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SPECIAL DIRECTIVE 02-07

POSSIBLE BRADY MATERIAL IN THE
POSSESSION OF LAW ENFORCEMENT

December 7, 2002

THIS SPECIAL DIRECTIVE SUPERSEDES SD 02-04

On May 13, 2002, this office issued a comprehensive Brady policy set forth in Special Directive 02-04 and Special Directive 02-05. At that time, the Brady Alert System was being developed. In the intervening time, the U.S. Supreme Court and California Supreme Court have given us additional guidance through their decisions.

Full compliance with constitutionally required discovery under Brady v. Maryland (1963) 373 U.S. 83, must include a method of identifying and accessing possible Brady material in the possession of law enforcement. Therefore, in conjunction with SD 02-08, which sets forth office policy for handling Brady material known within the Office of the District Attorney, this policy addresses possible Brady material which may be in the possession of law enforcement. This policy fulfills prosecutorial obligations while protecting the statutory and privacy rights of police officers.

Subject to any future changes in the law, this Special Directive sets forth the office policy for handling this component of Brady discovery obligations.

I. BRADY REQUESTS

It is the responsibility of each deputy district attorney to determine whether to request a law enforcement agency to review their personnel files for possible Brady documents concerning their employees. In order to make any request, the police report and other written documentation provided by the law enforcement agency must establish, on its face, that a law enforcement employee is a material witness and that there may be evidence concerning that material witness which is favorable to the defense and to which the defense may be entitled. Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that may impeach the credibility of a government witness. (Giglio v. United States (1972) 405 U.S. 150 at 154.) A Brady violation occurs where the failure to disclose evidence to the defense deprives the defendant of a fair trial. (United States v. Bagley (1985) 473 U.S. 667, 675.) Thus, in the context of Brady requirements, a defendant is deprived of a fair trial when it is reasonably probable that the failure to provide evidence to the defense will affect the outcome of the case, (United States v. Bagley, supra, 473 U.S. at 682.), or stated another way, the failure to disclose the evidence "could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict." (Kyles v. Whitley (1995) 514 U.S. 419, 435.)

A. THE PROSECUTION MUST MAKE A PRELIMINARY DETERMINATION OF POTENTIAL IMPEACHMENT OR EXCULPATORY MATERIAL AT ARRAIGNMENT ON AN INFORMATION

Potential impeachment or exculpatory material includes: (1) statements made by the defendant or potential defense witnesses which contradict statements made by a material law enforcement employee/witness; (2) statements made by the defendant or potential defense witness that a material law enforcement employee/witness used excessive force; and/or (3) statements made by the defendant or potential defense witness that allege that a law enforcement employee made racial, religious or other statements exhibiting bias.

If a deputy district attorney determines, from police reports or witness interviews, that such statements exist and also determines that the information involves a material law enforcement employee or witness, a request shall be made to the law enforcement agency to review its personnel files for possible Brady documents. If the police report and other written documentation are silent as to any conflict between the material law enforcement witness and the defendant or other potential defense witness, then no request shall be made.

If the deputy cannot determine whether to request that the law enforcement agency search for possible Brady documents, the deputy shall consult with the Head Deputy or Deputy-in-Charge.

If the deputy requests that the agency search its records for Brady documentation, he or she shall make a notation in the district attorney file as to the reason for the request. A reference to the relevant part of the police report or other written documentation supporting the request is sufficient. If no request to search personnel files is made, then no such entry is necessary.

B. PENAL CODE SECTION 1054.1

Penal Code section 1054.1 requires disclosure of names and addresses of witnesses, statements by the defendant, all relevant real evidence, the existence of felony convictions of material witnesses, exculpatory evidence and relevant written or recorded statements of witnesses the prosecution intends to call or reports by them at least 30 days before trial. Therefore, in order to comply with the 30-day rule of section 1054.7, the request that a law enforcement agency review its personnel files following arraignment on an Information should allow sufficient time for compliance.

C. The Brady Form

A special form has been prepared to use whenever a deputy requests a search for possible Brady documents from law enforcement. This form is the only form to be used by deputies making such requests. The Brady form must be completed in its entirety and with sufficient specificity to enable the law enforcement agency to comply with the request. (See, for example, People v. Mooc (2001) 26 Cal. 4th 1216, 1230.) 1

Any request for a law enforcement agency to search its personnel files shall be made in writing using the Brady form. An oral request shall never be made.

On August 26, 2002, the California Supreme Court in City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal 4th 1 noted that if Penal Code section 832.7 were used to defeat the right of a prosecutor to obtain access to officer personnel records in order to comply with Brady, it may be unconditional as applied. (Footnote 2 at p. 12)

D. Return of Form

Each agency should designate a sworn officer who will receive each request and respond in a timely fashion. The law enforcement agency designee will be directed to return the Brady form to the appropriate Head Deputy or Deputy-in-Charge who shall give the original to the deputy district attorney assigned to handle the case. A copy of the signed form should be provided to the defense and so noted in the district attorney file.

This manner of processing should avoid misdirection of the form.

E. Defense Initiated Requests

If a defense attorney, either orally or in writing, provides information to the assigned prosecutor that a material law enforcement witness’ version of events may contain material misstatements or omissions, that defense attorney is to be directed to either file a Pitchess motion or provide to the prosecutor a signed declaration under penalty of perjury by the individual with personal knowledge of the law enforcement witness’ untruthfulness.

Upon receipt of such a declaration, the prosecutor shall request that the employing agency review its personnel files for possible Brady material using the Brady form.

If the defense files a Pitchess motion in lieu of a declaration, the deputy shall not make a separate request of the employing agency.

II. The Brady Motion

If a deputy district attorney receives a Brady form indicating the existence of possible Brady information for a material witness, that deputy shall file a motion and accompanying supporting documents with the court, indicating there is reason to believe that there may be information about the credibility of a law enforcement witness to which the defense may be entitled. A copy of the motion shall be served upon the defense as well as the legal representative for the agency. The law enforcement officer involved shall also be notified by the Head Deputy or Deputy-in-Charge. The motion shall request the court hold a hearing pursuant to all notice and statutory requirements under Code of Civil Procedure section 1005(b). The motion shall further request, pursuant to Evidence Code section 1043, the court review the information provided by the agency’s custodian of records in camera, ex parte and determine whether to release any documents to both the defense and to the prosecution. The deputy shall request a protective order limiting the disclosure and use of the information provided to both the prosecution and the defense to the specific case before the court pursuant to Evidence Code section 1045. If the court releases any information without a protective order, the deputy shall immediately notify the Brady Compliance Division pursuant to SD 02-08.

Attachments

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1 "To the extent the Court of Appeal suggested the custodian of records must always produce the entire personnel file in response to a Pitchess motion, however, the appellate court overstated the custodian’s obligation under Pitchess and Evidence Code sections 1043 and 1045. Pursuant to Evidence Code section 1043, subdivision (b)(2), the defendant in his or her Pitchess motion is required to identify the ‘type of records or information sought.’ (Italics added.) For example, in this case, defendant sought only documents, including disciplinary records or citizen complaints, pertaining to incidents of ‘force, aggressive conduct or violence directed at persons detained, arrested, or in custody, and/or the giving of false testimony,’ as well as ‘[t]he records of any statements of psychiatrists, psychologists, therapists or consultants contained in [the Department’s] files’ for Officer Garcia. The custodian’s obligation, therefore, was not to produce Officer Garcia’s entire file, but only those documents in his file that were potentially responsive to defendant’s specific request." (People v. Mooc, supra, at 1230).