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Court of Appeal, Second District, Division 2, California.

Peter J. PITCHESS, Sheriff of Los Angeles County, Petitioner, v. SUPERIOR COURT, State of California, COUNTY OF LOS ANGELES, Respondent, Caesar ECHEVERIA, Real Party In Interest.

Civ. 41989.

Decided: August 30, 1973

John H. Larson, Acting County Counsel, and Jeffrey H. Nelson, Deputy County Counsel, Los Angeles, for petitioner. No appearance for respondent. Miguel F. Garcia, Pico Rivera, for real party in interest.

The Sheriff of Los Angeles County seeks by extraordinary writ to prevent respondent superior court from requiring production in criminal discovery proceedings of sheriff's internal records that he keeps confidential from both prosecutors and defendants.

Real party in interest, defendant Caesar Echeveria, is presently charged with battery in March 1972 against three sheriff's deputies (Pen.Code, §§ 242, 243). (A charge of battery against a fourth deputy has been dismissed.) In the course of preparation for trial defendant sought to discover records of the administrative services bureau of the sheriff's department that relate to the four sheriff's deputies he was charged with attacking. A function of the administrative services bureau is to investigate for internal purposes complaints of misconduct against members of the sheriff's department. In the course of such investigations the bureau interviews persons inside and outside the department, who are assured that all interviews and complaints will remain confidential.

In response to defendant's request for discovery respondent court initially ordered the prosecution to produce for inspection the sheriff's records ‘relating to any allegations by members of the public involving . . . excessive use of force’ by the deputies involved. On the prosecution's inability to produce confidential records of the sheriff over the latter's objection,1 defendant sought a subpoena duces tecum directing the sheriff to produce records of complaints made to the sheriff's department by four named persons about excessive use of force by the four deputies on other occasions and to produce for inspection conclusions and recommendations of the sheriff's investigating officers with respect to these complaints.

The sheriff moved to quash the subpoena. Respondent court not only denied the motion to quash, but on its own initiative ordered production of records ‘relating to any allegations by members of the public involving the alleged excessive use of force’ by the four deputies involved.


Sufficiency of Declaration in Support of Subpoena.

The sheriff urges the insufficiency of the declaration in support of the subpoena duces tecum in that it fails to show good cause, fails to set forth in full detail the materiality of the documents sought, and fails to show specific facts justifying discovery (Code Civ.Proc., §§ 1985, 2036.)

When in civil or criminal proceedings a subpoena duces tecum is used as a discovery device (Associated Brewers Distr. Co. v. Superior Court, 65 Cal.2d 583, 587, 55 Cal.Rptr. 772, 422 P.2d 332), the provisions of sections 1985 and 2036 apply. These sections require the affidavit or declaration in support of the subpoena to show good cause for production of the data sought and to set forth in full detail its materiality to the issues in the case. Good cause requires a showing of the specific facts that justify discovery. The criteria for discoverability of documents by subpoena are whether they are (1) material to the issues (§ 1985), and (2) relevant to the subject matter, or reasonably calculated to lead to the discovery of admissible evidence (§ 2036). (Elmore v. Superior Court, 255 Cal.App.2d 635, 638–639, 63 Cal.Rptr. 307.) Satisfaction of these tests should be made apparent by the declaration in support of the subpoena.

The declaration in support of defendant's subpoena was that of his counsel, who stated: ‘One of the defenses in this case will be that of self-defense, that if the defendants used any force against the victim deputies it was only reasonable force necessary for their protection against great bodily injury. The statements of past complainants against victim officers, where the complaint filed involved the alleged excessive use of force by the victim deputies, are material in the issue of the propensity of the victim officers to use excessive force against private citizens and more specifically to enhance the credibility of the defendants in their testimony that excessive force was used by the victim deputies against the defendants in this case.'2 Counsel also declared he had unsuccessfully attempted to locate two of the four named complainants, and the other two complainants needed to review their statements in order to refresh their recollections.

