CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, May 15, 2018

Cannon on Confidentiality and Brady Lists

Ryan Cannon has posted Reconciling Brady and Pitchess: Association for Los Angeles Deputy Sheriffs v. Superior Court, and the Future of Brady Lists (San Diego Law Review, Vol. 55, No. 3, Forthcoming) on SSRN. Here is the abstract:

In 2014, the Los Angeles County Sherriff’s Department (LASD) joined a growing number of law enforcement agencies utilizing “Brady lists;” a system by which prosecutorial agencies are notified of potential Brady/Giglio material in a police officer’s personnel file. These lists enable prosecutors to comply with their constitutional Brady disclosure obligations — to turn over all evidence material to guilt or punishment, including impeachment material. However, in 1978 California made the contents of police officer personnel files confidential with the passage of the Pitchess statutes. Since that time, California courts have wrestled with the extent of allowable disclosure under the Pitchess statutes, including whether disclosure of an officer’s name would violate Pitchess confidentiality. Following a legal challenge to the LASD “Brady list” policy by the union representing Los Angeles deputy sheriffs (ALADS), the California Court of Appeal for the Second District held that Pitchess confidentiality prevented the disclosure of names on a “Brady list” to prosecutors. This decision has, for a time, threatened the continued use of Brady lists in California and increased the potential for Brady violations by California prosecutors.
The California Supreme Court has since granted review of the case. In light of the Court’s recent promulgation of new rules mandating broad disclosure by prosecutorial agencies — as well as revelations of prosecutorial misconduct within District Attorney’s offices throughout California — the California Supreme Court should preserve the use of “Brady lists.” Disclosure of officer names to members of the prosecutorial team can, and should be, distinguished from the previously established limitations on disclosure to news outlets via California Public Records Act requests. Additionally, California should look to the federal system to craft a policy mandating disclosure by officers themselves, in order to allow for robust Brady disclosure while preserving Pitchess protections.

http://lawprofessors.typepad.com/crimprof_blog/2018/05/cannon-on-confidentiality-and-brady-lists.html

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