State v. Smith

#27321-r-JMK
2016 S.D. 55
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MINNEHAHA COUNTY SHERIFF
MIKE MILSTEAD, Appellant,
and
STATE OF SOUTH DAKOTA Appellant,
v.
EMILY LOU SMITH, Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBIN J. HOUWMAN
Judge
****
SARA E. SHOW
KERSTEN A. KAPPMEYER
Minnehaha County State’s Attorney’s Office
Sioux Falls, South Dakota Attorneys for appellant
Minnehaha County
Sheriff Mike Milstead.
AARON MCGOWAN
Minnehaha County State’s Attorney
MATTHEW J. ABEL
Minnehaha County
Deputy State’s Attorney
Sioux Falls, South Dakota Attorneys for appellant
State of South Dakota.
BEAU J. BLOUIN
Minnehaha County
Public Defender’s Office
Sioux Falls, South Dakota Attorneys for appellee
Emily Lou Smith.
****
ARGUED ON
OCTOBER 5, 2015
OPINION FILED 07/27/16
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KERN, Justice
[¶1.] Defendant was arrested and charged with several offenses, including
three counts of simple assault against a law enforcement officer. Defendant served
a subpoena duces tecum on the county sheriff requesting “[a]ll disciplinary
records/reprimands/complaints” contained within the arresting officer’s personnel
file. The sheriff filed a motion to quash the subpoena, which the circuit court denied
in part. The court ordered the sheriff to produce portions of the arresting officer’s
personnel records from the past five years for in camera review. We granted the
sheriff’s petition for an intermediate appeal from the circuit court’s order. We
reverse.
Background
[¶2.] Minnehaha County Deputy Sheriff Adam Zishka arrested Emily Lou
Smith on September 30, 2014. She was later indicted for several offenses, including
three counts of simple assault against a law enforcement officer. In October 2014,
Smith served a subpoena duces tecum on Minnehaha County Sheriff Mike Milstead
requesting production of “[a]ll disciplinary records/reprimands/complaints in regard
to Deputy Adam Zishka from the Minnehaha County Sheriff[’s] Department.” 1
1. Smith also filed a motion to compel the production of discovery material
under Brady v. Maryland. 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963). Brady established a duty to produce to a defendant “evidence [that] is
material either to [his or her] guilt or to punishment.” Id. at 87, 83 S. Ct. at
1197. This duty includes the disclosure of material evidence affecting the
credibility of a witness “[w]hen the ‘reliability of a given witness may well be
determinative of guilt or innocence.’” Giglio v. United States, 405 U.S. 150,
153-54, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972) (quoting Napue v. Illinois,
360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959)). Evidence is
material for purposes of Brady only if there is a reasonable probability that
(continued . . .)
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[¶3.] On January 6, 2015, Sheriff Milstead filed a motion to quash the
subpoena, arguing it was “unreasonable and oppressive.” The court held a motions
hearing on January 13, 2015. A Minnehaha County deputy state’s attorney from
the civil division represented Sheriff Milstead and a deputy state’s attorney from
the criminal division represented the State. Smith argued that access to the
requested records was necessary for effective cross-examination under the Sixth
Amendment of the United States Constitution in order to present her theory of the
case. She informed the court that she did not claim to have acted in self-defense.
Rather, she contended that Deputy Zishka used excessive force against her during
the arrest. Both parties urged the circuit court, when ruling on the motion to
quash, to apply a test that would analyze the relevancy, admissibility, and
specificity of the records. In regard to specificity, Sheriff Milstead argued that the
subpoena was overbroad and was a “fishing expedition.” Sheriff Milstead also
argued that, even if produced, the evidence would be inadmissible under the rules of
evidence.
[¶4.] The circuit court denied in part Sheriff Milstead’s motion to quash the
subpoena. The court ordered Sheriff Milstead to produce “all of Deputy Zishka’s
personnel records which contain ‘disciplinary records, reprimands, and/or
____________________
(. . . continued)
the result of the proceeding would have been different if the material was
disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682, 105 S.
Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). Sheriff Milstead’s counsel advised
the court that no Brady material existed but that if any did exist it would be
turned over to the State. At a subsequent motions hearing, the circuit court
denied the motion. Regardless, Smith did not file a notice of review from the
denial of the court’s motion; therefore, we do not address whether the
personnel files of law enforcement officers are discoverable under Brady.
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complaints’ for . . . an in camera review.” Finding that the subpoena “lack[ed]
specificity” and was “not narrowly tailored,” the court limited the production to
records generated within the last five years.
[¶5.] On January 19, 2015, Sheriff Milstead petitioned this Court for an
intermediate appeal from the circuit court’s order. We granted the request on April
6, 2015. The State, through the Minnehaha County State’s Attorney’s Office, filed a
brief in support of Sheriff Milstead’s position.
[¶6.] On appeal, Sheriff Milstead raises two issues:
1. Whether the circuit court erred in holding that a law
enforcement officer’s personnel file is discoverable under SDCL
23A-14-5 (Rule 17(c)).
2. Whether the circuit court erred in ordering an in camera review
of Deputy Zishka’s personnel file, including disciplinary records,
complaints, and reprimands from the last five years.
Standard of Review
[¶7.] Ordinarily, “[w]e review the [circuit] court’s rulings on discovery
matters under an abuse of discretion standard.” Anderson v. Keller, 2007 S.D. 89,
¶ 5, 739 N.W.2d 35, 37. However, the question whether the circuit court erred when
it interpreted SDCL 23A-14-5 to permit discovery raises a question of statutory
interpretation and application, which we review de novo. Deadwood Stage Run,
LLC v. S.D. Dep’t of Revenue, 2014 S.D. 90, ¶ 7, 857 N.W.2d 606, 609.
Analysis
1. Whether the circuit court erred in holding that a law enforcement
officer’s personnel file is discoverable under SDCL 23A-14-5
(Rule 17(c)).
[¶8.] The question whether a law enforcement officer’s personnel records are
subject to discovery in a criminal prosecution is a question of first impression before
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this Court. 2 Smith contends that these records, although confidential, are relevant
to the primary issue in this case: “whether Deputy Zishka or Smith was the true
aggressor.” The records, she also argues, are necessary to present her defense and
fully cross-examine the State’s witnesses.
[¶9.] South Dakota lacks detailed legislation specific to the production of
law enforcement personnel records. 3 Accordingly, we look to statutes addressing
personnel records generally and the constitutional principles involved in production
2. Other jurisdictions addressed this question in earnest beginning as early as
the 1970s. The jurisdictions passed legislation and developed jurisprudence
related to the application of their statutory schemes. For a discussion on the
plethora of issues regarding the production of personnel records and the
approaches taken by varying state and federal jurisdictions, see Jeffrey F.
Ghent, Annotation, Accused’s Right to Discovery or Inspection of Records of
Prior Complaints Against, or Similar Personnel Records of, Peace Officer
Involved in the Case, 86 A.L.R. 3d 1170 (1978), Jonathan Abel, Brady’s Blind
Spot: Impeachment Evidence in Police Personnel Files & the Battle Splitting
the Prosecution Team, 67 Stan. L. Rev. 743 (2015), Lis Wiehl, Keeping Files
on the File Keepers: When Prosecutors are Forced to Turn Over the Personnel
Files of Federal Agents to Defense Lawyers, 72 Wash. L. Rev. 73 (1997).
3. Two of the nation’s biggest jurisdictions—California and New York—have
developed detailed bodies of legislation to govern this question. The
Supreme Court of California in 1974 addressed the issue in Pitchess v.
Superior Court authorizing the release of personnel records of law
enforcement officers to civil litigants and criminal defendants. 522 P.2d
305, 311 (Cal. 1974). The California Legislature, in response to the
opinion, defined personnel records, codified the privileges surrounding
them, and set out detailed procedures for discovery of the records. See,
e.g., Cal. Penal Code § 832.7; Cal. Evid. Code §§ 1043–1045. For a
summary of California’s procedures, see City of Santa Cruz v. Mun. Court,
776 P.2d 222 (Cal. 1989), Warrick v. Superior Court, 112 P.3d 2 (Cal.
2005). Likewise, the State of New York has a statutory scheme in which
the personnel files of police officers are confidential and not subject to
disclosure except upon a specified showing by a criminal defendant. See
N.Y. Civ. Rights Law § 50-a (McKinney 2014). See also Gary R. DeFilippo,
To Disclose or Not to Disclose: A Discussion of Civil Rights Law § 50-a,
Protecting Law Enforcement Officers’ Personnel Records from Unwarranted
Review, 14 J. Suffolk Acad. L. 103, 105 (2000).