The relevancy and materiality of the documents sought at bench is assertedly based on Evidence Code section 1103, which allows evidence of the character of a victim of a crime to prove conduct of the victim in conformity with that character. Defendant, in justification of his own use of force against the sheriff's deputies, claims he was acting in self-defense against the use of excessive force by the deputies against him, and to prove use of excessive force by the deputies he seeks to establish their vicious and brutal character by specific acts of viciousness and brutality on other occasions. Section 1103 has modified the earlier evidentiary rule governing self-defense—which generally rejected evidence that a victim of aggression had committed aggression against other persons on other occasions (People v. Rowland, 262 Cal.App.2d 790, 797, 69 Cal.Rptr. 269; People v. Smith, 249 Cal.App.2d 395, 404–405, 57 Cal.Rptr. 508)—and provides that in appropriate circumstances evidence of specific acts of other aggression may be admitted to establish aggressiveness as a trait of character.

However, to obtain a subpoena duces tecum—both in civil and criminal cases—an applicant must show specific facts in justification, and he must specify in full detail the relationship and materiality of the data sought to the issues involved. We discern no such showing here. Defendant, the party seeking discovery, has not personally filed a declaration concerning his use of force in self-defense against excessive force used by the deputies but instead has relied upon a declaration of counsel. The latter's declaration is in hypothetical form, and says no more than that if defendant used force against the deputies it was only to protect himself against excessive and brutal force used by the deputies against him. Counsel's declaration tells us nothing of the circumstances that brought about the use of force by the deputies, gives us no details of the kind of force used (whether fists, feet, clubs or firearms), and gives us no details of the kind and amount of force used by defendant in self-defense. If, for example, defendant had filed a personal declaration asserting that he had been pistol-whipped at a particular time and place by a particular deputy, that to protect himself from the whipping he had used his fists against the deputy, and that other substantiated complaints of pistol-whipping had been made against that same deputy, the declaration would satisfy the statutory requirements of ‘specific facts' and ‘full detail’ for issuance of a subpoena duces tecum. Instead, defendant merely filed a declaration of counsel setting forth hypothetical facts in a conclusory manner.

It is true that an affidavit of counsel was treated as sufficient in Engstrom v. Superior Court, 20 Cal.App.3d 240, 97 Cal.Rptr. 484. In that case, however, counsel swore to facts that had been testified to at a preliminary hearing and to facts that appeared in pretrial statements of prosecution witnesses. He also set forth in considerable detail his client's version of the argument that led to the shooting and of the shooting itself, a version which, if believed, would make a prima facie case of self-defense. For these reasons the requirements for ‘specific facts' and ‘full detail’ appear to have been satisfied in that case.

When the information sought under subpoena duces tecum consists of confidential internal records of a law enforcement agency not available to the prosecution, we think it especially important that defendant's declaration in support of the subpoena show specific facts in full detail to justify the issuance of the subpoena. The statutory requirement is not satisfied by a general statement of counsel that if defendant used force against deputy sheriffs it was only that amount of force reasonably necessary to protect himself from bodily injury. (Joe Z. v. Superior Court, 3 Cal.3d 797, 804, 91 Cal.Rptr. 594, 478 P.2d 26; People v. Newville, 220 Cal.App.2d 267, 272, 33 Cal.Rptr. 816; People ex rel. Dept. Pub. Wks. v. Younger, 5 Cal.App.3d 575, 579–581, 86 Cal.Rptr. 237; Johnson v. Superior Court, 258 Cal.App.2d 829, 834–836, 66 Cal.Rptr. 134.) Hence, the defective nature of the declaration in support of the subpoena requires to issuance of the extraordinary writ. (Joe Z. v. Superior Court, 3 Cal.3d 797, 804, 91 Cal.Rptr. 594, 478 P.2d 26; Ballard v. Superior Court, 64 Cal.2d 159, 167, 49 Cal.Prtr. 302, 410 P.2d 838; People v. Cooper, 53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 349 P.2d 964.)

Other Records Ordered by the Court.

On its own motion respondent court ordered the sheriff's department to produce ‘records of the Los Angeles County Sheriff's Administrative Services Bureau, relating to any allegations by members of the public involving the excessive use of force by the following named Deputies . . .’ An affidavit or declaration of the party is a condition precedent to the issuance of such an order. (Lewis v. Superior Court, 118 Cal.App.2d 770, 773, 258 P.2d 1084; Smith-Golden, Inc. v. Superior Court, 41 Cal.App.2d 512, 514, 107 P.2d 299.) The court order is fatally defective in that it is not so supported. (People v. Clinesmith, 175 Cal.App.2d Supp. 911, 913–914, 346 P.2d 923.)


