Criminal Defendant Who Complains About the Officers Who Arrested Him is Entitled to
the Officers’ Statements on a Pitchess Motion

Briley v. Superior Court (Hermosa Beach Police Department)
2004 DJDAR 14790
(December 13, 2004)

            Following a huge fight involving Fourth of July partygoers and several officers of the Hermosa Beach Police Department, forcible arrests were made on Briley and others.  As a result of a newspaper advertisement made by some of the arrestees, a witness came forward and revealed the entire incident had been videotaped.  When Briley and his lawyer observed the videotape they claimed that the officers had conspired to cover up their brutality, used excessive force, and made groundless arrests.  After the Hermosa Beach Police Chief and the District Attorney’s office reviewed the videotape, additional charges were added against Briley.  A complaint of police misconduct was made by Briley and others which led to an internal affairs investigation by the Hermosa Beach Police Department that included an interview of Briley and the arresting officers.
            Briley, who was represented by Thomas Beck, filed a Pitchess motion in which he requested the names of prior third party unrelated complaints of excessive force, as well as the disclosure of verbatim peace officer and civilian witness statements gathered during the internal affairs investigation of the arrest by Hermosa Beach Police.  The case did not turn on whether a good cause was shown in the motion, it turned on whether counsel was entitled to the verbatim witness statements from the Hermosa Beach internal affairs investigation.  The trial court initially granted that request, but then reversed itself and denied it.  The trial court’s concern was that if such a request was granted it would have the effect of encouraging every criminal defendant to complain about police misconduct to generate an internal affairs investigation simply to obtain discovery later through a Pitchess motion.  Briley filed a writ of mandate challenging that decision.
            The Appellate Court noted that the statements exist because the petitioner’s filed a citizen’s complaint against the involved officers, which, in turn, triggered an internal investigation pursuant to Penal Code § 832.5.  Records created as a result of such an investigation become confidential and shall only be disclosed in a criminal or civil proceeding via a Pitchess motion.  The Appellate Court said that the trial court’s reliance upon a hypothetical concern about situations that could arise in other cases are policy concerns that might be relevant to a legislative review of the statutory scheme, but they were not proper discretionary decision making by the trial court. 
            Here, there is a complaint against the officers in the very incident on which the prosecution is based;  the request for discovery must be analyzed in light of those facts.  The fact that other defendants, and other cases might potentially file a complaint in bad faith for the purpose of generating discoverable evidence, does not deprive the respondents of their rights out of a hypothetical concern that this case will be the breach in the dam through which all future cases will pour.  The analysis in each case must be made on the facts of that case and in light of the rights of the parties.  After citing many cases, including the Brady concept that every person charged with a crime has the right to obtain statements of percipient witnesses and witnesses that are anticipated to be called at trial.  This court held that the statements in the internal affairs investigation concerning the very case upon which the defendant is being prosecuted should be delivered in compliance with the Pitchess motion. 
            This was a two to one decision with Justice Woods concurring in part and dissenting in part.  The portion of Justice Woods dissent had to do with the concern that every criminal defendant will be motivated to file a frivolous complaint against the officers in order to generate an internal affairs investigation from which he or she can obtain discovery later through a Pitchess motion.  Justice Woods suggested that prior to an actual in camera inspection of the records, the trial judge should have initially taken evidence and made a finding pertaining to the motive of the petitioners in seeking the disclosure of the verbatim statements.  If it was out of a desire and demonstrated good faith need for the statements, the in camera review should occur.  If, on the other hand, it was motivated by a self centered desire of simply getting the jump on civil discovery for an anticipated future civil action, the court should not conduct an in camera review. 

SO WHAT DO WE DO NOW?

We have successfully suggested to trial courts in the past that they borrow from the concept of Vela and, in the situation where a Pitchess motion requests the interview statements of the officers and civilians on the very case for which the defendant is being prosecuted, that the trial judge review the transcripts and determine which parts are relevant and which parts are not.  In anticipation of a trial judge not being willing to do that, given his or her heavy calendar, myself and my custodian have sat down with the interview transcripts and determined if there are parts that are relevant and parts that are irrelevant.  During the in camera review we explain these two different parts and suggest that the irrelevant parts be redacted in compliance with Vela.  This has been a most successful approach in the past.

This is not a new concept.  The notion that a criminal defendant is entitled to the statements of all percipient witnesses bearing on the matter for which he is being prosecuted has been around for a long time.  What has been missing are cases analyzing this concept in terms of the situation presented here where the defendant makes his own complaint about the arresting officers on the matter which he is being prosecuted.  There are a handful of cases deciding this concept prior to
Evidence Code § 1043 being enacted in 1978.  There have been relatively few cases dealing with this concept since, except this case.
            Since the time I began teaching the class on Pitchess motions for CPOA six years ago, I have been predicting that a case such as this would come down this way.  It is one thing to ask for the statements of prior unrelated third party complaints; it is quite another to ask for the statements of the very people who will likely be the primary witnesses against you in your criminal trial.  The right to a fair trial includes the right to have interview statements made prior to trial by the individuals who will likely testify against you.  That right to a fair trial and discovery of those interview statements trumps the confidential nature of the peace officer’s personnel file.
            What this court did not address is how a trial judge is supposed to go about reviewing the interview transcripts and determining what, if any, is relevant and not relevant in those transcripts.  When our office has confronted this issue in the past, we have borrowed from the case of Vela v. Superior Court .  Vela was an officer involved shooting and a civil suit against the city thereafter.  The interview statements of the officers in the officer involved shooting were the subject of a discovery request.  The appellate court in that case suggested that the trial judge review all the transcripts at issue, determine which parts are relevant to the action and which parts are not and order that those parts that are not relevant be redacted and the interview transcript be subject to disclosure thereafter. 

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