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of confidential materials. SDCL 1-27-1.1 broadly defines public records as including
personnel records. Although public records are generally open to inspection and
copying pursuant to SDCL 1-27-1.1, certain public records are not. These excluded
records include “[p]ersonnel information other than salaries and routine directory
information.” SDCL 1-27-1.5(7).
[¶10.] Although personnel records are statutorily protected, that protection is
not absolute. A defendant has a fundamental right to proffer a defense. State v.
Huber, 2010 S.D. 63, ¶ 37, 789 N.W.2d 283, 294. This includes the right to call
witnesses on one’s behalf and to confront and cross-examine the prosecution’s
witnesses for the purpose of challenging their testimony. See U.S. Const. amends.
VI, XIV; S.D. Const. art. VI, § 7; State v. Beckley, 2007 S.D. 122, ¶ 9, 742 N.W.2d
841, 844. It is a basic tenant “of American jurisprudence that a statutory provision
never be allowed to trump a Constitutional right.” State v. Karlen, 1999 S.D. 12,
¶ 39, 589 N.W.2d 594, 602-03. In Pennsylvania v. Ritchie, 480 U.S. 39, 42-43, 107 S.
Ct. 989, 993-94, 94 L. Ed. 2d 40 (1987), and Davis v. Alaska, 415 U.S. 308, 309, 94
S. Ct. 1105, 1107, 39 L. Ed. 2d 347 (1974), the Supreme Court of the United States
addressed this interplay between the important constitutional rights of an accused
and public policy concerns regarding the protection of documents.
[¶11.] In Davis, the Court held that a defendant’s right to effective cross-
examination under the Confrontation Clause required that a defendant be able to
question an adverse witness regarding the witness’s confidential juvenile record.
415 U.S. at 309, 94 S. Ct. at 1107. The Court stated, “The State’s policy interest in
protecting the confidentiality of a juvenile offender’s record cannot require yielding
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of so vital a constitutional right as the effective cross-examination for bias of an
adverse witness.” Id. at 320, 94 S. Ct. at 1112.
[¶12.] Similarly, in Ritchie, the Court considered “whether and to what
extent a State’s interest in the confidentiality of its investigative files concerning
child abuse must yield to a criminal defendant’s Sixth and Fourteenth Amendment
right to discover favorable evidence.” 480 U.S. at 42-43, 107 S. Ct. at 993-94.
Ritchie was charged with the rape of his minor child and had subpoenaed a file held
by Child and Youth Services (CYS) containing information about the charge and
other records. CYS refused to produce the records, even for an in camera review,
arguing that they were privileged under Pennsylvania law. The Ritchie Court held
that the Confrontation Clause does not create “a constitutionally compelled rule of
pretrial discovery.” Id. at 52, 107 S. Ct. at 999. Instead, it affords criminal
defendants two specific protections: “the right physically to face those who testify
against him, and the right to conduct cross-examination.” Id. at 51, 107 S. Ct. at
998.
[¶13.] Although the Confrontation Clause provides individuals with “the
right to cross-examine those who testify against” them, it is well recognized “that
the right to cross-examine is not absolute.” Karlen, 1999 S.D. 12, ¶¶ 37-38, 589
N.W.2d 594, 602 (citing Ritchie, 480 U.S. at 53, 107 S. Ct. at 999). An individual is
only guaranteed “an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense
might wish.” Ritchie, 480 U.S. at 53, 107 S. Ct. at 999 (emphasis added) (quoting
Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985)).
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The Court recognized the strong “public interest in protecting this type of sensitive
information” but also noted that such interest does not necessarily prevent
disclosure in all circumstances. Id. at 57, 107 S. Ct. at 1001. Ultimately, the Court
decided that due process requires an in camera review of the privileged file,
especially when the discovery sought was material. In defining material evidence,
the Ritchie Court stated:
[E]vidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in
the outcome.