Admissibility of Evidence of Character to Prove Conduct.

Although the extraordinary writ must be granted on procedural grounds, we do not rest our decision on that basis alone, for an important evidentiary problem has surfaced by way of discovery and its timely resolution is in the public interest.

The problem concerns the extent to which the Evidence Code permits evidence of a trait of character of the victim of a crime to be used to prove the victim's conduct when the victim is a peace officer and the crime is assault on a peace officer engaged in making an arrest. The importance of this problem may be seen in the following extracts from petitioner's brief:

‘For approximately the last two years there has been a proliferation of discovery motions in criminal cases that seek confidential information not in the possession of and not available to the prosecution. The most persistent demand has been for material and information compiled by the division of a law enforcement agency that is responsible for investigating complaints of alleged misconduct on the part of peace officers. . . .

‘A procedure has developed whenever a person is charged with a violent or assaultive crime against a peace officer. The defendant's attorney will make a discovery motion or seek a subpoena duces tecum similar to the one involved in the case at bar. Generally, the defense argues that Evidence Code Section 1103 permits the introduction of evidence of the character of the victim of a violent or assaultive crime. From this premise, the defendant asserts that if there is any information in the possession of the law enforcement agency (employing the victim officer) that might tend in some way to reflect unfavorably upon the character of the officer, then that information should be made available to the defense. Specifically, most if not all, law enforcement agencies have an internal investigation unit that maintains lists and records of complaints filed against employees. The contention is made that all the names and addresses of complainants who have filed ‘relevant’ (i.e., physical abuse) complaints against the victim officer should be revealed. This would permit the defense to contact all of the complainants and to subpoena them as witnesses at trial in order that these complainants may give their opinion of the officer's character.'

The pertinent parts of Evidence Code sections 1101 and 1103 read:

‘§ 1101. (a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specific occasion. . . .’

Ԥ 1103. In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if such evidence is:

‘(a) Offered by the defendant to prove conduct of the victim in conformity with such character or trait of character. . . .’

Defendant asserts that under these sections he is entitled to discover and introduce in evidence instances of the use of excessive force by an arresting peace officer on other occasions. Evidence that a peace officer used excessive force on other occasions, defendant argues, is relevant to prove a trait of the officer's character, specifically, his vicious and brutal nature. Viciousness and brutality of character make it likely that on the occasion of defendant's arrest the officer also used excessive force, which if it happened, would justify defendant's use of force in his own defense.

The basic syllogism of defendant's argument relies on conduct on other occasions to prove a trait of character to prove conduct on this occasion. Although the formal structure of the argument uses evidence of conduct to prove character to prove conduct, it is quite obvious that in substance we are dealing with the use of conduct on other occasions to prove conduct on this occasion. An analysis of the propriety of this usage requires some exploration of its historical background.

1. Primitive Law. Primitive law relied heavily on character as proof of fact, and character tended to be established by past conduct and reputation. (Thayer, A Preliminary Treatise on Evidence at the Common Law (1969 Reprint), pp. 17–18, 24–25, 62–63, 72–73, 525.) A history of picking pockets was accepted as proof that a person picked a pocket on the particular occasion, under the adage that once a thief always a thief. Yet in due time recognition came that this method of proof placed excessive reliance on prejudgment and tended to base conviction for specific crime on general proof that the accused had a bad character and a bad record, that it was susceptible to the weakness inherent in the maxim that to give a dog a bad name is to hang him.

2. The General Rule. Approximately 300 years ago English courts began to reject the primitive rule allowing proof of bad character and of bad conduct as proof of specific crime in favor of a rule that prohibits proof of other crimes and of propensity for crime as proof of the crime charged. As summarized by Professor Wigmore:

‘Down to the 1700s . . . the witness's character might always be attacked by the testimony of others detailing the events of his past life and misconduct. It must be remembered that under the orthodox rule, then prevailing, as to proof of general character by opinion . . . the witness could give his personal judgment of the impeached witness' character, based on the former's acquaintance and dealings with him; it was thus an easy concession to allow the impeaching witness to describe among his reasons such specific conduct, good or bad, as might have become known to him. . . .

