Access to Police Personnel Files for Criminal Defendants

Defendants who can show that an officer's past misconduct may be relevant to their defense can sometimes get access to confidential personnel files.

By , Attorney

As anyone who has ever contested a traffic ticket knows, courts frequently assume that whatever an officer says is the truth, even when witnesses refute the police's version of events. The presumption that an officer behaved appropriately on a given occasion or has accurately described an event is particularly challenging when it comes to scuffles between cops and citizens. Given the general predisposition in favor of cops, what's a defendant with a legitimate defense to do?

Requesting the Records

Most jurisdictions have a procedure for a defendant who alleges that an officer was an aggressor to access the officer's personnel records. The defense might have to request the records from the prosecution, a different agency that has "custody" of them, or both.

Personnel records often contain citizen complaints and other notations of officer misconduct. The theory behind giving the defense access to them is that documentation of prior acts of aggression by the officer will corroborate the defendant's claim. And the defense can follow the lead of the personnel files, conducting its own investigation of the officer's past behavior.

Getting the Records

That there is a process by which to request police personnel records doesn't mean that defendants automatically get them. In many instances, once a defendant makes a proper request of the personnel records of an officer-witness, the government (whether the prosecution or a different government agency that has the records) must review the files and provide any significant information that helps the defense.

The government typically may lawfully refuse to turn over personnel files if there's no basis to believe they're helpful or relevant to the defendant's case. Fortunately, courts frequently oversee the review process in order to determine whether disclosure of the records would be favorable to the defense.

Records Procedure in Action

In California, for example, a defendant is entitled to police personnel file information that's relevant to his or her defense—the defendant doesn't have to make much of a showing to force the government to turn over and the court to review the relevant records. (See, for example, Cal. Pen. Code, § 832.7 (2019), Evid. Code, § 1043 and following (2019), Garcia v. Superior Court, 42 Cal.4th 63 (2007).) All the defendant must do is provide some specifics as to how the information would support his or her defense or impeach the officer's credibility. (Garcia v. Superior Court, supra.)

In a 2009 California case, officers asserted that the defendant offered to sell one of them cocaine, then resisted arrest and swallowed the drugs. The defendant claimed that one officer, without justification, grabbed him by the shirt and forced him to the ground, then found evidence relating to cocaine use. He requested the personnel records of that officer and another who was involved. The trial judge refused to even review the officers' personnel records for information favorable to the defense, including instances of dishonesty and falsification of police reports. The California Supreme Court agreed with the lower court's finding that the trial judge was wrong in that refusal. The judge was required to look at the files and provide any to the defense that were sufficiently helpful.

Consulting a Lawyer

If you want to know whether you have a legitimate chance at obtaining police personnel files, consult an experienced criminal defense lawyer. Your attorney can advise you about the likelihood of getting the records and the procedure involved, both of which depend on your jurisdiction.

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