Id. at 57, 107 S. Ct. at 1001 (quoting Bagley, 473 U.S. at 682, 105 S. Ct. at 3383).
[¶14.] Although this Court has not previously addressed personnel records,
we have analyzed requests for production of privileged documents by subpoena
duces tecum. In Karlen, the defendant was convicted at trial of several felonies,
including rape in the second degree against A.J. 1999 S.D. 12, ¶ 4, 589 N.W.2d at
597. Prior to trial, Karlen sought A.J.’s counseling records, which were protected by
the physician-patient privilege. Karlen argued that, at a minimum, such “records
should have been reviewed in camera to determine whether exculpatory or
contradictory information was present.” Id. ¶ 28, 589 N.W.2d at 600. Karlen made
a specialized showing contending: (1) that the evidence at trial showed that the
victim had provided inconsistent statements regarding the incidents with which
Karlen was charged, and (2) that the counseling records may contain evidence
which would affect A.J.’s credibility and/or may exonerate Karlen.
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[¶15.] We reversed the circuit court, relying in part upon Ritchie, finding that
in light of the specific facts of the case, Karlen may have been denied information
crucial to his defense. Karlen, 1999 S.D. 12, ¶ 46, 589 N.W.2d at 605. In concluding
that Karlen was entitled to production of A.J.’s counseling records, we found that
Karlen had made a sufficient showing that the evidence he sought was material and
not for the purpose of a generalized attack upon A.J.’s credibility. The requested
evidence was “directed toward revealing possible biases, prejudices, or ulterior
motives as they may relate directly to issues or personalities in the case at hand.”
Id. ¶ 44, 589 N.W.2d at 604 (quoting State v. Sprik, 520 N.W.2d 595, 600 (S.D.
1994)). Finding that Karlen may have been denied his right to effectively cross
examine A.J., we ordered production of the records for in camera review by the
circuit court. We directed the court to release only the relevant portions of the
records to the parties. Thus, we have previously ordered the production of even
statutorily privileged materials for in camera review when principles of due process
so require. However, we did not discuss the parameters for discovery of documents
under SDCL 23A-14-5 (Rule 17(c)) as the issue was not raised.
[¶16.] It is against this backdrop that we consider the question whether the
personnel records of law enforcement officers are discoverable under SDCL 23A-14-
5 (Rule 17(c)). The rules of discovery in criminal cases are set forth in SDCL
chapter 23A-13 (Rule 16). The rules governing the subpoena and attendance of
witnesses are set forth in SDCL chapter 23A-14 (Rule 17). SDCL 23A-14-5 (Rule
17(c)) provides for the production of documents and objects and is substantially
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similar to Federal Rule of Criminal Procedure 17(c)(1)-(2). 4 We routinely look to the
decisions of other courts for analytical assistance when a South Dakota statute is
“substantially the same as its federal counterpart,” as such decisions are
particularly instructive. See, e.g., Jacquot v. Rozum, 2010 S.D. 84, ¶ 15, 790 N.W.2d
498, 503. As SDCL 23A-14-5 5 is substantially similar to Federal Rule of Criminal
4. Federal Rule of Criminal Procedure 17(c) provides,
(c) Producing Documents and Objects.
(1) In General. A subpoena may order the witness to
produce any books, papers, documents, data, or other
objects the subpoena designates. The court may direct
the witness to produce the designated items in court
before trial or before they are to be offered in evidence.
When the items arrive, the court may permit the parties
and their attorneys to inspect all or part of them.
(2) Quashing or Modifying the Subpoena. On motion
made promptly, the court may quash or modify the
subpoena if compliance would be unreasonable or
oppressive.
(3) Subpoena for Personal or Confidential Information
About a Victim. After a complaint, indictment, or
information is filed, a subpoena requiring the production
of personal or confidential information about a victim may
be served on a third party only by court order. Before
entering the order and unless there are exceptional
circumstances, the court must require giving notice to the
victim so that the victim can move to quash or modify the
subpoena or otherwise object.
5. SDCL 23A-14-5 provides,
A subpoena may also command the person to whom it is directed
to produce books, papers, documents, or other objects designated
therein. A court on motion made promptly may quash or modify
a subpoena if compliance would be unreasonable or oppressive.
