March 6, 2008
CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE

REPORT AND RECOMMENDATIONS ON COMPLIANCE WITH THE
PROSECUTORIAL DUTY TO DISCLOSE EXCULPATORY EVIDENCE.
Introduction.
The Commission’s Report and Recommendations on Professional
Responsibility and Accountability of Prosecutors and Defense Lawyers, issued
October 18, 2007, noted that the failure to disclose exculpatory evidence was a
leading ground for reversal of California criminal convictions based on claims of
prosecutorial misconduct during the ten year period ending December 31, 2006.
The duty to disclose exculpatory evidence has been recognized as a constitutional
imperative since 1963, when the United States Supreme Court decided the case of
Brady v. Maryland, 373 U.S. 83 (1963). The obligation is commonly referred to as
the “Brady” obligation or duty.
Prosecutorial compliance with the Brady duty includes the duty to disclose
materials relevant to impeach prosecution witnesses, Giglio v. United States, 405
U.S. 150 (1972), and to materials that are in the possession or control of
investigating law enforcement agencies, placing the onus upon prosecutors to
insure that police or other investigative agencies have fully reported on the

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existence of potentially exculpatory evidence. Kyles v. Whitley, 514 U.S. 419
(1995). A potential source of non-compliance is that the Brady duty is limited to
“material” exculpatory evidence. Prosecutors may not fully realize the ways in
which potentially exculpatory evidence can be put to material use by criminal
defense lawyers.
The prosecutor’s Brady duty to disclose exculpatory evidence under the due
process clause of the United States constitution is wholly independent of any
statutory scheme. It is self-executing and needs no statutory support to be
effective. Alford v. Superior Court, 29 Cal.4th 1033, 1046 n.6 (2003).
But the issue of access to records of misconduct complaints against police officers,
which may be relevant to challenge their credibility in a criminal case, is closely
related to and frequently overlaps with the Brady duty. Under California law, upon
a showing of good cause and materiality, a court will review an officer’s personnel
file to determine whether it contains any information that should be disclosed to
the defendant. Pitchess v. Superior Court, 11 Cal.3d 531 (1974); California
Evidence Code §§ 1043-45; California Penal Code §§ 832.7-832.8. Such requests
are commonly referred to as “Pitchess Motions.” Pitchess requirements limit the
access of both prosecutors and defense lawyers to police personnel records, and
limit the disclosure of such records.

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The Rampart Task Force Recommendations.
In 1999, the exposure of a pattern of false arrests, perjured testimony
and the planting of evidence by L.A.P.D. officers assigned to the Crash Unit
of the Department’s Rampart Division led the Los Angeles District Attorney
[LADA] to dismiss nearly 100 cases in which felony convictions had been
obtained, many of them on pleas of guilty. In 2001, the Los Angeles County
Bar Association convened a special Rampart Task Force to make
recommendations relating to all parts of the justice system that could prevent
this type of misconduct in the future. 1 Their Report, issued in April, 2003, 2
included a number of key recommendations addressing Brady and Pitchess
obligations and compliance.
In anticipation of the public hearing convened by our Commission, we
asked witnesses to address whether existing office policies and procedures
implemented by District Attorney Offices and Public Defender Offices were
adequate to ensure full compliance by all deputies with discovery
obligations, and whether any legislative or administrative changes were
needed to assure full compliance with the requirements for disclosure of

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The Task Force, chaired by U.S. District Judge Audrey Collins, a former state prosecutor, included former
prosecutors, public defenders, private practitioners, judges and academics.
2

Los Angeles County Bar Association Task Force on the State Criminal Justice System, A Critical
Analysis of Lessons Learned: Recommendations for Improving the California Criminal Justice System in
the Wake of the Rampart Scandal, April, 2003.

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evidence. We also asked whether four specific recommendations of the
Rampart Task Force should be implemented on a statewide basis:
2.1 To implement prosecutors’ responsibility for obtaining and
producing Brady material, prosecuting agencies should establish
procedures to gather Brady material in a systematic fashion from all
appropriate sources. To assist prosecutors in the fulfillment of their
obligations, governmental agencies should establish procedures to
gather all Brady material and to provide that material to prosecuting
agencies in a timely manner. Other options for obtaining Brady
material should be utilized by prosecutors before resorting to Pitchess
motions.
2.2 Brady . . . material should be collected in a central database under
the control of the prosecuting agency.
2.3 Production of Brady material to the defense must be timely. In
particular, Brady material tending to establish factual innocence or an
affirmative defense should be revealed before a guilty plea is entered.
2.4 In felony cases, prosecutors should be required to execute a
declaration affirming that inquiries have been made of all appropriate
sources and that all Brady material obtained has been reviewed and
disclosed.

