DA: Criminal Defense Lawyers Have Right to all Police Misconduct Records

The District Attorney’s Office in Los Angeles County has issued a directive ordering the expedited and expanded disclosure of evidence regarding police misconduct to criminal defense lawyers actively seeking to defend their clients.

Our Irvine criminal defense lawyers understand that per the new policy, prosecutors must disclose ALL evidence favorable to the defense. What’s more, they can’t rely solely on the police misconduct tracking database kept by the district attorneys office in determining what kind of information has to be disclosed.

The new rules came after the American Civil Liberties Union of Southern California, in conjunction with a number of other civil rights attorneys, filed suit against the county last year, alleging that prosecutors were improperly withholding evidence from defense teams.

The lawsuit said the practice had been ongoing for years, with prosecutors and other authorities purposely failing to disclose complaints about misconduct filed by inmates or others against deputies who were slated to be witnesses in criminal cases. The filing alleged that the number of cases identified was in the hundreds, but speculated it could possibly be in the thousands over the last 10 years.

You may wonder why a police officer’s prior record has anything to do with a case against someone else. The answer is: Everything, depending on the circumstances of the case. If the officer in question is a key witness for the state, his or her integrity is a central issue that the jury has a right to consider.

For example, let’s say you are arrested for a DUI. You refuse to submit to field sobriety tests or undergo a breathalyzer. The criminal case at hand is going to depend heavily on the testimony of the officer: His observations of why you were stopped in the first place, his account of your behavior and appearance and statements made prior to and following your arrest and more. If your defense lawyer later learns that this same officer has been disciplined within his department for lying, that goes to the very heart of your defense, which is the credibility of the primary witness testifying against you.

This case involved the standard by which prosecutors were required to disclose information to defense lawyers. Police agencies, in their internal investigations resulting in discipline, use a standard called “preponderance of the evidence.” This standard of proof requires probable accuracy or truth. It’s a lesser burden of proof than the standard of “clear and convincing evidence” that prosecutors were using when determining whether to hand misconduct complaints to defense lawyers.

The ACLU ultimately dropped its lawsuit earlier this year, when the District Attorney’s Office promised to revise its policies regarding these disclosures.

In addition to lowering its standard of proof with regard to disclosures, prosecutors must also disclose information on pending investigations into police misconduct. The new policy also explicitely states that prosecutors have to hand over any and all evidence favorable to the defense team. Previously, prosecutors had been accused of withholding certain information from defense lawyers simply on the belief that it may negatively impact the prosecutor’s chances of success at trial.

The new policy calls this practice unacceptable. (It’s also potentially grounds for a mistrial or a new trial, if it can be proven.)

The DA’s police misconduct database, known as the Brady Alert System, will still use the clear and convincing evidence standard before entering allegations into it. However, prosecutors shouldn’t limit themselves to this database in their disclosures.

Contact Houman Fakhimi trial attorney at (714) 705-6701 as soon as possible if you are arrested in Irvine.

Additional Resources

District attorney revises policy on police misconduct disclosure, June 11, 2013, By Jack Leonard, Los Angeles Times.