‘But the production of such evidence by witnesses who spoke merely to specific acts of misconduct led gradually to a canvassing of the objections against such a mode of proof. Towards the end of the 1600s appears a tendency to exclude it. Though the rule of exclusion did not become settled until the first half of the next century, and though there are instances enough of its being ignored down to that time, nevertheless, it was always treated, from the beginning of the 1700s, as a rule that might be invoked. The reasons that were then advanced and accepted in its support have ever since been maintained and conceded as the correct and valid ones.’ (Italics added.) (3 Wigmore, Evidence (3d ed.) § 979.) This general rule is embodied in Evidence Code section 1101, subdivision (a).

3. Exceptions to the General Rule. With the development of the law of evidence there arose a series of exceptions to the general rule that evidence of other crimes is inadmissible to prove the crime charged, exceptions based on the theory that evidence of other crimes may be admitted to prove some fact in the case other than guilt. Under these exceptions evidence of other crimes became admissible when relevant to prove another fact in the case, such as motive, intent, identity, knowledge, or scheme. These exceptions are found in Evidence Code section 1101, subdivision (b).

And in certain classes of cases the use of a trait of character began to be admitted as proof or disproof of particular conduct. For example, in assault cases when the question arose as to who was the original aggressor, it became permissible for defendant to prove as a trait of character his own peacefulness and to prove the quarrelsomeness of the other party. In sex crimes, when the issue was force versus consent, it became permissible for defendant to prove as a trait of character his own probity and uprightness and to prove the promiscuity and looseness of the victim. In such instances proof of character was originally restricted to evidence of reputation. However, the anomaly of permitting character to be proved by reputation, which is secondhand opinion, and disallowing proof of character by personal knowledge, which is firsthand opinion, became obvious. (7 Wigmore, Evidence (3d ed) §§ 1981, 1986.) In time, proof of character by opinion evidence of witnesses with direct knowledge of the person whose character was in issue became admissible, and as a natural concomitant (Wigmore's easy concession, vol. 3, p. 533) evidence of specific acts tended to be given by the witness to support his opinion on character. This progression led to the exception in Evidence Code section 1103, which, in allowing proof in a criminal action of the character of the victim to prove conduct, permits character to be evidenced by the victim's conduct on other occasions.

It is apparent that the law of evidence has travelled full circle and returned to its beginnings when it allows evidence of conduct on other occasions to prove conduct on the particular occasion. Although proof is not allowed directly—for we declare that proof of other conduct is proof of a trait of character from which proof of particular conduct may be inferred—the distinction between proof of other conduct to prove character and proof of other conduct to prove particular conduct seems wholly sophistical. It is, we think, self-evident that tension exists between the basic rule that evidence of other crimes is inadmissible to prove the commission of a particular crime (§ 1101) and the exception stating that evidence of other crimes of a victim is ‘not inadmissible’ to prove the commission of a particular crime (§ 1103).

When tension between statutory provisions exists it is the duty of the courts to harmonize their substance to the extent possible in order to give effect to both provisions and prevent one from swallowing up the other. In this task questions of degree become important. We find the mechanism for such harmanization in the provisions of Evidence Code section 352:

‘§ 352. The court in its discretion may exclude evidence if it probative value is substantially outweighted by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’

This section permits a court to evaluate and exclude evidence when its probative value is substantially outweighed by the probability of confusion of issues, undue consumption of time, undue prejudice, or misguidance of the trier of fact. (People v. Rocha, 3 Cal.3d 893, 900, 92 Cal.Rptr. 172, 479 P.2d 372.) In the right of this section we proceed to consider the extent to which the general rule in section 1101 has been modified by the exception set out in section 1103. This undertaking requires us to review general evidentiary theory of relevancy and materiality in its application to the fact-pattern of this case.

Relevancy as a Limitation on the Use of Evidence.