A court may direct that books, papers, documents, or objects
designated in a subpoena be produced before the court at a time
prior to the trial or prior to the time when they are to be offered
in evidence and may upon their production permit the books,
(continued . . .)
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Procedure 17(c)(1)-(2), we examine the seminal cases addressing the use of
subpoenas and the tests which have been developed.
[¶17.] The Supreme Court of the United States first addressed production of
documents under Rule 17(c) in Bowman Dairy Co. v. United States, where it
considered the denial of a motion to quash a subpoena duces tecum. 341 U.S. 214,
217, 71 S. Ct. 675, 677, 95 L. Ed. 879 (1951). In its analysis, the Court
differentiated Federal Rule of Criminal Procedure 16 from Rule 17(c). “Rule 16
deals with documents and other materials that are in the possession of the
Government and provides how they may be made available to the defendant for his
information.” Id. at 219, 71 S. Ct. at 678. Rule 17(c), in contrast, provides a method
for the defendant to subpoena such documents and materials for his or her personal
use if they are not put into evidence by the government. However, “Rule 17(c) was
not intended to provide an additional means of discovery. Its chief innovation was
to expedite the trial by providing a time and place before trial for the inspection of
the subpoenaed materials.” Id. at 220, 71 S. Ct. at 679. Furthermore, Rule 17 was
not intended “to give a right of discovery in the broadest terms.” Id. To construe
Rule 17 as a generalized tool for discovery would render Rule 16’s requirements
“nugatory and meaningless.” United States v. Carter, 15 F.R.D. 367, 369 (D.D.C.
1954); see also United States v. Binday, 908 F. Supp. 2d 485, 492 (S.D.N.Y. 2012).
Further, a court may “control the use of Rule 17(c) . . . by its power to rule on
motions to quash or modify.” Bowman, 341 U.S. at 220, 71 S. Ct. at 678.
____________________
(. . . continued)
papers, or documents, or objects or portions thereof to be
inspected by the parties and their attorneys.
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[¶18.] Roughly one year later, in United States v. Iozia, the United States
District Court for the Southern District of New York held that “there must be a
showing of good cause to entitle the defendant to production and inspection of
documents under Rule 17(c).” 13 F.R.D. 335, 338 (S.D.N.Y. 1952). The court
identified a four-part test to assist trial courts in ruling on requests under Rule
17(c). The test required the defendant to establish:
(1) That the documents are evidentiary and relevant;
(2) That they are not otherwise procurable by the defendant
reasonably in advance of trial by the exercise of due diligence;
(3) That the defendant cannot properly prepare for trial
without such production and inspection in advance of trial and
the failure to obtain such inspection may tend unreasonably to
delay the trial;
(4) That the application is made in good faith and is not
intended as a general fishing expedition.
Id.
[¶19.] In 1974, the Supreme Court of the United States again addressed the
use of subpoenas under Rule 17(c) in United States v. Nixon, 418 U.S. 683, 94 S. Ct.
3090, 41 L. Ed. 2d 1039 (1974). The prosecutor filed a motion under Rule 17(c) for a
subpoena duces tecum ordering the production of certain tapes and documents
relating to “precisely identified” meetings and conversations involving the President
and others. Id. at 687-88, 94 S. Ct. at 3097. The Court discussed the factors set
forth in Iozia and distilled them, requiring the prosecutor to “clear three hurdles: (1)
relevancy; (2) admissibility; [and] (3) specificity” for production of the documents.
Id. at 700, 94 S. Ct. at 3103. In denying the President’s motion to quash the
subpoena, the Court noted that “[a] subpoena for documents may be quashed if
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their production would be ‘unreasonable or oppressive,’ but not otherwise.” Id. at
698, 94 S. Ct. at 3103. The Court found that the prosecutor was permitted to obtain
the requested audio tapes because he had shown “there was a sufficient likelihood
that each of the tapes contain[ed] conversations relevant to the offenses charged in
the indictment.” Id. at 700, 94 S. Ct. at 3103. The prosecutor met this burden by
offering sworn testimony of participants in the recorded conversations or by giving
reasons that permitted a rational inference of relevance, as well as by making a
sufficient preliminary showing of admissibility.
