Filing a Pitchess Motion for Police Misconduct

Sometimes police overstep their authority and are dishonest in their work or use excessive force or coercion during an arrest or interrogation.

If you’ve been charged with a crime and believe that an officer arrested you engaged in misconduct, proving the misconduct may be helpful to your defense. Police officer misconduct can include:

• Excessive Force
• Untruthfulness
• Racial Profiling

If you need help gathering evidence to support your misconduct claim, you can file a Pitchess Motion.

What Is a Pitchess Motion?

The pitchess motion permits a defendant in a criminal case to request records about a police officer’s background and conduct on the job that may be relevant to the defendant’s defense.
Upon granting the motion, the judge will order the public agency responsible for the officer to turn over any information related to your defense about the officer:

• Use of force incidents
• Allegations of excessive force
• Citizen complaints
• Background check information

What Has Been the Impact of Senate Bill 1421?

Four important things are accomplished by California Senate Bill 1421. They are:

• Opens certain police records to public inspection;
• Establishes the types of “records” that are eligible for release;
• Redacts certain information according to instructions; and,
• In other cases, information in an officer’s personnel file cannot be disclosed.

What Are Publicly Accessible Records?

The public has access to four types of personnel records under SB 1421. These include:

• Police records concerning an incident or investigation involving the discharge of a gun by a police officer;
• Records relating to an incident, or investigation, in which a police officer used force against a person, resulting in death or great bodily injury;
• Records concerning an incident in which a police officer was found to have committed sexual assault; and,
• An incident in which a finding was made that an officer acted dishonestly.

The following are examples of dishonest acts that may be recorded as part of the fourth category:

• Perjury;
• False claims;
• Falsifying reports;
• Destruction of evidence;
• Fraudulently presenting evidence; and
• Fraudulently altering evidence

Information About Specific “Records” That Could Be Released

SB 1421 allows the public to view “records” found in a police officer’s, or another law enforcement officer’s, personnel file.

The Senate Bill defines “records” as items and information such as:

• The results of investigations;
• Evidence in the form of photographs, audio recordings, and videos;
• Recordings or transcripts of interviews;
• Reports from autopsies;
• A document that presents findings or recommends findings; and
• Disciplinary records

What Is the Redacting of Information?

Senate Bill 1421 stipulates that some information needs to be redacted or edited from authorized records before they can be inspected for the purpose of protecting the identity of certain parties and witnesses.

The following information is redacted:

• Individually identifiable information (e.g., names, addresses, and phone numbers);
• Medical or financial information that is confidential;
• Federally prohibited information;
• Information that could jeopardize an officer’s safety; and
• Information where not disclosing it outweighs its public benefit.

When Should Pitchess Motions Be Used?

Pitchess motions should be used for records that may reveal racial profiling or discrimination or that a confession was coerced.

What Kinds Of Misconduct Are Covered Under Pitchess Motions?

Only when these files are accessible in an investigation can exculpatory evidence be uncovered that can be used to impeach or question the credibility of the police officer in question.

Depending on whether this officer has been investigated for misconduct or has been reprimanded, your attorney may be able to move to dismiss the charges, suppress evidence, or negotiate a plea to a lesser charge.

The following types of police misconduct can be the subject of a pitchess motion:

• Intimidation
• An arrest involving excessive force
• Forcing a confession through force
• Arrests or detentions based on racial profiling
• Evidence planting
• Creating a police report or investigation report to justify a search or arrest

Example Of When To File A Pitchess Motion

Suppose a defendant is charged with resisting arrest or assaulting a police officer who shows no signs of bruises or injuries and contends they did not resist or defend themselves while being beaten.

The defense attorney could file pitchess motions to show an officer’s propensity for violence.
Pretrial motions such as pitchess may be brought before a preliminary hearing but are often brought afterward.

Included in the motion are:

• Court and defendant identification
• Records of the officer sought
• Identify the agency that has custody of the records
• Information about the records sought and what they might contain
• Affidavit from the defense attorney explaining the need for the records
• Proof of service on the agency holding the records

What Is a “Good Cause?”

A court’s decision to grant your motion depends on whether you can show “good cause.”.
To accompany the motion, your lawyer should submit an affidavit that details the facts of the case in an effort to justify the release of the officer’s confidential records.

You must describe every aspect of the underlying incident and all facts that prove the officer committed an act of misconduct in the affidavit.

There must then be some connection between the misconduct and the defendant’s case in order for the misconduct to be material.

The attorney doesn’t need to have direct knowledge of prior complaints of misconduct by this officer; only that they have been informed and believe the officer has previously committed misconduct.

The defense does not have the right to attend the in-camera review.

In-Camera Proceeding

A judge will determine if there is any relevant information pertinent to the defendant’s case.

The defendant will only be provided with that information if this is the case.

The following information may not be disclosed:

• A complaint or other information against the officer occurred more than five years before the alleged misconduct.
• An officer’s personal opinions or conclusions based on their investigation
• An allegation of misconduct that is too far removed from the facts

Consequences Of A Pitchess Motion

If you are successful, the judge will release only the contact information of persons filing complaints of coerced confessions, excessive force, or racial profiling.

Your attorney can request more specific information from the file if you cannot contact these people or their recollection is flawed despite good faith efforts.

Charges against you must be dismissed if the agency refuses to turn over the records.

If the Motion Is Denied, What Happens?

If you are convicted at trial, and your motion is denied, you are allowed to appeal your conviction based on the wrongful denial of your motion.

The issue is sent back to the trial court judge to conduct an in-camera examination if the appellate court agrees.

By showing that the disclosure of the information would likely have affected your trial outcome, you might be able to seek a new trial if relevant information is discovered.

If the Motion Is Granted, What Happens?

After the motion is granted, the file is presented to the judge for an in-camera inspection.

How Do I File a Pitchess Motion?

Pitchess motions must be submitted in writing and should include a statement explaining why you need the evidence and how it will benefit your defense. A knowledgeable criminal attorney can best help you prepare the motion with all of the required components and file it with the court to ensure you have the best defense possible.