Our starting point is the hypothesis that evidence must always be viewed in the setting of the issue to which it relates. The issue in turn must relate to the subject of the inquiry. These basic considerations are set out in Evidence Code section 210:

‘§ 210. ‘Relevant evidence’ means evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Italics added.)

Relevancy is the sieve that determines the useability of facts and shapes the existence of issues. Through this sieve of relevancy we sift the infinity of facts in the universe to obtain those having value for our particular purpose. Professor Wigmore, following Jeremy Bentham, has produced order out of chaos by suggesting that evidentiary problems can be evaluated through the use of two questions:

What is the proposition to be proved?

What is the evidentiary fact to prove it?

Wigmore then points out that an evidentiary fact can itself become a proposition to be proved. (1 Wigmore, Evidence (3d ed) § 2.) This subsidiary proposition in turn may be proved by another evidentiary fact, which in turn can become a proposition to be proved by further evidentiary fact. Like mirrors reflecting into each other, the creation of propositions from evidentiary fact can extend to infinity. Obviously, the point will arrive in every inquiry when further multiplication of issues is no longer profitable. The operation of this process is described in American Law Institute, Model Code of Evidence, Comment to Rule 303, the precursor of Evidence Code section 352:

‘Wherever a matter is offered as the basis of an inference as to the existence or non-existence of fact in dispute, and the matter is itself in dispute, an additional issue is raised. Often item A, when offered as tending to prove the existence of alleged fact D, will serve only as a basis for an inference of the existence of B; and if B is inferred, it will in turn serve as a basis for an inference of the existence of C, and C likewise for D. If the probative value of A is slight, and it will require much time to hear the evidence for and against its existence, several difficulties may arise: (1) the time to be consumed may be out of all proportion to the value of the evidence; (2) the contest over the existence or non-existence of A may mislead the jury into believing it an issue of major importance; (3) the evidence as to the existence or non-existence of A may present such a number of subordinate issues as to confuse the jury. . . .’ (pp. 180–181.) (Italics added.)

Using the Wigmore theory of logical relevancy we examine the issues tendered in the present type of case, where evidence of conduct on other occasions is sought in order to prove character in order to prove conduct on a particular occasion. We find an extension of the process of issue-creation to the fifth power, which can be summarized as follows:

1. The basic charge is Assault; the basic defense is No Assault. The issue Assault-No Assault is directly joined.

2. Defendant seeks to establish the proposition No Assault by proof of self-defense. No Assault becomes the proposition and evidence of self-defense the evidentiary fact.

3. Self-defense in turn is to be established by the peace officer's use of excessive force against defendant. Self-defense becomes the proposition and use of excessive force the evidentiary fact.

4. In turn, the peace officer's use of excessive force is to be established by proof of his vicious character. Use of excessive force becomes the proposition and viciousness of character the evidentiary fact.

5. Finally, viciousness of the peace officer's character is to be proved by the peace officer's excessive use of force on other occasions. Viciousness of character is the proposition, and excessive use of force on other occasions the evidentiary fact.

To recapitulate, the defense of No Assault is to be proved by self-defense, which is to be proved by the victim's excessive use of force against defendant, which is to be proved by the victim's vicious character, which is to be proved by his use of excessive force on other occasions. The critical inference in this sequence flows from the premise of the peace officer's use of excessive force on other occasions to the conclusion that he used excessive force on this occasion. But in view of the historic Anglo-American distaste for the use of evidence of past crimes to prove the commission of the present crime, we require the inference to be drawn by indirection. The logic runs:

(1) On other occasions the peace officer used excessive force;

(2) Therefore, he probably has a vicious character;

(3) Therefore, he probably used excessive force against defendant in March 1972.

It is apparent from this analysis of the issues that we have soared far from the roots of the case and have perched on the furthest branch of the outermost limb at the top of the tree, four powers removed from the basic issue in the case. Remoteness is necessarily a cardinal factor in evaluating the relevance of such a sequence of inferences. Yet logically, inference may be drawn from inference to infinity in a process that continues to retain formal relevancy. To find the practical resolution for this logical difficulty we turn to the concept of materiality.

Materiality as a Limitation on the Use of Evidence.

