A Pitchess motion is the California procedure for obtaining a peace or custodial officer’s confidential personnel records for use in a criminal or civil case. It is filed under Evidence Code 1043, must be supported by an affidavit showing good cause, and triggers a private review of the records by the judge before anything is disclosed. Before drafting one, check whether the records you want are already available through a public records request, because a 2019 change to the law removed several important categories from confidential status.
Check First Whether the Records Are Already Public
Under Penal Code 832.7, four categories of officer records are no longer confidential and can be requested directly from the agency without a court motion:1California Legislative Information. California Penal Code 832-7
- Records of an officer discharging a firearm at a person, or using force that resulted in death or great bodily injury, and any sustained finding of unreasonable or excessive force.
- Sustained findings that an officer committed sexual assault against a member of the public.
- Sustained findings of dishonesty in reporting, investigating, or prosecuting a crime, or in investigating misconduct by another officer, including perjury, false statements, false reports, and concealing or destroying evidence.
- Sustained findings that an officer failed to intervene against another officer using clearly unreasonable or excessive force.
If your records fit one of these categories, use the California Public Records Act instead. The Pitchess process remains necessary for everything else: unsustained complaints, internal investigation files outside the public categories, and personnel history not tied to the incidents listed above.
What the Motion Can Reach
Evidence Code 1043 covers “peace or custodial officer personnel records” and citizen complaint records maintained under Penal Code 832.5.2California Legislative Information. California Evidence Code 1043 The material typically sought includes citizen complaints, internal affairs investigation files, and disciplinary actions. Most litigants are looking for patterns: earlier excessive-force complaints when the defense is self-defense, or prior dishonesty findings when the officer is a key prosecution witness.
Who Can File
Any party to litigation can file. Criminal defendants use the motion most often, but civil plaintiffs suing over police misconduct rely on it just as heavily. Civil plaintiffs alleging excessive force must also include the relevant police reports about the circumstances of the force as part of the motion.
What the Motion Must Contain
The motion has to be written and supported by affidavits sworn under penalty of perjury. Evidence Code 1043 requires three components:2California Legislative Information. California Evidence Code 1043
- Identification of the court proceeding, the party making the request, the officer whose records are sought, the agency holding them, and the date and location of the hearing.
- A specific description of the type of records or information sought. Blanket requests for an entire personnel file will be denied.
- A good cause affidavit showing the records are material to the pending case and that you reasonably believe the agency has them.
The good cause affidavit is where most of the drafting effort goes. It must connect the records you want to the claims or defenses in your case. A defendant claiming an officer used excessive force during an arrest needs to explain how prior complaints about that officer’s use of force would support the defense.
The Good Cause Standard
The California Supreme Court in Warrick v. Superior Court called good cause a “relatively low threshold for discovery.” You do not have to prove the officer actually committed misconduct. You need a plausible factual scenario showing the alleged misconduct “could or might have occurred,” internally consistent and supportive of the defense being proposed.3Supreme Court of California. Warrick v. Superior Court
When evaluating good cause, judges work through a familiar set of questions: Is there a logical connection between the charges and the proposed defense? Is the request specific and tailored to the claimed misconduct? Would the requested information support the defense or lead to evidence that would? Under what theory would it be admissible at trial? A defense attorney’s declaration can sometimes satisfy the factual-scenario requirement simply by denying the facts in the police report, depending on the circumstances. Specificity is what carries a motion across the threshold.
Filing and Notice Deadlines
You file the motion in the court where the underlying case is pending, and you must simultaneously serve written notice on the governmental agency that holds the records. Serving only the prosecutor or the officer’s personal attorney is not enough. The statute requires notice to the custodial agency itself.2California Legislative Information. California Evidence Code 1043
The notice periods differ by case type:
- In criminal cases, written notice must be served and filed at least 10 court days before the hearing. Opposition papers are due at least five court days before, and reply papers at least two court days before.4California Legislative Information. California Evidence Code 1043
- In civil cases, the notice period follows Code of Civil Procedure 1005, generally requiring at least 16 court days’ notice before the hearing. Add five calendar days if notice is served by mail within California, or ten if the mailing or delivery address is outside California but within the United States.5California Legislative Information. California Code of Civil Procedure 1005
After the agency receives notice, it must immediately notify the individual officer whose records are being sought.2California Legislative Information. California Evidence Code 1043
The In Camera Review
If the court finds the motion sufficient, the judge conducts a private review of the personnel records in chambers. Neither you, your attorney, the prosecutor, nor the public is present. The judge personally examines the files and decides which records are relevant enough to disclose.6California Legislative Information. California Evidence Code 1045
Evidence Code 1045 requires the judge to exclude two categories during that review. First, in criminal cases, the conclusions reached by any officer who investigated a complaint filed under Penal Code 832.5 are withheld; the underlying facts can be disclosed, but the investigator’s bottom-line assessment cannot. Second, facts so remote in time or circumstance that disclosure would provide little or no practical benefit are excluded.6California Legislative Information. California Evidence Code 1045
Remoteness is a judgment call. The statute sets no fixed cutoff. Older complaints can clear the bar if the pattern of conduct is similar enough to the current allegations to be useful.
Protective Orders and Limits on Use
Whenever a court orders disclosure, it must also issue a protective order restricting how the records can be used. The disclosed material may only be used in the court proceeding for which it was requested.6California Legislative Information. California Evidence Code 1045 You cannot share the records with the media, post them publicly, or use them in an unrelated case. Violating the order can bring contempt of court. The agency or the officer can also seek additional protections against unnecessary embarrassment or burden, and the court has broad discretion in shaping that relief.
How Pitchess Interacts with Brady in Criminal Cases
In criminal cases, the Pitchess procedure sits alongside the prosecution’s independent duty under Brady v. Maryland to disclose material, exculpatory evidence. If an officer’s personnel file contains information favorable to the defense, the prosecution has a constitutional obligation to disclose it whether or not a Pitchess motion is filed. That includes impeachment material and evidence that could reduce a potential sentence, and the duty exists even when the favorable evidence sits in files the prosecutor has not personally reviewed.
Some district attorney offices proactively review officer personnel files and maintain internal lists of officers with sustained findings of dishonesty. When a case relies on an officer on such a list, the prosecution may be obligated to disclose that fact. Filing a Pitchess motion gives the defense an independent path to the same material rather than relying solely on the prosecution to fulfill its disclosure duty.
If the Motion Is Denied
The common reasons for denial are affidavits that are too vague, requests untethered to a specific defense theory, and failure to present even a plausible scenario of officer misconduct. A denied motion can sometimes be refiled with a stronger declaration that cures the deficiencies the court identified. On appeal, the trial court’s ruling is reviewed for abuse of discretion, and in criminal cases reviewing courts routinely examine the sealed in camera records to confirm the relevance standard was properly applied.