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There's a sneaking suspicion among many people charged with a crime that the cops who detained, arrested, or interrogated them are "dirty." Sadly, this notion isn't always wrong. And evidence that an officer has lied, falsified evidence or reports, or previously assaulted citizens could be useful in a criminal trial. But how can defendants -- and their attorneys -- find out whether an officer has been accused of or committed misconduct in the past?
Obviously, police departments aren't too eager to share information regarding their so-called bad apples. But some new laws may not give them a choice.
Back and Forth Legal Standard
In 2014, a California appeals court ruled that prosecutors must examine police personnel files for evidence of misconduct, and hand over anything that may help the defense in a criminal case. That includes records of any officer conduct that would cast doubt on their credibility. But a different court ruling in 2017 scaled that requirement back based on officer confidentiality issues, and restricted disclosure of police officer records without judicial authorization. That placed the burden back on defendants and their counsel to request such evidence, and left it up to the judge to decide if the request would be granted.
Then a new state law removed those privacy protections, making investigations and reports related to an officer's on-the-job lies, sexual assault, or serious or deadly use of force subject to the state's Public Records Act. The law went into effect January 1st of this year, but the battle over whether the new law applies to old records rages on. "In March, a judge ordered the San Francisco Police Department to release its records," according to the San Francisco Chronicle. "A few days later, a district appeals court in San Francisco ruled that the law could be applied retroactively." Even so, few records have been released thus far, with the San Francisco Police Department citing "extremely voluminous" requests.
Yes or No Answers
As you can see, obtaining evidence of officer misconduct can be legally and logistically difficult. And many state and local laws regarding police personnel records are not as permissive as San Francisco's and California's. Even if prosecutors nationwide are required to share exculpatory evidence that could aid in someone's defense, not all jurisdictions include police personnel records, or even evidence of officer misconduct in unrelated cases, in that definition.
If you've been charged with a crime, contact an experienced criminal defense attorney who will know if and how to get access to police personnel records.