Reevaluating California's Pitchess Process In Light of the Police Officer Misconduct Problem

Jaime A. Lubbock, Sidley Austin LLP

Abstract

The California Supreme Court's decision in Pitchess v. Superior Court, allowing defendants access to police officer employment files under certain specific circumstances, was intended to strike a balance between a criminal defendant’s right to a fair trial and a legitimate interest in maintaining the confidentiality of police officer employment files. The statutory reaction to the Pitchess decision and subsequent court rulings have tipped this balance in favor of officer privacy, sacrificing not only the individual fair trial right, but foregoing a valuable tool in the exposure and deterrence of officer misconduct. The relevant statutes within California’s penal and evidence codes safeguard police officers from the "fishing expeditions" into their employment files allegedly authorized by the Pitchess decision. In practice, however, the Pitchess process goes well beyond stopping “fishing expeditions” and ultimately shields police officers engaged in ongoing acts of misconduct from public scrutiny. Two aspects of the Pitchess process in particular appear to exist for the sole purpose of providing additional, unnecessary barriers to officer employment files. First, California Evidence Code section 1045 holds that a judge "shall" exclude from discovery any citizen complaint of police officer misconduct older than five years, regardless of the relevance of that complaint. This aspect of the statute also serves as authorization for the systematic destruction of complaints older than five years, making it rare that a judge will even see such a complaint when reviewing an officer's file. Second, the statutes and subsequent case law provide virtually no reviewable rules for determining which records are discoverable. The custodian of the employment files is required to bring in only those records likely to be relevant, without satisfying any guidelines for determining that relevance. Furthermore, during an in camera review of the file, the judge must follow strict exclusionary rules but is provided with no statutory criteria for inclusion beyond basic relevance.

In the name of protecting good officers from undue harassment and exposure of their employment records, the Pitchess process provides an unnecessary and inappropriate shield for officers who have a history of misconduct. Part I of this paper begins with a review of the development of the Pitchess process from the original decision to its current statutory form and judicial interpretations. This Section concludes with an evaluation of the interests being served by the process in its current application. Section II provides an analysis of the prevalence and forms of police officer misconduct within the United States in order to help clarify the problem that the Pitchess process could be developed to address. Finally, in Section III, I consider the two aspects of the Pitchess process that I argue serve no purpose beyond a bald protection of officers from scrutiny. Addressing both California Evidence Code section 1045 and the lack of reviewable rules for determining record discoverability, I provide specific recommendations for changes that would not only establish greater balance between the fair trial right of a defendant and the privacy right of an officer, but would also make the Pitchess process a more effective tool in addressing officer misconduct.

In a society where police misconduct is an ongoing problem, the Pitchess process should be viewed not as an assault on officer privacy, but as an additional opportunity to address officer misconduct. By redrawing the statute to eliminate those aspects which do not serve the legitimate protection of officers from “fishing expeditions,” the Pitchess process will cease to be a shield for officers with a history of misconduct. While still protecting the legitimate privacy interest in officer employment files, the Pitchess process could be used to bring those officers with career histories of misconduct into the public view through impeachment on the witness stand and jury assessment of credibility. Finally, by changing the statute to tie the release of misconduct information to the continuation of the officer’s misconduct over time, the Pitchess process could act as an incentive for officer discipline and reform. In this way, the Pitchess process can reflect neither our worst fears about officer behavior nor our unrealistic ideals, but rather effectively serve our actual needs.