Alford v. Superior Court, 29 Cal. 4^th 1033

On February 27, 2003, the Supreme Court ruled in favor of the position that the use of the material generated from a Pitchess motion should be confined to that case in which it was already shown to be material to the subject matter of the litigation. The Supreme Court, found that pursuant to Evidence Code section 1045(e) the 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 Supreme Court also found against the public defender which argued that a protective order preventing them from sharing Pitchess information would force them to needlessly file Pitchess motion in subsequent cases and would impede their ability to represent their clients. Therefore if agency counsel handling Pitchess motions would routinely seek protective orders, such as the one authorized by this ruling, should prevent the practice of public defenders maintaining a data base, with Pitchess information, accessible to all other deputy public defenders.

Additionally, the Supreme Court ruled that the prosecution is not entitled to contemporaneous access to Pitchess information which is ordered disclosed to the defense. The district attorney is entitled to notice of the motion and the ability to respond to questions from the trial court about matters pertaining to the motion. The prosecutor's 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). However the prosecution remains free to seek Pitchess disclosure by utilizing a Pitchess motion, or it can interview the officers to learn of available impeachment material.

HOW THIS EFFECTS YOUR AGENCY

First, your agency should insist on the court granting a protective order, which prohibits the defense (and the District Attorney, if they are able to receive it too) from any use of the information except in the case under which it was disclosed. Second, do not provide the prosecutor courtesy access of the same information disclosed to the defense unless the prosecutor complies with the Evidence Code procedures. Third, expect that prosecutors will now join Pitchess motions brought by the defense.