PALMER'S PITCHESS UPDATE

By: Greg P. Palmer

FIVE YEAR LIMITATION ON THE DISCOVERY OF COMPLAINTS FROM POLICE OFFICERS PERSONNEL FILES IS NOT WHAT IT USED TO BE

On November 2, 2000, the Second Appellate District in Los Angeles decided the case City of Los Angeles v. Superior Court (Brandon), 2000 Daily Journal DAR 11767. Jeremy Brandon was arrested by two Los Angeles Police Officers in February 2000, for allegedly committing a lewd act upon a child. One of the arresting officers interviewed the child victim at the scene concerning the allegation. Brandon was charged in March 2000, with a lewd act on a child and failing to register as a sex defender.

Brandon moved for pre-trial discovery and requested the disclosure of the names, addresses and telephone numbers of all persons who filed complaints or who were interviewed by the police department concerning alleged misconduct by the two arresting officers reflecting acts of dishonesty or untruthfulness. The City of Los Angeles did not oppose the motion and the police department produced the documents for an in camera inspection.

One of the officers had a 1996 complaint in which the allegation was failing to report the beating of a prisoner. The documentation of the 1996 complaint referred to a prior complaint involving an incident in 1990 in which the officer had unjustifiably sprayed maze into somebody's face and failed to report that incident. An internal investigation was done in each case and found the allegations were true despite the officers denial that the events occurred. The trial court ordered the police department to disclose the names, addresses and telephone numbers of the complainants and witnesses relating to both of the complaints including the 10-year old complaint. After a motion for reconsideration of the order was denied, the City petitioned the Superior Court for a writ of mandate claiming that the trial court was violating the five year rule in Evidence Code § 1045(b)(1).

Evidence Code §1045(b)(1) states: "information consisting of complaints concerning conduct occurring more than five years before the event or transaction which is the subject of litigation in aide of which discovery or disclosure is sought [shall be excluded from disclosure]."
The Appellate Court discussed the issue of Brady exculpatory material as it related to this case. The Appellate Court noted that Penal Code § 832.7, subdivision (a) prohibits any person including the prosecutor from disclosing information concerning a complaint against a police officer unless disclosure is made pursuant to a motion under Evidence Code § 1043. Moreover, according to the court, Evidence Code § 1045 prohibits a court from disclosing information concerning a complaint against a police officer which involves conduct that occurred more than five years before the incident which is the subject of the criminal prosecution.

This statute thereby ostensibly relieved the prosecutor of the duty to disclose material information concerning a complaint against a police officer involving conduct that occurred more than five years before the incident and also prohibited the court from ordering disclosure of that information at anytime.

Then the Appellate Court went on to discuss the constitutionality of Evidence Code § 1045. The court held that a criminal defendant's right to present relevant evidence to the jury is fundamental but not absolute. This right is subject to the reasonable restrictions that are placed on it in furtherance of the legitimate interests of the criminal trial process. However these rules are not allowed to be arbitrary and disproportionate to the purposes they are designed to serve. Where a court is confronted as it was here with a state law that infringes upon the constitutional right of a criminal defendant, the court must balance the legitimate interest served by the state law against the fundamental rights of the defendant in light of the particular facts and circumstances of the case.

The five year rule in Evidence Code § 1045(b)(1) serves the purposes of ensuring that only relevant evidence is introduce to trial and protects the police officers interest in the confidentiality of his or her personnel records. This rule is based upon an assumption that records that occurred more than five years before the incident are not relevant to the pending litigation.

This court found that assumption made be unjustified in some cases. A police officers misconduct five years earlier may have some probative value as to the officers later conduct in similar circumstances. For instance, prior acts of dishonesty made be probative of a persons honesty and veracity at the present even after five years. Indeed according to the Court such evidence is ordinarily admissible to impeach a witness unless its probative value is substantially outweighed by the probability of prejudice under Evidence Code § 352. The trial court here determined that the information from the 1990 complaint was material for purposes of impeachment. The weight of the defendant's interest with respect to the particular evidence in a case depends upon the importance of that evidence to the issues of the guilt and punishment.

The court noted that the City did not challenge the finding made by the trial court that the 1990 complaint is material for purposes of impeachment and the City did not even attempt to show that the police officers testimony would be relatively unimportant to the issues of guilt and punishment or the requested information is unimportant for purposes of impeachment.

The appellate court supported the trial court's implied finding that the police officers confidentiality interest does not outweigh defendant Brandon's interest in this case. The trial court properly weighed defendant Brandon's interest against the interests served by the statute and determined that the defendant's interest outweighed the interest served by the statute. It found to enforce the five year limitation would unduly infringe upon the defendant's right to a fair trial.

The appellate court declined to find that Evidence Code § 1045(b)(1) is facially unconstitutional, but it did find that Evidence Code § 1045(b)(1) precluding the disclosure of information concerning complaints that are over five years old cannot be applied par se; meaning the police department cannot withhold complaints that are over five years old from an in camera inspection on the ground that the court cannot their disclosure. Rather the police department must produce for inspection by the court all of the records or information described in motion under Evidence Code § 1043 without limitation as to time.

If the court does find information concerning complaints exist in the file that are over five years old the court must determine whether the information is favorable to the defendant for purposes of impeachment and material to the issue of guilt or punishment and if so, it must determine whether the defendants right to a fair trial outweighs the interest served by the five year rule of Evidence Code § 1045(b)(1), as applied to the facts of that case. Evidence that is material to the issue of guilt or punishment under Brady is relevant as a matter of law. The defendant's fundamental rights to a fair trial ordinarily outweigh the police officers interests in the confidentiality of his or her personnel records.

SO WHAT DO WE DO NOW?

Evidence Code §1045(b)(1) is still constitutional under the holding of this case but its impact in the overall discovery process has been substantially watered down by this case. No longer will police departments be able to get away with not bringing records that are over five years old to the in camera proceeding because under 1045(b)(1) a court could not order their disclosure. Now, all records in the personnel file that fit the description of the request in the motion must be bought regardless of their age. They must be produced in the in camera inspection for the judge to review and then the judge must engage in the balancing test that is described in the case. If the judge finds that the information is material and outweighs the police officers confidentiality rights as opposed to the defendant's right to a fair trial, trial court must order information from that complaint be disclosed and agencies will no longer be able to say, "this is improper because of the records are too old."

This case perhaps underscores the notions that citizens complaints and the investigation that flow therefrom which are more than five years old should be destroyed. Unless there is an overwhelming need to keep these records as part a potential pattern of misconduct that an officer has shown over a several year period of time, these records need to be destroyed in compliance with Penal Code § 832.5 at the earliest opportunity with all the appropriate approvals from the city attorneys in your jurisdiction as well as city council approval. So long as the destruction of these records is part of a routine purging that is accomplished with all the proper approvals and resolutions and it is not done as bad faith measure to deny relevant evidence to some litigant there should be no impediment to the destruction of records this old. Then, the old adage applies if you don't have the documents they aren't discoverable.

This case also underscores and perhaps amplifies on the holding of People v. Mooc which requires the entire personnel file to be brought to court for an in camera review and prohibits the act of systematically censoring certain portions of the complaint from the trial judge. As of this date the petition for review of that case is still pending with the Supreme Court and its status of good law has not changed.

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 Greg P. Palmer at (714) 446-1400.