Inside LADA

March 1, 2017: D.A. Lacey Revises Brady Policy

Los Angeles County District Attorney Jackie Lacey today announced revisions to her office policy regarding the disclosure of exculpatory and impeachment information about peace officers and other recurring witnesses in criminal cases under the U.S. Supreme Court’s 1963 decision in Brady v. Maryland and California law.

The re-examination of the policy was prompted by the June 2013 settlement of a lawsuit with the American Civil Liberties Union of Southern California.  The revised policy also takes into account the California Supreme Court ruling in People v. Superior Court (Johnson), issued in July 2015, and an Attorney’s General opinion, issued the following October.

The policy changes the standard for entering materials for consideration by prosecutors from “clear and convincing” to “a tendency in reason to potentially impeach, or is likely to lead to evidence to potentially impeach the testimony” of a recurrent prosecution witness.

The policy also allows the office to establish a procedure with law enforcement agencies for accepting misconduct allegations from a peace officer’s personnel file pursuant to a legally valid written policy that includes input from the affected officers’ union.

These two revisions will result in even more information being entered into what is now called the Officer and Recurrent Witness Information Tracking System (ORWITS).  ORWITS replaces the Brady Alert System, broadening its reach to include all witnesses the prosecution reasonably expects to testify in multiple independent criminal cases.

“The more potentially exculpatory or impeachment information we have about a witness, the better able we are as prosecutors to ensure that every defendant will get a fair trial,” District Attorney Lacey said. “At the same time, we also will protect the privacy rights of peace officers under the law by still requiring that a judge review information in the officer’s personnel file to determine whether it may be used to impeach the witness in the pending case.”

The policy is consistent with state law that requires prosecutors to file what is known as a Pitchess motion to gain access to potentially exculpatory information contained within an officer’s personnel file.  Under the policy, prosecutors also must seek a protective order to strictly limit the disclosure of information from a personnel file to the specific case in which the motion was made, as required by state law.

Click here to read policy.