Principles for Public Safety Employment

the prosecutor fulfilled his Brady obligation when he informed the defendant that the Department had informed him that the personnel records of the officers in question may contain Brady material, and that the officers were important witnesses. This decision reversed the ruling of the Court of Appeal, which held that the prosecutor must be allowed to access and review peace officer personnel records for compliance with Brady without using the Pitchess procedure, because the prosecutor’s office and the police department are part of one “prosecution team.” In 2019, the California Supreme Court held that a law enforcement agency may make “Brady alerts” to prosecutors, revealing the identities of officers who may have relevant exonerating or impeaching materials in their confidential personnel files) without a Pitchess motion. 460 In a 2017 case, the Court of Appeal held that a criminal defendant can satisfy the “good cause” requirement by showing only that the prosecution has alerted him that the personnel records of a peace officer witness contain Brady material and explaining how the officer’s credibility might be relevant to the proceeding. 461 5. T HE I MPACT OF B RADY ON Y OUR D ECISION -M AKING Regardless of the procedures that are followed, Brady materials contained in peace officer personnel records may ultimately be disclosed. Therefore, it must be remembered when imposing discipline upon public safety officers (particularly in cases of dishonesty or conduct involving moral turpitude) that the information will be part of the officer’s personnel file for at least two years and perhaps significantly longer. Moreover, the ability of that officer to testify competently in civil and criminal proceedings may be negatively impacted, limiting his or her ability to perform an essential function of his or her job. Courts have specifically held that an agency may consider a peace officer’s future inability to testify credibly in court as a basis for his termination. 462 Please see Section 4 of this workbook for more information on dishonesty as a basis for discipline for peace officers. Government Code section 3305.5 prohibits discipline or denial of promotion solely because an officer has been placed on a Brady list. It does not prohibit an agency from taking action against the officer for the underlying conduct that caused the officer to be placed on the Brady list. The fact that the officer has been placed on a Brady list may only be introduced into evidence if the hearing officer or other administrative appeal tribunal finds that the underlying conduct is proven and that the officer will be disciplined for the underlying conduct. However, the Court of Appeal in Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriff’s Department) held that it is not a “punitive action” under section 3305.5 of the POBR to transfer an officer, or restrict his or her duties, to address his or her reduced credibility as a result of being on the Brady list. 463

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