In each instance of the proffer of evidence that would raise a tangential issue the court must face the question—Is its exploration worthwhile, is more given up than gained in the pursuit of this issue? Is its value to the inquiry offset by the factors mentioned in Evidence Code section 352, confusion of issues, prejudice, undue consumption of time, and misguidance of the trier of fact? This question brings us to the second sieve through which we sift the myriad evidentiary items of possible relevancy to obtain those having useable value to the inquiry. This second screening generally goes under the name of materiality. Professor Morgan has described immateriality, the negative of materiality, as ‘evidence having some probative value upon an issue in the action but of such slight value as not to be worth the time, expense and inconvenience which the process of proving it would require.’ (Morgan, Basic Problems of Evidence (1962) p. 183.) Professor Wigmore covers the same ground but uses the term evidence of ‘minimum probative value.’ (1 Wigmore, Evidence (3d ed.) § 28.) Professor Thayer, discussing the same point, declares that ‘[s]ome things are rejected as being of too slight a significance, or as having too conjectural and remote a connection; . . .’ (Thayer, A Preliminary Treatise on Evidence at the Common Law (1969 Reprint), p. 266.) Unfortunately, text writers have not agreed upon a uniform terminology to express the concept of materiality, which they variously describe in negative terms of remoteness, conjecture, de minimis, insubstantiality,3 and the like, nor have they elaborated upon the principles of this evidentiary concept to any great extent. Yet the concept of materiality is an essential tool in the daily work of the trial courts, which routinely require issues and evidentiary facts to satisfy its pragmatic test.

One further point is apposite to the subject of materiality. Professor Morgan has said: ‘[I]t must be obvious that the value of item A as probative of F varies . . . inversely with the number of inferences between A and F. . . .’ (Morgan, Problems of Evidence (1962), p. 186.) The same point was made by Justice Draper, who noted that the building of inference on inference often results in ‘a progressive weakening of logical sequence.’ (Savarese v. State Farm, etc., Ins. Co., 150 Cal.App.2d 518, 520, 310 P.2d 142, 144.) From this phenomenon it seems reasonable to conclude that the further removed a specific issue lies from the basic issue of the inquiry, the more substantiality (i.e., materiality to the issue involved) the evidence to prove it should possess. It follows that the materiality of evidence relating to an issue of the fifth power should be manifest.

Relevancy and Materiality of the Data Sought.

At bench, defendant seeks to discover specific acts of misconduct by peace officers on other occasions to prove their bad character in order to prove their misconduct in March 1972. If the material sought consisted of demonstrated proof of misconduct on other occasions, we would find it discoverable as evidence that might become admissible at trial pursuant to Evidence Code section 1103. But is this the case when, as we are told, the material consists of complaints made to the sheriff's internal investigating bureau and the bureau's investigation of those complaints for disciplinary purpose?

The material sought is naturally divisible into two parts: complaints that have been rejected for lack of merit, and complaints that have led to disciplinary or other action against the deputy complained about.

(a) Rejected Complaints.

In instances of rejected complaints it is obvious that the material sought does not comprise proof of misconduct but merely charges of misconduct. If mere charges of a deputy's misconduct on other occasions were admitted as evidence of his misconduct in March 1972, a further disputed issue would enter the proceedings, and the sequence of proposition and evidentiary fact would be raised to the sixth power. Excessive use of force on a particular date (for example, September) would become the sixth proposition, and evidentiary fact pro and con would become admissible as proof or disproof of the proposition. Necessarily, evidence pro and con on the proposition would have to be received, for to require the charge to go unanswered would be to kill a man in his good name by a side-wound against which he has no protection or defense. (3 Wigmore, Evidence (3d ed) § 979, at p. 534). Therefore, if charges of misconduct were to be equated for evidentiary purposes with proof of misconduct, it would become necessary to litigate issues of misconduct on all other occasions on which misconduct had been charged (for example, September, April, June and November). To try the issue of misconduct of a sheriff's deputy in March 1972 would require the trial of as many other charges of misconduct as defendant chooses to bring up. The sole purpose of these collateral trials would be to determine the question whether excessive force had ever been employed by the sheriff's deputy on some other occasion, in order to draw an inference of viciousness of character, in order to draw in turn an inference of use of excessive force on March 1972.

