What Is a Pitchess Motion in California? Evidence Code 1043 Explained
The short answer: a Pitchess motion is a request, filed under Evidence Code section 1043, asking the judge to review a police officer's confidential personnel file and disclose prior complaints that are relevant to your defense, such as excessive force, false reports, planted evidence, or racial bias. The motion takes its name from Pitchess v. Superior Court (1974) 11 Cal.3d 531, and the showing required is deliberately low: a declaration from your attorney describing a plausible scenario of officer misconduct that would be a defense to the charge. If the judge finds good cause, the court reviews the file in private and turns over the names of prior complainants so the defense can investigate. For a defendant in Riverside, San Bernardino, Victorville, or Los Angeles facing a resisting arrest, battery on an officer, DUI, or drug possession charge that rests on one officer's account, the Pitchess motion is often the most important motion in the case. Gramling Law Group files these motions across Southern California.
Why Police Personnel Files Are Confidential
The statutory scheme. Penal Code section 832.7 makes peace officer personnel records confidential and bars their disclosure in a criminal or civil case except through the discovery procedure in Evidence Code section 1043 and Evidence Code section 1045. Penal Code section 832.8 defines personnel records to include complaints and investigations of complaints about how the officer performed duties. Penal Code section 832.5 requires every agency to maintain a procedure for citizen complaints and to retain them for at least five years. The Legislature created this system after Pitchess to balance an officer's privacy against a defendant's right to a fair trial.
What became public after 2019. Senate Bill 1421 and later Senate Bill 16 amended Penal Code section 832.7, subdivision (b), to make certain records public without a Pitchess motion: officer-involved shootings, uses of force causing great bodily injury, sustained findings of sexual assault, sustained findings of dishonesty, and, after the later amendment, sustained findings of unreasonable force, failure to intervene, bias, and unlawful arrests or searches. Those records can be requested under the Public Records Act from the Riverside County Sheriff's Department, the San Bernardino County Sheriff's Department, the Los Angeles Police Department, or any city police department. A Pitchess motion is still required for everything else, including complaints that were not sustained, which are often the most useful for impeachment.
When a Pitchess Motion Makes Sense
Resisting arrest and battery on an officer. The most common Pitchess case is a charge under Penal Code section 148 or Penal Code section 243, subdivision (b), where the defendant says the officer used excessive force and the officer says the defendant resisted. A prior complaint that the same officer used excessive force and then wrote a resisting charge to cover it is powerful impeachment. Our article on resisting arrest under Penal Code section 148 explains why the lawfulness of the officer's conduct is an element of that charge, which makes the officer's history directly relevant.
Drug cases with a disputed search or planted evidence. When a client in Hesperia or Moreno Valley says the deputy found nothing in the car and the report says a baggie was in the center console, a Pitchess motion seeking complaints of fabricated evidence or false reports is the way to test the officer's credibility. The motion is usually filed alongside a suppression motion under Penal Code section 1538.5; see our guide on 1538.5 motions and our article on drug possession under Health and Safety Code section 11350 and 11377.
DUI cases built on the officer's observations. A DUI under Vehicle Code section 23152, subdivision (a), is proved largely through the officer's description of driving, odor, speech, and field sobriety tests. When the body camera does not match the report, a Pitchess motion for prior complaints of false or exaggerated reports can support cross-examination at the DMV hearing and at trial. See our guides on fighting a DUI in Riverside County and the DMV hearing after a DUI.
Domestic violence cases with a disputed statement. In a corporal injury case under Penal Code section 273.5 where the officer's report attributes a statement to you or to the alleged victim that neither of you made, prior complaints of misreporting statements are relevant. Our article on being falsely accused of domestic violence discusses the other tools in those cases.
Racial profiling and biased policing. The California Racial Justice Act, Penal Code section 745, provides its own discovery mechanism for evidence of bias, and a Pitchess motion seeking complaints of racial bias against the stopping officer can be filed alongside it. The two procedures have different standards, so the attorney usually files both.
The Good Cause Standard
A plausible scenario, not a probable one. Evidence Code section 1043, subdivision (b), requires a written motion, notice to the agency that holds the records, and an affidavit showing good cause for the discovery, including the materiality of the records to the subject matter of the case and a reasonable belief that the agency has the records. In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, the California Supreme Court described this as a relatively low threshold. In Warrick v. Superior Court (2005) 35 Cal.4th 1011, the court held that the defense need only present a specific factual scenario of officer misconduct that is plausible when read in light of the police report and other documents, and that the scenario need not be persuasive or even credible, only internally consistent and supportive of a defense.
