Use of Audio and Video Footage to Oppose Pitchess Motions

By Ulysses Aguayo

As we have mentioned in our earlier editions of Prison Break, a defendant in a criminal action may make a motion for access to information in the personnel file of an arresting police officer under Pitchess v. Superior Court. The rationale behind Pitchess motions is that if an officer’s personnel file contains information relevant to a person’s claim that the officer engaged in misconduct, then, as a matter of fairness, the person should have access to that information. In practice, criminal defense attorneys use Pitchess motions as a wide net to obtain any negative information or records in an arresting officer’s personnel file in an effort to damage the arresting officer’s credibility since, often times, the arresting officer is the primary source of evidence of the underlying criminal violation.

Among other things, a defendant must show good cause for in-camera review of an officer’s personnel records, during which a judge will examine whether the personnel records are relevant to the case. The issue is the threshold for showing good cause for in-camera review of an officer’s personnel records is very low. Under Pitchess v. Superior Court and its progeny, to show good cause a defendant must establish a “specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.”

In practice, this sometimes means that a defendant’s declaration containing a simple denial of the facts put forward by the arresting officer (usually detailed in the arrest report) can be sufficient to show good cause. For example, take a scenario where a defendant is arrested for driving under the influence of alcohol (“DUI”). According to the arrest report, the officer’s underlying reason for pulling over the defendant is the defendant failed to switch on his turn signal for a right-hand turn. After field sobriety tests, the officer learns the defendant is over the legal Blood Alcohol Content limit and arrests him for DUI. The defendant files a Pitchess motion alleging dishonesty and fabrication of probable cause by the arresting officer. Here, a declaration stating that the defendant did switch on his turn signal for the right-hand turn might be sufficient to show good cause which, in turn, would trigger judicial in-camera review of an officer’s personnel records. In this scenario, there is an obvious disconnect between the low threshold for showing good cause and the law stating peace officer personnel records are privileged and protected pursuant to Penal Code section 832.7 and the constitutional right to privacy.

In an effort to bridge the gap and make it harder for a defendant to show good cause, attorneys have developed new strategies for opposing Pitchess motions. Attorneys at Burke have successfully argued that courts can consider Body Camera Footage and/or Mobile Audio Video System footage (“MAVS footage”) in determining whether the defendant’s alternative factual scenario of officer misconduct is “plausible” in light of available audio or video footage, and therefore, whether the good cause standard has been met. MAVS footage, when available, generally includes both audio and video data and is recorded by front and rear-facing cameras affixed to the vehicles of law enforcement officers. These cameras are usually programmed to begin recording when a siren or lights are turned on or when manually activated by the officer.

To illuminate how such footage makes it harder for a defendant to show good cause, recall the DUI scenario discussed above with one new fact – the arresting officer’s vehicle recorded MAVS footage. Now, a declaration stating that the defendant did switch on his turn signal for the right-hand turn would no longer be sufficient to show good cause, since it would fly in the face of available video data.

It should be noted that before using video data, it is helpful for the City and police department to communicate with the District Attorney so ensure that such tactic does not interfere with the discovery process and prosecution of the case. Typically the district attorney’s office will not have an objection to this strategy, and this will usually only strengthen the prosecution to show a criminal defendant’s lies/mischaracterizations.

Therefore, as described in the above example, attorneys have successfully used MAVS footage and/or Body Camera Footage on numerous occasions to effectively raise the good cause threshold for criminal defendants bringing Pitchess motions, reaffirming the privileges and privacy protections afforded to peace officers under the Penal Code and the California Constitution.

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