The use of material tendering collateral issues in this wholesale fashion is strongly objectionable on the ground of confusion of issues. The trier of fact would be required to find the facts and circumstances of five asserted assaults instead of one and would then be required to relate its findings to a chain of inferences of the fifth power in order to reach a finding on the charge of battery before it. With such proliferation of issues the probability becomes great that the trier of fact will be misled.

The use of such material is also objectionable on the ground of undue consumption of time, for to try five instances of assault would normally take fives times as long as to try one. Indeed, it is probable it would take more than five times as long, for invariably a certain amount of time would be spent untangling one instance of asserted assault from another.4 We see no indication that a trial five times as long would be any improvement over a trial limited to the basic issue in the case. Indeed, the prognosis is strongly to the contrary, for multiplication of dependent issues has a tendency to obstruct and confuse the fact-finding process and thereby bring about suppression rather than discovery of the truth.

In addition to objections based on confusion of issues, misguidance of the trier of fact, and undue consumption of time, use of the material sought would be questionable on logical grounds in that it consists of complaints that have been investigated and rejected for lack of merit. Defendant would be seeking to relitigate charges that have previously been determined adversely to his contentions. True enough, those other determinations of No Merit were made in administrative and not in judicial proceedings, but that circumstance alone does not derogate from their validity as prior determinations of fact. Most findings of fact in daily life are made administratively, most are accepted as final, and only a few ever reach the courts. Court review was available here, for a person dissatisfied with the sheriff's administrative disposition of his complaint could have brought a damage action against the county and against the deputy of whose misconduct he complains. His failure to seek court review gives the administrative determination of No Merit the tacit authority of acquiescence. Under such circumstances to infer misconduct from a rejected complaint is to base an inference on defective data whose present relevancy and materiality is wholly conjectural. The force of this argument may be brought out by a reiteration of the chain of inferences defendant seeks to draw:

(1) On other occasions the peace officer used excessive force;

(2) Therefore, he probably has a vicious character;

(3) Therefore, he probably used excessive force against defendant in March 1972.

The validity of the chain is dependent upon the reliability of proposition (1). Yet defendant's proposed evidence to establish proposition (1) consists of complaints that in actual fact have been rejected administratively. His proposition (1) is wholly conditional and speculative, and his chain of inferences amounts to nothing more than:

(1) If on other occasions the peace officer used excessive force;

(2) Therefore, he probably has a vicious character;

(3) Therefore, he probably used excessive force against defendant in March 1972.

We think proof of other acts to show propensity should be substantial and not in itself require a resolution of disputed issues, for as Lord Ellenborough observed, a court does not sit for the purpose of examining into collateral crimes. (Rex v. Watson [1817] 2 Stark. 115, 152; 171 English Reprints 591, 605.)

We conclude that when material sought to prove conduct to prove character to prove conduct is itself conjectural and disputable, it does not possess sufficient relevancy and materiality to become discoverable by subpoena duces tecum.

(b) Substantiated Complaints.

There may be, however, complaints of the use of excessive force by a peace officer that fall into a different category, complaints that after investigation have been substantiated. We think a complaint has been substantiated when it has resulted in the imposition of disciplinary action on a peace officer in the form of discharge, suspension, or reprimand; when it has resulted in a civil judgment against the peace officer or his employer; or when it has resulted in a specific court finding of the officer's misconduct. In such instances there has been an administrative or judicial determination that excessive force was employed by the peace officer on another occasion, a determination the tribunal in the present proceeding could accept without further investigation. In a sense the thrust of the factors we have previously discussed with respect to rejected complaints has now been reversed, for in instances of substantiated complaints proof of excessive use of force on other occasions is reliable, and the tribunal need not be troubled by the probabilities of proliferation of issues, undue consumption of time, and misguidance of the trier of fact. We think such substantiated complaints are discoverable.


