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Who can get access to police files in California?

Prosecutors need access to police files to find Brady material

In California, police officers have a right to keep their personnel files confidential. At the same time, all criminal prosecutors are constitutionally bound to disclose to the defendant any evidence that's reasonably likely to affect a conviction or punishment.

So: What if the defendant believes that such evidence is located in the arresting officers' personnel files? Who has the right and duty to look through those records?

In many police departments, the task is performed by the police themselves. Defense lawyers quite reasonably object that police officials have an inherent conflict of interest in choosing which information in their officers' files to flag.

The duty to disclose is assigned to prosecutors under the landmark 1963 U.S. Supreme Court decision in Brady vs. Maryland. But in California, it's not clear if, or when, prosecutors are allowed to look through police files.

Those and related questions come before the California Supreme Court in arguments set for Thursday. At issue is an effort by Daryl Lee Johnson, who was charged in San Francisco with domestic violence, to obtain access to the records of the officers who arrested him. Any evidence of past officer misconduct could bolster his defense.

A lower court explained that the police and the district attorney are already on the same team, so confidentiality of records isn't undermined when prosecutors examine them. But other courts have rejected prosecutorial access to police files absent a court order. The state's high court has to sort it out.

In doing so, the justices must certainly recognize that in order to satisfy the Brady requirement they need to grant someone, whoever it may be, meaningful and timely access to police personnel files. It would hardly serve justice to perpetuate a system in which exculpatory evidence sits unexamined in police files while prosecutors, with a duty to disclose it, can never see it.

More than half a century after the Brady ruling, it is startling that so much uncertainty remains over when, how and even whether prosecutors must disclose exculpatory information. The problem is even more vexing in California, given the interplay between Brady and strict laws and court rulings protecting officer files.

In addition, California is the only state in the union that does not complement the Brady requirement with an enforceable attorney's rule of ethics that clarifies what to turn over and when. A State Bar panel is currently considering such a rule. It wouldn't answer the sorts of questions coming before the Supreme Court this week in Johnson's case, but it would help clarify a prosecutor's constitutional obligations to criminal defendants.

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