[¶20.] The Nixon test is well reasoned. Many state and federal jurisdictions
have adopted the test, including the Eighth Circuit Court of Appeals, providing
numerous decisions to reference for guidance. 6 We adopt the three-part test set
forth in Nixon, which obligates the requesting party to establish that the desired
evidence is (1) relevant, (2) admissible, and (3) requested with adequate specificity.
[¶21.] Sheriff Milstead and the State argue that upon application of the
Nixon test, no court could reasonably conclude that the subpoenaed personnel
records should be produced for an in camera review. In contrast, Smith contends
that the circuit court did not abuse its discretion in ordering an in camera review as
she satisfied the four-part test set forth in Iozia. Smith concedes that the records
6. See United States v. Stevenson, 727 F.3d 826 (8th Cir. 2013); United States v.
Hardy, 224 F.3d 752, 755 (8th Cir. 2000); United States v. Hang, 75 F.3d
1275, 1283 (8th Cir. 1996); United States v. Arditti, 955 F.2d 331, 346 (5th
Cir. 1992), cert. denied, 506 U.S. 998, 113 S. Ct. 597, 121 L. Ed. 2d 534
(1992); United States v. Miller, 660 F.2d 563, 565 n.1 (5th Cir. 1981); United
States v. Marshall, CR. 08-50079-02, 2010 WL 1409445, *1-2 (D.S.D. Mag.
Div. April 1, 2010); United States v. Stein, 488 F. Supp. 2d 350, 366 (S.D.N.Y.
2007); United States v. Gel Spice Co., Inc., 601 F. Supp. 1214 (D.C.N.Y. 1985).
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are not open to inspection and copying by the public. But she claims the records are
discoverable as they are relevant to the primary issue in this case—whether the
true aggressor was Deputy Zishka or Smith. These records, she argues, may be
necessary to afford her the opportunity to present a defense and fully cross-examine
the State’s witnesses. We review the parties’ arguments in light of the Nixon test.
a. Relevancy
[¶22.] “Evidence is relevant if: (a) It has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) The fact is of
consequence in determining the action.” SDCL 19-19-401. In determining the
relevancy of law enforcement personnel files, we find persuasive the often-cited
reasoning of the Court of Appeals of New York in People v. Gissendanner, 399
N.E.2d 924 (N.Y. 1979). In Gissendanner, the court reviewed a lower court’s denial
of a defendant’s request to issue a subpoena for the police personnel files of
prosecution witnesses. In performing its analysis, the court discussed the
competing constitutional guarantees of compulsory process and confrontation with
the need to safeguard the confidentiality of personnel records. The court concluded,
that before production of such documents, a defendant must set forth a good-faith,
factual predicate demonstrating that it is reasonably likely that the contents of the
personnel file are material and “directly bear on the hard issue of guilt or
innocence[.]” Id. at 928. The court explained that “when a defendant shows a
likelihood that the witness’ prior criminal or disciplinary record may provide a
motive to falsify” or “when prior bad acts allegedly contained within disciplinary or
personnel records bear peculiar relevance to the circumstances of the defendant’s
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case, detailed cross-examination and disclosure, usually after an in camera
inspection, have been permitted.” Id. Access to personnel files however “has been
denied [where] the defendant failed to demonstrate any theory of relevancy and
materiality, but, instead, merely desired the opportunity for an unrestrained foray
into confidential records in the hope that the unearthing of some unspecified
information would enable him to impeach the witness.” Id.
