INTERVIEW NOTES MAY BE DESTROYED

ATTORNEY GENERAL OPINION: 98-204

The honorable Michael D. Bradbury, District Attorney, County of Ventura, requested an opinion on the following question:

Prior to the filing of a criminal complaint, may law enforcement agencies destroy interview notes containing witness statements that have been transferred to a formal report?

CONCLUSION
Prior to the filing of a criminal complaint, law enforcement agencies may destroy interview notes containing witness statements that have been transferred to a formal report.

/ What does this mean to your agency?

This opinion addressed the concerns recent changes in California's criminal discovery statutes, Penal Code §§ 1054-1054.7, and case law holding that interview notes of witness statements are subject to discovery. The key here is that language in Penal Code § 1054.1 does not change the longstanding duty of law enforcement agencies regarding the preservation of notes of witness statements prior to the filing of a criminal complaint. If disclosable evidence is in existence, law enforcement agencies have a general duty to undertake reasonable efforts in good faith to locate it for purposes of discovery. Nothing in case law imposes any duty with regard to evidence not in existence at the time of the filing of the criminal complaint. Therefore it is incumbent upon the agency to insure that the contents of any notes to be destroyed must be included in the officer's report.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Mayer & Coble at (562) 590-8280.