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Discovery of Police Records

Driving under the influence (DUI) prosecutions usual rely heavily on the testimony and credibility of police officer witnesses.  As a criminal defendant, the United States Constitution guarantees you access to all evidence in the possession of law enforcement that may help you in your defense.  This is called “Brady Material”, after the case of Brady v. Maryland.  This rule includes not only information that the prosecutor has, but also information that is in his constructive possession.  Information known by the police agency is considered to be within the constructive possession of the prosecutor, even if not actually known by the prosecutor.  If the police officer who arrested you knows that a witness for the prosecution has lied to him in the past he must disclose it to you (or your attorney), even if you do not ask for it. 

The glaring exception to this discovery requirement is information that may be contained in the police officer’s own personnel file.  Often, these files contain past complaints about the officer,  or incidents of misconduct, witness tampering, or evidence fabrication.  This information would be vital to you attorney for discrediting the officer’s testimony at trial. 

Unlike other Brady material, you must first get a court order before you can access the information in an officer’s personnel record.  This is accomplished by what is called a Pitchess motion.  First, you must demonstrate to the Court that there are specific facts in your case that would make the officer’s prior history material.  In other words, what is it about your case that leads you to believe that the officer’s testimony should not be believed?  The Court will have an open hearing to decide if there are such specific facts.  If he finds that there are, he will review the officer’s personnel file in private, where he will decide whether there is relevant information in the file that must be disclosed to you. 

As we all know, police officers are as human as the rest of us.  As such, they are just as capable of stretching the truth (and out-and-out lying) as everyone else.  It is vital that the jury learns all information bearing on the officer’s testimony if they are expected to make a fair determination.  An experienced DUI attorney should know when and how to go after this information on your behalf.