[¶23.] A number of courts across the country similarly require that the
defendant establish a good-faith, factual predicate making it reasonably likely that
the records would yield information which will be relevant and material to the
defense. See State v. Jones, 59 A.3d 320, 333 (Conn. App. Ct. 2013), aff’d, 102 A.3d
694 (Conn. 2014) (stating information should be specific and should set forth the
issue in the case to which the personnel information will relate); 7 People v. Peters,
972 N.Y.S.2d 145 (N.Y. App. Div. 2013); State v. Blackwell, 845 P.2d 1017, 1019
(Wash. 1993) (en banc). As the Appellate Court of Connecticut noted in Jones, “A
showing sufficient to warrant an in camera review of a personnel file requires more
than mere speculation.” 59 A.3d at 333. See also State v. Schwartz, 552 P.2d 571,
574 (Or. Ct. App. 1976) (finding defense attorney’s argument that “he had heard of a
similar incident involving one of the same officers” to be an insufficient showing);
State v. Sagner, 525 P.2d 1073, 1077 (Or. Ct. App. 1974) (holding that counsel’s
7. The Supreme Court of Connecticut in State v. Januszewski, affirmed an order
for in camera review of an officer’s personnel file to verify knowledge, based
on information and belief, that the officer was the subject of prior disciplinary
actions. 438 A.2d 679 (Conn. 1980), cert. denied, 453 U.S. 922, 101 S. Ct.
3159, 69 L. Ed. 2d 1005 (1981), overruled in part on other grounds by State v.
Ray, 966 A.2d 148 (Conn. 2009).
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“pure conjecture” of officer’s suspected disciplinary problems was insufficient to
warrant production).
[¶24.] The Supreme Court of Washington adopted the requirement of a
factual predicate in Blackwell. 845 P.2d at 1022. Defendant sought production of
officers’ service records arguing they could lead to exculpatory evidence of improper
police conduct and/or arrests based on race and excessive force. In reversing the
trial court for ordering an in camera review, the supreme court noted that “[d]efense
counsels’ broad, unsupported claim that police officers’ personnel files may lead to
material information does not justify automatic disclosure of the documents.” Id. at
1021 (citing State v. Kaszubinski, 425 A.2d 711 (N.J. Super. Ct. Law Div. 1980)).
The court held that the “defendant must advance some factual predicate which
makes it reasonably likely the requested file will bear information material to his or
her defense. A bare assertion that a document ‘might’ bear such fruit is
insufficient.” Id. at 1022.
[¶25.] We endorse the analysis in Gissendanner and Blackwell and require
that Smith establish a factual predicate showing that it is reasonably likely that the
requested file will bear information both relevant and material to her defense. This
is consistent with the approach we took in Karlen, where we required a case-specific
showing of material evidence as a prerequisite for in camera review.
[¶26.] When ruling on Smith’s request, the circuit court acknowledged that it
was “having a very difficult time understanding how, even if there was information
contained in the personnel files, how any of it would be relevant under [SDCL] 19-
14-10.” We agree that Smith’s showing of relevance is lacking. Smith simply
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argues that Deputy Zishka used unnecessary force against her and that the
requested information in the personnel records might produce information useful to
impeach his credibility. It is well established however that “the need for evidence to
impeach witnesses is [generally] insufficient to require its production in advance of
trial.” Nixon, 418 U.S. at 701, 94 S. Ct at 3104. Smith submitted no affidavit, no
evidence of prior conduct, no eye-witness corroboration, no statement upon
information or belief, or offer of proof. Her mere allegations are insufficient to
subject the law enforcement officer’s personnel records to a general, non-specific
fishing expedition. Accordingly, she has failed to clear the first hurdle of the three-
part test.
b. Specificity
[¶27.] The requirement of specificity “ensures that the subpoenas are used
only to secure for trial certain documents or sharply defined groups of documents.”
United States v. Jackson, 155 F.R.D. 664, 667 (D. Kan. 1994) (citing United States v.
Crosland, 821 F. Supp. 1123, 1129 (E.D. Va. 1993)). It also “prevents a subpoena
duces tecum . . . from being used as a ‘fishing expedition to see what may turn up.’”
United States v. Sellers, 275 F.R.D. 620, 624 (D. Nev. 2011) (quoting Bowman, 341
U.S. at 221, 71 S. Ct. at 679). Of the three requirements set forth in Nixon,
“[s]pecificity is the hurdle on which many subpoena requests stumble.” United
States v. Ruedlinger, 172 F.R.D. 453, 456 (D. Kan. 1997).
[¶28.] Smith’s subpoena requests “[a]ll disciplinary records/reprimands/
complaints in regard to Deputy Adam Zishka from the Minnehaha County
Sheriff[’s] Department.” While the subpoena did identify the types of documents,
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which Smith requested from Deputy Zishka’s personnel record, it failed to limit the
requested documents to a particular time frame. Further, the request for “all”
disciplinary records does little to narrow the scope of the subpoena. Such broad
language could require production of completely irrelevant materials and falls far
short of the specificity necessary for production. See Arditti, 955 F.2d at 345.
