in Los Angeles, you can be entitled to examine personnel records of a police officer who arrested you based on Evidence Code 1043. Defendants have to establish good cause to do that. Good cause is shown when the personnel records are “material” and based on “reasonable belief”. This is done through a motion, named “Pitchess”, after a case with the name Pitchess v. Superior Court. In the Pitchess motion, a defense attorney or a defendant needs to file a declaration and relevant parts of police reports. The declaration must spell out how the personnel file of the police officer can be relevant and ask for previous complaints of other citizens against the police officer. For example:

“In the attached police report the police officer indicates that defendant did not stop at the stop sign. Based on information and belief, the defendant did stop at the stop sign. The testimony of the police officer will turn on his credibility. The defense believes that personal file will contain previous evidence of officer X attempts to fabricate police report.”

PITCHESS MOTION

The Pitchess motion must be filed on the Police Agency that employs the police officer who arrested you. The Pitchess motion must be filed at least 10 court days prior to the hearing, which usually means 3 weeks or about. The prosecutor, such as Los Angeles District Attorney, is not entitled to the Pitchess content but is entitled to the notice of the motion. Thus, as long as you notify the DA, you do not have to give them a copy of the motion.

On the date of the hearing for a Pitchess motion, the judge will look at the defense’s declaration and decide if the “materiality” and “reasonable belief” requirements are met. If they are, the judge will go in chambers with the police officer, the custodian of the personnel file, and the attorney for the agency. If the personnel record contains relevant information, the judge will order the release of the complaining persons’ names to the Defense.

The reason records must be released is based on Evidence Code 1043(b), which refers to Penal Code section 832.5(b) that requires police departments to maintain records of citizens’ complaints against police:

“Complaints and any reports or findings relating to these complaints, including all complaints and any reports currently in the possession of the department or agency, shall be retained for a period of no less than 5 years for records where there was not a sustained finding of misconduct and for not less than 15 years where there was a sustained finding of misconduct.”

Unfortunately, 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 of excessive force or undue pressure to get consent, or bias, such as racism, etc. If you believe that the police officer lied in his police report or did something else improper, during your investigation for a crime in Los Angeles, you can bring up the results of the Pitchess motion to the judge or prosecutor 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. 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. In Los Angeles, felonies are prosecuted by the District Attorney who, once find out, has to notify a defendant of “Brady” evidence. Misdemeanors are prosecuted by the Los Angeles City Attorney Office, who also have to notify you if they know of something improper that is in the police officer’s background. Under Brady, the government has to disclose to you all “evidence favorable to an accused that is material to the guilt of punishment“. (U.S. v. Brady 1985 473 U.S 667). The way it works, first, the Police tell the prosecutor 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. Often, the Police do not notify that prosecutor what is the “Brady” evidence. Often, the prosecutor does not wants to know, or knows but don’t tell) what is that Brady evidence. Because of that, the “Brady” information, by itself, becomes not helpful, because you do not know how to use it. Without knowing that is the nature of “Brady” evidence, you are left to speculate if it is a traffic ticket citation where the police officer was accused of being rude or is that an arrest where the officer used excessive force? How can you use Brady without knowing what it is? The prosecutor has no duty to find out what “Brady” material does the police have. To answer these questions, you must read, or have your Los Angeles Criminal Defense attorney, read carefully the police report. As you do that, compare it to what you remember happened on the day you got arrested for a crime in Los Angeles. If you notice that the police officer lied in the police report after he arrested you, you can file a “Pitchess” motion. If you have an attorney, your criminal defense attorney in Los Angeles will do it for you. But even if nothing jumps at you as obvious bad conduct by the police officer who arrested you, you can still file Pitchess if the prosecutor or the police informed you of “Brady” evidence. This is a new development in the law and is based on the Johnson case:

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. A case of Serrano v. Superior Court (2017) 16. Cal.App. 5th 759 is also on point. Both of these cases make it easier to litigate Pitchess motions for defense then previously used “Warrick” standard that required “good cause”. Los Angeles Criminal Defense Attorney can help you do that.

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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