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We also invited written submissions to address the question whether the
Rampart Task Force’s detailed recommendations on the collection and
dissemination of Pitchess material should be implemented on a statewide
basis.
The Commission received thoughtful responses to these questions,
both in the form of written submissions 3 and oral testimony. 4 Based upon
these submissions, the Commission is in agreement that statewide legislation
is not the most appropriate vehicle to assure full compliance with Brady and
Pitchess obligations. The size and organization of prosecutors’ offices
throughout the State of California varies substantially, and assuring full
compliance with these obligations is best addressed by the adoption of clear
administrative policies within each office that are available for public
scrutiny. Such policies should describe the standard to be used in
determining whether information should be disclosed, and should require the
maintenance of a “Brady List,” identifying witnesses as to whom Brady
material exists.

3

The responses of the California District Attorneys Association, the Los Angeles County District Attorney,
and the Ventura County District Attorney are available on the Commission’s website, www.ccfaj.org.

4

Santa Clara County District Attorney Dolores Carr testified on behalf of the California District Attorneys
Association; Deputy District Attorney Lael Rubin testified on behalf of the Los Angeles County District
Attorney’s Office; and Special Assistant District Attorney Michael Schwartz testified on behalf of the
Ventura County District Attorney’s Office.

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District Attorney Brady Policies.
The Commission has examined the publicly available office policies
of the Los Angeles County District Attorney’s Office, the Ventura County
District Attorney’s Office, and the Santa Clara County District Attorney’s
Office. The response of the California District Attorneys Association
[CDAA] notes that “other offices . . . have opted not to have a specific
policy, but to require their deputies to follow the statutory and case law on
these subjects.” 5 The Commission believes that compliance with Brady
obligations should not be left up to each individual deputy’s own
interpretation of statutory and case law. A written Office Policy and training
regarding this policy can help insure that all prosecutors will fully comply
with their Brady obligations.
In accordance with the Rampart Task Force recommendations,
procedures should be established to gather Brady material in a systematic
fashion from all appropriate sources, consistent with the requirements of
Pitchess. The material should be identified and a record should be kept of
when and how it was delivered to the defense. Material determined to be
relevant to factual innocence or an affirmative defense should be disclosed
as soon as that determination is made, and prior to entry of a guilty plea.
5

California District Attorneys Association, Position Statement of the California District Attorneys
Association Regarding “Focus Questions for Hearing on Professional Responsibility Issues” of the
California Commission on Fair Administration of Justice, July 11, 2007, at p. 13.

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When there is information about a witness that may be subject to disclosure
requirements under Brady, the identity of that witness should be maintained
on a “Brady List” for use in other cases. The Commission does not believe
that a formal declaration of full Brady compliance needs to be signed by the
prosecutor, but prosecutors should be ready to offer assurances to both the
defense and the court that inquiries have been made of all appropriate
sources, and all Brady material received has been reviewed and disclosed in
accordance with all legal obligations.
The CDAA finds most of these recommendations appropriate.
CDAA, however, suggests that existing policies and procedures are adequate
to ensure full compliance, and that “in establishing policies for Brady
databases, one size does not fit all. Each prosecutor’s office should design
and implement procedures to deal with Brady evidence that works for that
jurisdiction.”
The Commission does not suggest a uniform policy and procedure for
every District Attorney’s Office in the State of California. We are in full
agreement that each prosecutor’s office should design and implement
procedures that work for that jurisdiction. But the Commission strongly
believes that public accountability requires such policies and procedures be
in written form and available for public scrutiny. Consultation with law

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enforcement agencies, peace officer associations representing law
enforcement officers, and Public Defender Offices will be helpful in
formulating effective policies that are widely accepted and understood. In
many counties, such policies are already the product of such collaboration.
The process of devising a written policy frequently exposes friction
points that can be directly addressed and eliminated. A written policy also
provides a basis for consistent training of personnel and evaluation of their
compliance. Therefore, the Commission recommends that every District
Attorney’s Office in California formulate and disseminate a written Office
Policy to govern Brady compliance, and that this policy provide for
gathering Brady material in a systematic fashion from all appropriate
sources, tracking the delivery of the material, and disclosing material
determined to be relevant in a manner that is consistent with Pitchess. The
policy should require that material relevant to factual innocence or an
affirmative defense be disclosed as soon as that determination is made, and
prior to entry of a guilty plea. Policies should be regularly reviewed and
updated to reflect evolving changes in judicial interpretation of the Brady
duty and Pitchess limitations.

