by Dale Chappell

The Supreme Court of California held on August 26, 2019, that a so-called “Brady List” maintained by a law enforcement agency about officers who would have credibility problems if called to the stand at trial may be turned over to prosecutors when an officer on that list is involved in a case.

In 2016, the L.A. County Sheriff’s Department sent a letter to 300 of its 7,00 officers informing them that a review of their confidential personnel file “identified potential exculpatory or impeachment information” that it would turn over to prosecutors in an effort to preclude that officer from being called to the stand in a criminal trial. This information included entries for “immoral conduct,” bribes, theft, tampering with evidence, lying, influencing witnesses, and falsifying records, to name just a few. This letter was supposedly sent to only those officers found to have actually committed these offenses, not just those who were merely investigated for such violations.

The letter also said the department would be required to turn over this information in the officers’ personnel file to any prosecutor in a case where the officer may be called as a witness. This prompted a move by the Association for Los Angeles Deputy Sheriffs (“Union”) to file a complaint in court seeking an injunction to prevent disclosure of this information. The department then backed down and agreed to wait on a ruling from the court before it handed over the information.

The superior court agreed with the Union that the information was confidential under the so-called Pitchess statutes, in particular Pen. Code, § 832.7(a), because it was about disciplinary action in the officers’ personnel records and that the law forbids any disclosure of this information. But the court did rule that the department must turn over the information to a prosecutor when an officer is “involved in the pending prosecution as a potential witness.”

The Union then filed a request for an immediate stay from the Court of Appeal and appealed the ruling. Granting the stay, the court concluded that the department is not required to turn over the information, even if the officer is a witness in a criminal prosecution, unless ordered to do so by a court. Not satisfied with this ruling, the Union appealed to the California Supreme Court, which granted review.

What is a Brady list? Under Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court held that, under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, the prosecution is required to hand over to the defense any evidence that may be favorable to a defendant. This includes material that may be used to question the credibility of the government’s witness, i.e., impeachment evidence. Since law enforcement officers routinely testify in criminal trials, some law enforcement agencies keep a “Brady list” of officers it knows may be discredited on the stand if called to testify at trial because of something they have done in the past. Numerous law enforcement agencies across the country keep such Brady lists, including those in Oregon, Florida, Arizona, Washington, Maryland, as well as the L.A. County Sheriff’s Department.

Who’s on a Brady list? As stated, law enforcement officers with a history of theft, tampering with evidence and witnesses, and lying or falsifying records are put on a Brady list. However, because these are considered “disciplinary” issues in the officers’ personnel file, they are not open to the public under the California Public Records Act. And that was the legal issue in this case: whether the department could turn over “confidential” personnel records of problem officers protected by the Pitchess statutes but nevertheless constitute Brady material to prosecutors. The California Supreme Court ruled that the department could do so.

In Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), the California Supreme Court held that a criminal defendant may compel discovery of evidence in the arresting officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. Thereafter, lawmakers codified Pitchess defining when a defendant may obtain that information. Upon a showing of “good cause,” the court may order that the custodian of the records “should bring to court all documents potentially relevant” to the case. That’s right: the law enforcement officer in charge of the records decides what information the court gets to see in determining what information should be disclosed to the defense.

The question before the California Supreme Court was whether the confidentiality of an officer’s personnel records bars disclosure to the prosecution in a case involving that officer as a witness. Balancing confidentiality under the Pitchess statutes and the “larger background of the prosecution’s Brady obligation,” the Court concluded that the department “may provide” prosecutors with its Brady list. However, it did not “require” it to do so.

The Court reasoned that because law enforcement officers are part of the “prosecution team,” any evidence held by law enforcement must be disclosed to prosecutors, if it would impact a defendant’s case. “The Department may share this limited information, for the limited purpose of ensuring Brady compliance, with the limited class of persons (i.e., prosecutors) with a particularized need to know,” the Court explained. It made a point of noting that: “We do not address whether it would violate confidentiality for a prosecutor to share an [Brady] alert with the defense.” 

Accordingly, the Court reversed and remanded the matter to the lower courts, allowing the department to share its Brady list with prosecutors. See: Association for Los Angeles Deputy Sheriffs v. Superior Court, 447 P.3d 234 (Cal. 2019). 

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