We conclude that when a defendant charged with battery against an arresting peace officer seeks to prove that his own use of force was in self-defense against excessive force used by the arresting officer, and defendant undertakes to prove the officer's use of excessive force against him by proof of the arresting officer's vicious and brutal character to be proved in turn by the arresting officer's use of excessive force on other occasions, a subpoena commanding a law enforcement investigative bureau to produce the names of other complainants against the arresting officer and to produce investigative reports about these other complaints is valid only to the extent that these other complaints resulted in some determination favorable to the complainant, i. e., imposition of discipline on the officer, adjudication of civil liability as a result of his conduct, or specific court finding of the officer's use of excessive force.

We find enlightening the decision in Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 7 Cal.Rptr. 109, 354 P.2d 637. Although that was a civil action involving a claim of privilege, the ruling of the court could have been equally grounded on the principles of relevancy and materiality we have here discussed. The ruling grew out of a suit for libel against a newspaper by an attorney at law, who claimed damages for injury to his professional reputation. The newspaper sought discovery from the State Bar of information comparable to that sought here; specifically, what complaints of unprofessional conduct had been lodged against plaintiff with the State Bar, what investigations had been made into such complaints, and what conclusions and dispositions had resulted. In refusing discovery of complaints made to the State Bar against an attorney that did not result in disciplinary action, the court pointed out the insubstantiality of such complaints and commented on the need for confidentiality in operating a system designed to process complaints against persons licensed by the state.

‘[I]n the case of complaints against members of the State Bar, it is essential to secure all possible information bearing thereon, and necessarily much of the information can only be had upon the understanding that the informant and the information will be treated as confidential.’ (Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 570, 7 Cal.Rptr. 109, 120, 354 P.2d 637, 648.)

The court observed that the procedure acts as a safety valve for the public and provides complainants with a forum in which their complaints can be reviewed. (pp. 567–568, 7 Cal.Rptr. 109, 354 P.2d 637.) The procedure was designed, said the court, to provide reasonable protection for both the public and the members of the bar.

But after declaring that complaints against members of the bar were not discoverable in those instances where discipline had not been imposed, the court went on to rule that in those instances in which the State Bar had administered a reproval to an attorney, whether public or private, those reprovals were discoverable.

‘It would appear that information resulting in a private reproval would and should not have the ultimate confidentiality of information which leads to no disciplinary action. A private reproval is an official act of the board, as much as a public reproval. It means either that some charge brought against the member has been determined to be well founded, or that some conduct warranting reproval has been disclosed. If the information is relevant there is no reason that in a proper case such information should not be available by discovery.’ (p. 574, 7 Cal.Rptr. p. 123, 354 P.2d p. 651.)

In many respects, the position of attorney at law and peace officer is comparable, for both deal with large numbers of persons in sensitive and controversial aspects of their lives and both find it impossible to satisfy all persons on all occasions. Both are susceptible to the filing of complaints by persons with whom they have dealings. Both are subject to regulation and evaluation of their conduct by administrative bodies. We think it appropriate that both be made subject to comparable rules for discovery: complaints that have been rejected by the administrative agency for lack of merit are not discoverable, but complaints that have been investigated and substantiated are discoverable. We note one final point about Chronicle Pub. Co. v. Superior Court—there character as reflected by reputation was directly at issue, whereas here character is subordinate and evidentiary. Even with this far greater degree of relevancy, the discovery sought in Chronicle was denied.

Let a peremptory writ of mandate issue directing the superior court to quash the subpoena duces tecum and vacate its order of production.


1.  A declaration of Captain Robert D. Campbell, commander of the administrative services bureau, stated in part: ‘. . . [N]one of the information whatsoever obtained as the result of an internal investigation will be given, or in any way made available, to any prosecuting authority. In addition, no information is given to departmental personnel who may be investigating the same incident . . . in connection with a criminal prosecution.’

2.  We disregard the credibility argument in the declaration, because evidence of the character of the victim is not relevant to the credibility of defendant. Obviously, the credibility of defendant is established by his own character and not by someone else's. (Cf. Evid.Code, § 1101(c).)

3.  The concept of materiality finds expression in the Evidence Code in the phraseology ‘fact of consequence’ (§ 210).

4.  In a declaration filed with this court counsel for a codefendant estimates that the trial of the charges here (battery against a peace officer) will take approximately two months.

FLEMING, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.