Obtaining Evidence of Prior Police Misconduct

Free & Confidential Consultations

Whether it’s about allegedly planted evidence, racial profiling, a falsified arrest report or a coerced confession, criminal defense attorneys regularly hear accusations of police bias and misconduct. While some clients’ claims turn out to be exaggerated or even downright false, we know that a significant number are credible. We therefore always keep an open mind and listen carefully and objectively. We also know that if the client’s story seems to ring true, it’s possible that this wasn’t the first time the officer acted improperly (we may even recognize his or her name). If we can obtain evidence of similar prior incidents, it can be used in court to call into question the officer’s credibility.


However, determining whether an officer has such a history typically means we must see whether he or she has been disciplined by the department. This usually requires access to the officer’s internal departmental personnel file. Not surprisingly, departments are typically strongly opposed to disclosing the contents of these files.

Privacy Versus Due Process


The desire to protect an officer’s privacy is legitimate, but, as stated in the 1985 California Supreme Court case of  People v. Memro, it must be balanced against the right of an accused to know if the officer who arrested and will testify against him has a history of using excessive force, coercing confessions or other misconduct. While finding such evidence doesn’t invariably exonerate an accused, proof of such prior misconduct may nevertheless cast doubt upon the truthfulness of an arresting officer’s testimony.


The California courts have approached this conflict on a case-by-case basis. Defendant’s counsel must first file a so-called “Pitchess Motion”, which is named for the 1974 California Supreme Court case which first established the general parameters for such requests, Pitchess v. Superior Court. The court then conducts a “good cause” hearing in which it considers the relevance of the information sought as well as the specific facts alleged by the defendant. Neither the defendant nor the arresting officer typically testifies at this hearing, and a motion may be filed in juvenile court.


Since the Pitchess decision, the procedure and standards for pursuing disclosure of a peace officer’s personnel records have been refined and codified in the California Evidence Code.


To prevail on a Pitchess motion, the defendant must provide an affidavit stating specific facts that relate to the statements in the arresting officer’s report and which provide a defense to the charges. As stated by the Court in People v. Noel, while an accused’s affidavit will generally be adequate so long as it asserts “plausible” facts, a Pitchess motion will not be granted based upon vague allegations of conspiracies among numerous officers to frame a defendant. The court must also consider whether the information sought can be obtained from routine, non-personnel records.     

If the judge finds that good cause exists, he or she will review the record in chambers to determine their relevance to the pending case.


As further protection of the officer’s privacy, if the Court orders disclosure:


‒ It must stipulate that the  records may not be used for any other purpose beyond the pending      case

‒ It may also make such additional orders as it considers necessary in order to protect the officer from “annoyance, embarrassment or oppression”.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

Rate this Post

1 Star2 Stars3 Stars4 Stars5 Stars