Law enforcement personnel records

The prosecution, often routinely, denies or fails to answer requests for derogatory information in the personnel records of law enforcement personnel involved in a case.  Some cite United States v. Henthorn (note the NMCCA, in at least one court order, has noted that no military appellate court has ruled that Henthorn states the applicable rule).

Here, courtesy of is an interesting federal court case.

The right to compulsory production of the searching officer’s personnel file that was specific only for potential impeachment material would be enforced under United States v. Nixon, Rule 17(c) [Fed. R. Crim. Pro.], and Colorado’s privacy standards (People v. Spykstra, 234 P.3d 662, 670 (Colo. 2010)). United States v. Neal, Civil Action No. 11-cr-00163-WJM, 2011 U.S. Dist. LEXIS 92151 (D. Colo. August 18, 2011):

And here is FA’s crop of the opinion.

Though Defendant does not refer to specific documents from the Officers’ personnel files, his request is limited to the topics of “work history and training, complaints against the individual officers, disciplinary actions, both pending and already adjudicated, notes, records and reports, commendations.” … This shows that Defendant has attempted to limit the evidence sought to be produced to those subjects most likely to yield impeachment material. Without having seen the personnel files, the Court cannot imagine how Defendant could be more specific.

Note also, that the subpeona’s were filed by the defense ex-parte – not a problem in federal and other civilian courts.

In sum, the Court finds that Defendant’s right to compulsory process and to confront the key witness against him outweighs Officer F.’s right to privacy in his personnel file. However, so as to respect Officer F.’s privacy interests as much as possible, the Court will conduct an in camera review of the materials and will require that any materials ultimately produced to Defendant be subject to a protective order.

And in an important footnote 6, the court states:

To the extent that the subpoena for documents from the personnel files is arguably overbroad, the Court can and will correct such overbreadth during its in camera review. As discussed more fully below, the officers’ privacy interests in their personnel files warrant disclosure of only that information material to this case and likely to be relevant for impeachment purposes. The Court will be mindful of these considerations as it conducts its in camera review.

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