California Criminal Lawyer Blog

Below is a terribly frightening piece of proposed legislation authored by California assembly person Hayashi. It is intended to gut the ability of both criminal defendants and civil litigatants from accessing police personnel files. In other words, Hayashi wants to make it hard for those harmed by the police to learn of their prior miscondcut hidden away in their personnel files.

I think that someone should do some research on Hayashi to learn if the police unins contributed to this legislator's campaign. And, if so, that should be made very public.

Below is the text of the offending bill.

BILL NUMBER: AB 2377 INTRODUCED - BILL TEXT

INTRODUCED BY Assembly Member Hayashi

FEBRUARY 21, 2008

An act to amend Section 1043 of the Evidence Code, relating to
custodial officers.

LEGISLATIVE COUNSEL'S DIGEST

AB 2377, as introduced, Hayashi. Custodial officers: personnel
records.

Existing law provides for the confidentiality of peace or
custodial officer personnel records, as specified. Existing law also
provides discovery procedures for peace or custodial officer
personnel records. Existing law, developed by the courts, requires a
defendant requesting those personnel records to present an affidavit
that sets forth a specific internally consistent factual scenario of
officer misconduct that is plausible when read in light of the
pertinent documents. Existing law, developed by the courts, also
permits courts to make determinations regarding what is plausible
based on a reasonable and realistic assessment of the facts and
allegations.

This bill would require a defendant seeking personnel records to
present an internally consistent factual scenario of the claimed
officer misconduct that is substantially credible when read in light
of the pertinent documents. This bill would further provide that an
affidavit that contains a bare allegation of misconduct, or that
simply denies the elements of the charged offense, or that merely
denies the veracity of the police report, is insufficient. This bill
would require courts to determine whether good cause for the
discovery or disclosure sought has been demonstrated based on a
reasonable and realistic assessment of the facts and allegations.

Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1043 of the Evidence Code is amended to read:

1043. (a) In any case in which discovery or disclosure is sought
of peace or custodial officer personnel records or records maintained
pursuant to Section 832.5 of the Penal Code or information from
those records, the party seeking the discovery or disclosure shall
file a written motion with the appropriate court or administrative
body upon written notice to the governmental agency which has custody
*and control of the records. The written notice shall be given at the
times prescribed by subdivision (b) of Section 1005 of the Code of
Civil Procedure. Upon receipt of the notice the governmental agency
served shall immediately notify the individual whose records are
sought.
(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
peace or custodial officer whose records are sought, the governmental
agency which has custody and control of the records, and the time
and place at which the motion for discovery or disclosure shall be
heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure
sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief
that the governmental agency identified has the records or
information from the records. The affidavit shall also include
an internally consistent factual scenario of the claimed
officer misconduct that is substantially credible when read in light
of the pertinent documents. An affidavit that provides a bare
allegation of misconduct, or that simply denies the elements of the
charged offense, or that merely denies the veracity of the police
report, is insufficient.
(c) The court shall determine whether
good cause has been demonstrated based on a reasonable and realistic
assessment of the facts and allegations.
(c)
(d) No hearing upon a motion for discovery or disclosure
shall be held without full compliance with the notice provisions of
this section except upon a showing by the moving party of good cause
for noncompliance, or upon a waiver of the hearing by the
governmental agency identified as having the records.