What the declaration must say. The attorney's declaration, which can be made on information and belief, has to describe what actually happened from the defense perspective in enough detail that the judge can see why the officer's history matters. "The officer is lying" is not enough. "The officer struck the defendant with a flashlight while he was on the ground with his hands behind his back, and then wrote that the defendant swung at him, and the defendant denies swinging" is enough under Warrick, because it describes a specific scenario in which the officer used excessive force and falsified a report to justify it.
Excessive force cases need the police report. Evidence Code section 1046 requires that a Pitchess motion based on excessive force during an arrest include a copy of the police report. In practice, the defense attaches the arrest report in every Pitchess motion, because the Warrick standard is measured against it.
The categories must match the defense. The judge limits disclosure to complaints that are relevant to the scenario described. A motion in an excessive force case gets excessive force complaints, and may get false report complaints if the declaration ties them together, but it will not get complaints of unrelated misconduct. Drafting the categories too narrowly loses useful material; drafting them too broadly invites the City Attorney or County Counsel to argue the motion is a fishing expedition.
How the Hearing Works
Notice and opposition. The motion is served on the prosecutor and on the agency that holds the records, which in a Riverside County Sheriff's case is County Counsel and in a Los Angeles Police Department case is the City Attorney. The agency, not the District Attorney, is the real opposing party. Service must comply with the notice period in the Code of Civil Procedure for written motions, which is generally sixteen court days before the hearing, and agencies in Riverside and San Bernardino County routinely object to short notice.
The in camera review. If the court finds good cause, Evidence Code section 1045 requires the judge to review the records in chambers, outside the presence of everyone except the custodian of records and anyone the custodian is entitled to have present. In People v. Mooc (2001) 26 Cal.4th 1216, the California Supreme Court held that the custodian must bring all potentially responsive documents to the court, that the custodian must describe under oath what was brought and what was withheld, and that the court must make a record sufficient for appellate review. The judge, not the custodian, decides what is relevant.
What gets disclosed. The usual disclosure is not the complaint itself. Under People v. Samayoa (1997) 15 Cal.4th 795 and the cases that follow it, the court ordinarily discloses the name, address, and telephone number of each complainant and witness, and the date of the incident, so the defense investigator can contact them. The defense then interviews those witnesses and decides whether to call them. Evidence Code section 1045 also allows the court to exclude certain older complaints and the conclusions of any officer who investigated a complaint, and to impose a protective order limiting use of the information to the pending case, which Alford v. Superior Court (2003) 29 Cal.4th 1033 confirmed.
Courthouse practice. At the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles, and the Central Justice Center in Santa Ana, Pitchess motions are heard in the trial department or a designated law and motion department, and the in camera review is often conducted the same day. Each court has its own scheduling practice for the custodian's appearance; confirm the current procedure on the court's website or with the clerk.
Pitchess and Brady: Two Different Obligations
The prosecutor's duty. Under Brady v. Maryland (1963) 373 U.S. 83, the prosecution must disclose evidence favorable to the defense that is material to guilt or punishment, including evidence that impeaches a prosecution witness. In People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, the California Supreme Court held that the prosecution does not have direct access to confidential personnel files and satisfies its Brady obligation by telling the defense that the file may contain exculpatory material, after which the defense files a Pitchess motion. In Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, the court held that a law enforcement agency may share the names of officers on its internal Brady list with prosecutors in pending cases.
Why both matter. A Brady notice from the District Attorney that an officer is on the agency's Brady list is a strong basis for a Pitchess motion and should be followed with one immediately. Conversely, the absence of a Brady notice does not mean the file is clean, because not every complaint is sustained and unsustained complaints are generally not on Brady lists. The defense attorney should file a Pitchess motion whenever the case turns on the officer's credibility, and should also make a written request for Brady material under Penal Code section 1054.1 and Penal Code section 1054.5.
What Happens After Disclosure
Investigation. The defense investigator contacts the complainants, obtains their accounts, and determines whether they are willing to testify. Prior incidents that resemble your case are admissible under Evidence Code section 1101, subdivision (b), for purposes such as intent, plan, or absence of mistake, subject to the court's discretion under Evidence Code section 352, and prior false statements are admissible to impeach the officer under Evidence Code section 780.
Leverage before trial. A disclosed history of complaints changes plea negotiations. A resisting arrest charge that the District Attorney was treating as a routine misdemeanor often becomes a dismissal, a diversion under Penal Code section 1001.95, or an infraction when the officer's file shows prior excessive force complaints and witnesses willing to testify. Our articles on what makes a criminal case weak and how to get criminal charges dismissed cover how that pressure is applied.