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The Limitations of Pitchess.
With respect to the Rampart recommendations regarding Pitchess
material, both the CDAA and the LADA point out that some of these
recommendations are precluded by the subsequent ruling of the California
Supreme Court in Alford v. Superior Court, 29 Cal.4th 1033 (2003). The
Court held that protective orders issued in compliance with California
Evidence Code Section 1045(e) must require that material disclosed
pursuant to a defense Pitchess Motion may only be utilized for the case in
which the motion was made, and that the prosecution has no automatic right
to police personnel records that are disclosed to the defense pursuant to a
Pitchess Motion. The inclusion of Pitchess material in a database for future
disclosure does not appear to be feasible under the strictures of Alford. But
the maintenance of an office “Brady List,” identifying particular officers
with credibility problems, is not precluded by Alford if information obtained
from a Pitchess motion is not disclosed, and such a list can provide a useful
tool in alerting prosecutors to the need to further investigate the need for
Brady disclosures, including a subsequent additional Pitchess motion. The
recent ruling of the California Supreme Court in Chambers v. Superior
Court, 42 Cal.4th 673 (2007) may permit defense counsel and defender
offices to maintain a list of the names of officers as to whom Pitchess

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motions have been granted, so that when another Pitchess motion in a
different case is granted as to the same officer, counsel can access derivative
information in the previous case.
The system utilized by Ventura County provides a useful model.
Complaints regarding the credibility of a police officer are evaluated as they
are received, with an opportunity for the officer and the employing law
enforcement agency to provide input. If the Office concludes that material
evidence exists regarding an officer’s credibility, the officer’s name is
placed on a “Brady List.” Past cases in which the officer testified are
researched and identified, to determine if the defense should be advised of
the new information. In future cases in which the officer will be a
prosecution witness, the prosecutor is required to consult with a designated
supervisor as to how to proceed. Normally, the officer is not called as a
witness, or the Brady information is disclosed. If there is doubt as to
whether the information is material, an in camera evaluation for a judicial
determination is sought.
The Commission is in agreement with Recommendation 6.2 of the
Rampart Task Force, that a database organized and maintained by the
prosecutor’s office should be created pursuant to procedures and standards
established by that office and containing the names of police officers and

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other recurring witnesses for whom Brady material exists. Case-specific
Pitchess Motions can then be filed by either the prosecution or the defense,
or both. Again, we are aware that one size does not fit all. But we cannot
accept the suggestion that such procedures are not necessarily appropriate
for smaller jurisdictions where officers with credibility problems are more
readily known to those in the legal community. Compliance with Brady
requirements is too important to rely upon courthouse gossip as a substitute
for systematic procedures.

Standards for “Brady List” Determinations.
The Rampart Report recommended a standard of reasonable suspicion
for information questioning a witness’ credibility, before that witness is put
on a “Brady List” to alert prosecutors to potential Brady problems. This
appears consistent with the “substantial information” standard employed by
the Ventura County and Santa Clara County District Attorneys’ policies:
“Substantial information is facially credible information that might
reasonably be deemed to have undermined confidence in a later
conviction in which the law enforcement employee is a material
witness, and is not based on mere rumor, unverifiable hearsay, or a
simple and irresolvable conflict in testimony about an event.”

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The standard adopted by the Los Angeles County District Attorney requires
“clear and convincing evidence”:
“The decision to include such material (concerning a peace officer or
governmentally employed expert witness) will be made using a
standard of clear and convincing evidence which is higher than a
preponderance of evidence but less than beyond a reasonable doubt.
In other words, without clear and convincing evidence that the
potential impeachment evidence is reliable and credible, it will not be
included in the alert system.”
While a "Brady List" is not a public record, 6 prosecutors must be cognizant
that a decision to place an officer on the list due to a "credibility problem"
can have a damaging impact upon the officer’s career and reputation, and
even result in termination. While established instances of dishonesty or
moral turpitude must be disclosed, “preliminary, challenged, or speculative
information” does not come within Brady, and should not result in placing
an officer on a Brady list. United States v. Agurs, 427 U.S. 97, 109 n.16
(1976). Where evidence challenging an officer’s credibility is disputed, the
existence of a dispute itself should not exempt the material from the Brady
requirement of disclosure. The dispute, of course, must be resolved.
6

Coronado Police Officers Association v. Carroll, 106 Cal. App. 4th 1001 (2003).

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Whether the resolution requires “facial credibility” or “clear and convincing
evidence” is not for this Commission to decide. The suggestion has been
made that in actual practice, there is little difference between the standard
utilized in Los Angeles County and the standard applied in Ventura and
Santa Clara Counties. Others disagree. The disagreement itself underscores
the importance of defining the standard in writing and making it publicly
available.
Brady policies should include an opportunity for the affected officer
and the employing law enforcement agency to provide input before a
determination is made to include an officer’s name on a “Brady List. The
officer and employing agency should also be given an opportunity to seek
review of the determination by senior management of the District Attorney’s
Office. The policies of Ventura and Santa Barbara Counties include such
provisions. The dramatic effect a Brady determination may have upon both
the officer and the employing department requires fundamental fairness in
making the determination. Receiving this input will also assist the District
Attorney in understanding and evaluating the evidence. The policies must
provide for expedited procedure for cases in which immediate disclosure is
required, such as the discovery of information during trial.

