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Pitchess Motions and the Destruction of Records (From Criminal Law Seminar, 1977, Tape 2 - See NCJ - 69932)

NCJ Number
R Berke
Date Published
0 pages
Strategies that can be used by defense attorneys to obtain police Internal Affairs records on citizens' complaints of police misconduct, or, if such records have been destroyed, to ask for sanctions, are discussed.
Part of a series of five audiocassettes containing the proceedings of the 1977 Statewide California Criminal Law Seminar, sponsored by the California Attorneys for Criminal Justice, and primarily intended for an audience of defense attorneys and law students, this presentation by the Los Angeles County Deputy Public Defender deals with the problem of the destruction of Internal Affairs police records to prevent discovery by defense attorneys. The phrase Pitchess motions refers to a precedent-setting 1974 California Supreme Court decision regarding discovery motions by defense attorneys seeking police Internal Affairs information concerning records of citizens' complaints for use of excessive force and other unlawful acts by police officers. Since denying defense attorneys' access to these records is now a felony, the way to circumvent the Pitchess motions decision is simply to destroy such records. This was done, for example, by the Los Angeles District Attorney's office in full awareness that the destruction of discoverable material was a felony. Defense attorneys must use Pitchess motions to ask for sanctions, up to and including case dismissal, if their requests for police Internal Affairs records are frustrated by destruction of the records they are seeking. Before asking for police Internal Affairs records, however, attorneys should find out how a police department classifies and files citizens' complaints on police officers: suggested strategies include examining police manuals and subpoenaing Internal Affairs personnel. Also discussed in this presentation are compliance hearings (as tests to find out whether a defense attorney has received that which the Court has ordered) when destruction of records is suspected. The meaning of deprivation (i.e., when the Court orders some records to be produced and the order is not complied with) is explained; dismissal should be requested where there is no compliance with a discovery motion, because evidence is being withheld in such a case. Detailed instructions are given on how to answer all possible arguments that may be offered by prosecutors and police departments to deny access to Internal Affairs records (e.g., the open season on police and the anarchy arguments). A syllabus provided with the cassettes contains relevant material and additional guidelines on using the Pitchess motions to gain access to police Internal Affairs records.