The Criminal Docket


April  2006

Volume 1, Number 3

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Police Investigations: Here’s Something to Note

Issues: Must an officer retain all notes taken during an investigation? Is there a violation of the discovery disclosure requirement if the officer destroys the notes he or she makes of interviews conducted if those notes are used only to assist the officer in preparing a report?

Discovery Statute: Enacted in 1990 as Proposition 115, Penal Code section 1054.1 requires that the prosecution disclose to the defense certain materials and information if it is in the possession of the prosecuting agency or the prosecutor knows that it is possessed by the investigating agency. Subsection (f) states that this includes “Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial.

Case Law: People v. Coles (2006) 134 Cal App 4th 1049 rejects the contention that an officer must retain investigatory notes before criminal charges have been filed. After reviewing the Proposition 115 ballot pamphlet and the 1998 opinion of the California Attorney General (81 Ops.Cal.Atty.Gen. 397), the Court could find no requirement that the proposition required the preservation of the notes. Citing the California Supreme Court’s opinion in People v. Tillis (1998) 18 Cal 4th 284, 294, Coles concluded that Proposition 115 “expressly precludes us from ‘broadening the scope of discovery beyond that provided in the chapter or other express statutory provisions, or as mandated by the federal constitution.’” In re Gary G. (1981) 115 Cal App 3rd 629 reiterated the prosecution’s requirement to disclose favorable evidence or that which may lead to evidence favorable to the defendant. Even though such material evidence must be preserved by the prosecution and disclosed to the defendant, this does not encompass the rough interview notes taken by an investigating officer.

Three-Part Analysis: In Killian v. United States (1961) 368 U.S. 231, the defendant was convicted of perjury when he swore in an affidavit that he was not a member of the Communist Party. The FBI agents had destroyed the notes of conversations that they had with individuals acting in an undercover capacity. The United States Supreme Court remanded the case for factual findings, but noted “Almost everything is evidence of something, but that does not mean nothing can ever safely be destroyed.” (368 U.S. at 242) People v. Tierce (1985) 165 Cal App 3rd 256 concurred with Killian. In Tierce the defendant was convicted of cultivating and processing marijuana. There was a discrepancy between an officer’s in-court testimony and the notes he took when he questioned the defendant. The courts must engage in a three-part analysis to determine whether the defendant’s due process rights have been abrogated by the destruction of the officer’s notes: First, were the notes made for the purpose of refreshing the officer’s recollection in transferring the information into a written report? Second, did the officer act in good faith in destroying the notes? Third, did the officer act “in accordance with the normal procedure of the governmental unit” in destroying the notes? (165 Cal App 3rd at 264) The absence of one of these factors does not necessarily guarantee the defendant a new trial.

Burden is on Defendant:  In determining whether evidence should be excluded, People v. Angeles (1985) 172 Cal App 3rd 1203 and People v. Garcia (1986) 183 Cal App 3rd 335 require that courts use established federal law; the defendant must show that his constitutional rights were violated. Tierce said that the burden is on the defendant to show that the error was not harmless and that the destruction of the notes actually harmed the defendant. Coles (134 Cal App 4th at 1055-6), People v. Gonzales (1989) 209 Cal App 3rd 1228, and the United States Supreme Court in California v. Trombetta (1984, 467 U.S. 479 at 489) require that the defendant demonstrate that prior to the evidence being destroyed, it was apparent that the evidence possessed an exculpatory value and the defendant is “unable to obtain comparable evidence by other reasonably available means.”

If the notes have been preserved and are available, and if they do not include attorney work product, they are discoverable, even if the notes have subsequently been reduced to a written report. This, however, is a different issue than the threshold question as to whether the notes even need to be preserved. (Thompson v. Superior Court (1997, 53 Cal App 4th 480)


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