Brady And The Privacy Of Personnel Records

A bit of backdrop is necessary to understand an important Brady decision recently issued by the California Court of Appeals.

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that constitutional due process creates an affirmative obligation on the part of the prosecution, whether or not requested by the defense, to disclose all evidence within its possession that is exculpatory to a criminal defendant. Exculpatory evidence under Brady includes impeachment evidence. The prosecution’s disclosure obligation under Brady extends not only to evidence in its immediate possession, but also to evidence in the possession of other members of the prosecution team, including law enforcement.

Eleven years after Brady, the California Supreme Court held in Pitchess v. Superior Court, 11 Cal.3d 531 (1974) that under certain circumstances, and upon an adequate showing, a criminal defendant may discover information from a peace officer’s otherwise confidential personnel file that is relevant to his or her defense. The California Legislature eventually codified what became known as Pitchess motions in various sections of the California penal and evidence codes. Generally speaking, the Pitchess statutes require a criminal defendant to file a written motion that establishes good cause for the discovery sought. If such a showing is made, the trial court then reviews the law enforcement personnel records in camera with the custodian, and discloses to the defendant any relevant information from the personnel file.

The Pitchess statutes also provide that absent compliance with these procedures, peace officer personnel records, as well as information from them, are confidential and may not be disclosed in any criminal or civil proceeding. Records that cannot be disclosed absent compliance with the Pitchess procedures include the names or identities of peace officers to the extent such a disclosure also links the officers to disciplinary investigations in their personnel files.

Against that backdrop, the Los Angeles County Sheriff’s Department created a so-called “Brady” list of deputies whose personnel files contain sustained allegations of misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment. The Department proposed to disclose that list to the district attorney, as well as to other prosecutorial agencies that handle Department investigations, so that prosecutors in individual cases could file Pitchess motions to discover the underlying misconduct or advise the defense of the disclosure so the defense could file its own Pitchess motion.

The Association for Los Angeles Deputy Sheriffs (ALADS), which represents rank-and-file deputy sheriffs, opposed disclosure of the Brady list and filed a lawsuit seeking an injunction that prohibits disclosure of the list or any individual on the list to anyone outside the Department, including prosecutors, absent complete compliance with the Pitchess statutes.

The California Court of Appeals sided with ALADS, and ordered a trial court to issue an appropriate injunction. The Court had little difficulty finding that the Department’s Brady list contained Pitchess material, and that the information could only be disclosed in compliance with the Pitchess statutes. The real question, the Court noted, was how far an injunction should go in restraining the dissemination of the Brady list. In particular, the question was whether the injunction should prohibit the Department from disclosing Brady list deputies to the district attorney, or other prosecutorial agency, so long as the deputies were also potential witnesses in a pending criminal prosecution, even in the absence of a properly filed, heard, and granted Pitchess motion.

The Court concluded that Pitchess procedures would have to be complied with, even with pending criminal cases in which the deputy might be a witness: “Based upon Department personnel records, the proposed disclosure identifies the deputy by name and serial number and connects him or her to administratively sustained allegations of misconduct involving moral turpitude or other bad acts. The California Supreme Court, as a general matter, has at least twice expressly observed that the statutory Pitchess procedures do not violate either Brady or constitutional due process, but rather, supplement both.

“We agree with the trial court that disclosure of a deputy from the Brady list will cause stigma and irreparable harm to the individual deputy’s reputation, while non-disclosure will cause no comparable harm to the Department or the other real parties. Accordingly, the language in the injunction that allows the Department, or any real party, to disclose the identity of any individual deputy on the Brady list to any agency or individual outside the Department, absent a properly filed and granted Pitchess motion and corresponding court order, even if the affected deputy is a potential witness in a filed criminal prosecution, must be stricken.

“We note one other issue with the trial court’s injunction: as worded, the injunction allows disclosure outside of the Pitchess procedures whenever a Brady list deputy is a potential witness in a pending criminal prosecution. Not all potential Department witnesses in a criminal case, however, will be significant enough that impeachment information in their personnel files will be material, which Brady requires as a prerequisite to disclosure. For example, while the credibility of a homicide detective who obtains an unrecorded confession from a murder defendant would likely be a material issue at trial, that of a patrol deputy who simply arrests the defendant but otherwise generates no incriminating evidence likely would not be.

“In the latter situation, impeachment information in the deputy’s personnel file likely would not be material under Brady and thus there would be no disclosure obligation, even if we assume the validity of the trial court’s constitutional rationale, that justifies ignoring the requirements of the Pitchess statutes. The injunction, though, permits violation of the Pitchess statutes in both situations described above, since it treats potential witnesses identically regardless of their materiality. The injunction is therefore overbroad even if we assume the validity of its own rationale.”

Association for Los Angeles Deputy Sheriffs v. Superior Court, 2017 WL 2962901 (Cal. App. 2017).