WELCOME SUPREME COURT DECISION

ON THE LIMITS OF

PITCHESS TYPE DISCOVERY

The San Diego County Public Defender's office was routinely sharing with one another information obtained from a confidential police officer's personnel files following discovery obtained from a Pitchess motion. Their ability to continue to do this has been addressed by the California Supreme Court in a case involving the propriety of a trial court issuing a protective order which limits use of Pitchess type information to only the case in which the discovery was sought. The Court of Appeal held (1) that a protective order which limits the use of such material to the case to which it pertains is consistent with the law and (2) that the prosecutor is allowed contemporaneous discovery of the same material as the defense. The California Supreme court granted review and myself, along with Krista Jee of our office, authored an amicus brief on behalf of 79 California cities, CPOA, CPCA, and CSSA. We are pleased to announce that the Supreme Court ruled in favor of our position on the issue of the limitation on the use of the information to the case in which it was sought. (Alford v. Superior Court (People) (February 27, 2003) 2003 Cal. Lexis 1293.

Alford and another individual were arrested on drug charges. They contended the arresting officers used excessive force and made false statements in their reports. A Pitchess motion was granted, an in-camera review of the records was held and information from two incidents was found relevant and was ordered disclosed. The issue concerning the protective order prohibiting use of this information to only the Alford case generated the appeal.

PROTECTIVE ORDER

The controversy was based upon the language of Evidence Code § 1045(e). That subdivision states that the court "shall order that the records disclosed or discovered shall not be used for any purpose other than a court proceeding pursuant to applicable law. The defense argued the use of the indefinite article, "a," in the phrase . . . "a court proceeding . . . " meant that Pitchess information, once disclosed, could be used in any court proceeding, not just the case in which the discovery was ordered. The Court of Appeal was unpersuaded by the argument and in a 6-1 decision the Supreme Court was likewise unpersuaded.

The court acknowledged the "peace officer's just claim to confidentiality" and the defendant's right to all information

pertinent to his defense. In resolving those competing interests the court called the Evidence Code procedures to be a "veritable model of clarity and balance." We argued and the court agreed, finding the defense interpretation of the phrase "a court proceeding" meaning [any] court proceeding would defeat the purpose of the statute. It was meant to ensure that use of the material generated from a Pitchess motion would be confined to that case in which it was already shown to be material to the subject matter of the litigation. The entire phrase analyzed from the statute is "a court proceeding pursuant to applicable law." The portion of the phrase, pursuant to applicable law, refers to the statutory Pitchess scheme. Thus, without a Pitchess motion being heard and granted, Pitchess discovery is not allowed in that case.

The protestations of the public defender also did not persuade the Supreme Court. They argued that a protective order preventing them from sharing Pitchess information forces them to needlessly file Pitchess motions in subsequent cases and impedes their ability to represent their clients. The public defender failed to identify any impediment to their ability to represent their clients and the statutory authority for Pitchess discovery supercedes the general rules of public defenders offices about distribution of information gained by them.⁽¹⁾

PROSECUTORIAL ACCESS

A more sharply divided court ruled that the prosecution is not entitled to contemporaneous access to Pitchess information which is ordered disclosed to the defense. The justices ruled 4-3 that the DA is entitled to notice of the motion and the ability to respond to questions from the trial court about matters pertaining to the motion. Beyond that, however, the prosecution is entitled to nothing more, including access to the material disclosed to the defense. Since this case was granted review by the Supreme Court, we have been explaining to prosecutors that their right to the information ripens when the defense intends to call one of the witnesses it located with the Pitchess information pursuant to the reciprocal discovery rules (Penal Code § 1054.3). The Supreme Court adopted this rule and held this is the proper procedure.

The court did not leave the prosecution without a potential remedy here, though. The prosecution remains free to seek Pitchess disclosure by complying on their own with the Pitchess discovery requirements or they can interview the officer themselves to learn available impeachment material. Due to the above suggestions, look for more district attorney's joining defense Pitchess motions, serving the notice of joinder in a timely fashion and requesting joint Pitchess discovery that way.

SO WHAT DO WE DO NOW?

Insist upon the court granting a protective order, similar to the sample attached, which prohibits the defense (and the DA, if they are able to receive it too) from any use of the information except in the case under which it was disclosed.

Resist the temptation to provide to the prosecutor courtesy access of the same information disclosed to the defense unless the prosecutor complies with the Evidence Code procedures beforehand and expect that prosecutors will now join Pitchess motions brought by the defense. If they properly and timely join the motion, they will probably then be entitled to the information given to the defense. In any case, ensure the court specifically orders disclosure to both sides before doing so.

1. This holding is especially important. If agency counsel handling Pitchess motions would routinely seek protective orders such as the one authorized by this ruling, (a sample protective order used by our office is attached for your use) this should prevent the practice of some public defender's offices in maintaining a data base with Pitchess information accessible.

Be sure to consult competent legal counsel before deciding how to proceed on any matter to which these cases may be applicable.