If the motion is denied. The denial of a Pitchess motion can be reviewed by writ before trial or on appeal after conviction. In People v. Gaines (2009) 46 Cal.4th 172, the California Supreme Court held that when a trial court wrongly denies a Pitchess motion, the remedy is a conditional reversal with a remand for the in camera review, and the conviction is reinstated only if the review shows no discoverable material or no prejudice.
Common Mistakes With Pitchess Motions
Filing too late. The motion requires notice to the agency, a hearing, an in camera review, and then an investigation of the disclosed witnesses. Filing it the week before trial means a continuance or a waiver. In a misdemeanor case with a speedy trial deadline under Penal Code section 1382, the motion should be filed shortly after the pretrial conference, which we describe in our article on the pretrial conference.
A generic declaration. The Warrick standard is low but it is not nothing. A declaration that recites the elements without a factual scenario tied to the police report is routinely denied at the Riverside Hall of Justice and the San Bernardino Justice Center, and the denial is affirmed because the declaration did not describe a specific scenario.
Forgetting the body camera. Since most agencies in Southern California now record arrests, the Pitchess declaration should be drafted after counsel has watched the body camera footage. A scenario that the video contradicts is not plausible under Warrick, and a scenario the video supports is nearly impossible to deny.
Talking to the officer or the agency yourself. A defendant who calls the Hesperia or Moreno Valley station to complain about the officer creates a recorded statement the District Attorney will use. Complaints should be filed through counsel, and the defendant should follow our guidance on what not to say to police.
Frequently Asked Questions
What is a Pitchess motion?
A motion to discover complaints in a police officer's personnel file. It is filed under Evidence Code section 1043, named after Pitchess v. Superior Court (1974) 11 Cal.3d 531, and asks the judge to review the file in chambers and disclose prior complaints relevant to the defense, such as excessive force, false reports, or bias. The officer's personnel records are otherwise confidential under Penal Code section 832.7.
What do I have to show to win a Pitchess motion?
Good cause, which is a low bar. Under Warrick v. Superior Court (2005) 35 Cal.4th 1011, the defense attorney's declaration must describe a specific, plausible factual scenario of officer misconduct that would support a defense, measured against the police report. The scenario does not have to be persuasive or corroborated, only internally consistent and plausible.
Will I get to see the officer's whole personnel file?
No. The judge reviews the file privately under Evidence Code section 1045 with the custodian of records present, following the procedure in People v. Mooc (2001) 26 Cal.4th 1216, and ordinarily discloses only the names and contact information of complainants and witnesses on relevant incidents. The defense then investigates those incidents on its own, usually under a protective order.
Is a Pitchess motion the same as a Brady request?
No, they are complementary. Brady v. Maryland (1963) 373 U.S. 83 obligates the prosecutor to disclose favorable evidence it knows about, and under People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 the prosecutor meets that duty for personnel files by notifying the defense, which then files a Pitchess motion. A defense attorney should make a written Brady request under Penal Code section 1054.1 and file a Pitchess motion in any case that turns on an officer's credibility.
Can I file a Pitchess motion in a misdemeanor case?
Yes. Pitchess motions are filed in misdemeanor cases such as resisting arrest under Penal Code section 148, battery on an officer under Penal Code section 243, subdivision (b), and DUI under Vehicle Code section 23152 at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, and Los Angeles County courthouses. The motion must be filed early enough to complete the hearing and the investigation before the speedy trial deadline under Penal Code section 1382.
How long does a Pitchess motion take?
Usually four to eight weeks from filing to disclosure, depending on the court. The agency is entitled to the notice period for written motions, the court sets a hearing, and if good cause is found the in camera review is often conducted the same day or at a continued date when the custodian appears. The defense investigation of the disclosed complainants adds more time, which is why the motion should be filed early in the case.
Gramling Law Group defends resisting arrest, battery on an officer, DUI, drug, and domestic violence cases at the Riverside Hall of Justice, Southwest Justice Center, San Bernardino Justice Center, Rancho Cucamonga, Victorville, and Barstow courthouses, the Clara Shortridge Foltz Criminal Justice Center, the Central Justice Center in Santa Ana, and courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options, including motion work in cases where the officer's credibility is the whole case. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Criminal defense in Riverside, San Bernardino, Hesperia, Los Angeles, and the Inland Empire.
Gramling Law Group
3600 Lime St, Bldg 2, Riverside, CA 92501
Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
Follow Daniel Gramling on Instagram: @californiafamilylawyer
Comments