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The Commission believes all California District Attorneys should
heed the warnings from the U.S. Supreme Court that “the prudent prosecutor
will resolve doubtful questions in favor of disclosure,” United States v.
Agurs, 427 U.S. 97, 108 (1976) and that prosecutors should avoid “tacking
too close to the wind.” Kyles v. Whitley, 514 U.S. 419, 439 (1995).
The Need for Training.
Written policies and procedures alone, of course, will not suffice if the
policies and procedures are not part of the training of the deputies who will
be expected to follow them. As the policies and procedures are interpreted
and applied to specific cases, examples will be available to further the
understanding of deputies through training programs. The Commission
learned of an innovative approach to training regarding Brady issues
recently undertaken in Santa Clara County. The Santa Clara County Bar
Association sponsored a joint training, for both deputy public defenders and
deputy district attorneys at the same time. Such joint training programs can
be used to promote a collaborative and cooperative approach to troublesome
discovery issues.
There is no question but that California prosecutors generally take
their constitutional obligations to disclose exculpatory evidence seriously,
and many District Attorney Offices have devoted considerable time and

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resources to the drafting, promulgation and implementation of excellent
written policies. In recommending that all California District Attorneys
follow their example, the Commission is hopeful that no legislative action
will be necessary to assure full compliance with Brady/Pitchess obligations.

RECOMMENDATIONS
1. The California Commission on the Fair Administration of Justice
recommends that all District Attorney Offices in California formulate
and disseminate a written Office Policy to govern Brady compliance,
and that this policy provide for gathering Brady material in a systematic
fashion from all appropriate sources in a manner that is consistent with
Pitchess, tracking the delivery of the material, and disclosing material
determined to be relevant. The policy should provide that material
relevant to factual innocence or an affirmative defense be disclosed as
soon as that determination is made, and prior to entry of a guilty plea.

2. The California Commission on the Fair Administration of Justice
recommends that a list organized and maintained by each District
Attorney’s office should be created pursuant to procedures and
standards established by that office, in consultation with law
enforcement agencies, peace officer associations representing law
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enforcement officers, and Public Defender Offices. The list should
contain the names of police officers and other recurring witnesses as to
whom there is information that may be subject to disclosure
requirements under Brady. This would include all facially credible
information that might reasonably be deemed to undermine confidence
in a conviction in which the law enforcement employee is a material
witness, and is not based upon mere rumor, unverifiable hearsay, or an
irresolvable conflict in testimony about an event.

3. The California Commission on the Fair Administration of Justice
recommends that training programs be conducted to assure that all
deputy district attorneys understand and apply office policies and
procedures with regard to Brady disclosure and Pitchess Motions. If
feasible, joint training programs should be organized to include
prosecutors, public defenders and other criminal defense lawyers.

4. The California Commission on the Fair Administration of Justice
recommends that all police and other investigative agencies formulate
policies and procedures to systematically collect any potential Brady

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material and, consistent with the statutory protections for personnel
records, promptly deliver it to prosecutors.

5. The California Commission on the Fair Administration of Justice
recommends that training programs for peace officers include full
treatment of the obligation to disclose Brady material to the prosecutor.

Respectfully submitted,
California Commission on the Fair Administration of Justice:
John K. Van de Kamp, Chair
Jon Streeter, Vice Chair
Diane Bellas, Alameda County Public Defender
Harold O. Boscovich, Jr., Danville
Chief William Bratton, Los Angeles Police Department (Gerald Chaleff)
Jerry Brown, California Attorney General (Janet Gaard)
Ron Cottingham, Peace Officers Research Association of California
Glen Craig, Sacramento
Chief Pete Dunbar, Pleasant Hill Police Department
Jim Fox, San Mateo County District Attorney
Rabbi Allen Freehling, Los Angeles
Michael Hersek, California State Public Defender
Sheriff Curtis Hill, San Benito County
Prof. Bill Hing, University of California at Davis
Michael P. Judge, Los Angeles County Public Defender
George Kennedy, Santa Clara County District Attorney
Michael Laurence, Habeas Corpus Resource Center
Alejandro Mayorkas, Los Angeles
Judge John Moulds, Sacramento
Prof. Cookie Ridolfi, Santa Clara University School of Law
Douglas Ring, Santa Monica
Greg Totten, Ventura County District Attorney

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Gerald F. Uelmen, Executive Director
Chris Boscia, Executive Assistant
California Commission on the Fair Administration of Justice
900 Lafayette St., Suite 608, Santa Clara, California 95050
Telephone 408-554-5002; FAX 408-554-5026
Website: http://www.ccfaj.org.

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