Smith was unable to specify the information contained in or believed to be
contained in the requested documents. As the court noted in United States v.
Noriega, “If the moving party cannot reasonably specify the information contained
or believed to be contained in the documents sought but merely hopes that
something useful will turn up, this is a sure sign that the subpoena is being
misused.” 764 F. Supp. 1480, 1493 (S.D. Fla. 1991).
[¶29.] Smith has failed to establish that the subpoena satisfies the necessary
requirement of specificity. The “specificity and relevance elements require more
than the title of a document and conjecture as to its contents.” Hardy, 224 F.3d at
755 (quoting Arditti, 955 F.2d at 346). A subpoena may not issue based upon a
party’s “mere hope” that it will result in the production of favorable evidence.
Hang, 75 F.3d at 1283; United States v. Libby, 432 F. Supp. 2d 26, 31-32 (D.D.C.
2006). To hold otherwise would permit review of personnel records of arresting
officers in every case involving an assault upon an officer.
c. Admissibility
[¶30.] Smith as the moving party must also make a preliminary showing that
the requested material contains admissible evidence regarding the offenses charged.
Nixon, 418 U.S. at 700, 94 S. Ct. at 3104. Sheriff Milstead argues that an in camera
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review of documents, where “there is no likelihood that the requested information
ever becomes relevant or admissible in the underlying criminal case, . . . is
unnecessary and burdensome.”
[¶31.] The parties spend considerable time in their briefs to this Court
arguing about the potential admissibility of various types of evidence under Federal
Rules of Evidence 404(a), 404(b), 405, and 608. As we have found that Smith has
failed to satisfy the first two prongs of the Nixon test, we decline to address this
factor.
[¶32.] While the circuit court correctly determined that in certain
circumstances personnel records of law enforcement officers are subject to review, it
erred when it ordered production of the records in this case. In fairness to the
circuit court, it was faced with a question of first impression and required to resolve
the issue without direction from this Court as to what standard should be applied.
A defendant must satisfy the Nixon test. Without satisfaction of the Nixon test,
production of the requested records, including for the purposes of in camera review,
is improper.
2. Whether the circuit court erred in ordering an in camera review
of Deputy Zishka’s personnel file, including disciplinary records,
complaints, and reprimands for the last five years.
[¶33.] The circuit court erred in ordering an in camera review of the
personnel records in this case. This is because Smith failed to satisfy the
requirements of the Nixon test. In the future, if a court should determine that a
party has made an adequate showing under Nixon, an in camera review by the
circuit court is a necessary step before release of any records to the parties. Sheriff
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Milstead contends that, if an in camera review occurs, “there is nothing to prevent
the trial court from providing the documents to opposing counsel without review.”
We affirm the important public policy interest in protecting the privacy and safety
of law enforcement officers by preventing unfettered access to the release of
information contained within their personnel files. 8 Courts, however, routinely
order production of confidential and even statutorily privileged documents for in
camera review in civil and criminal proceedings. And courts are authorized to
impose necessary, effective, and strict restrictions on the use of these records.
Bowman, 341 U.S. at 220, 71 S. Ct. at 678.
[¶34.] We have discussed the parameters for in camera reviews in several
cases involving production of alleged victims’ psychological records. In Maynard v.
Heeren, we considered an intermediate appeal from a circuit court’s order requiring
production of a plaintiff’s psychotherapy records. 1997 S.D. 60, ¶ 1, 563 N.W.2d
830, 832. Plaintiff’s claims involved negligent misrepresentation, slander, invasion
of privacy, and intentional infliction of emotional distress. In ordering full
disclosure of the records, we required that an “in camera hearing must be held in
the presence of both parties, both parties must have access to the contested
information, and both parties must be allowed to make their record.” Id. ¶ 15, 563
N.W.2d at 836. Two years later we adopted a more circumscribed approach. See
Karlen, 1999 S.D. 12, ¶¶ 45-46, 589 N.W.2d at 604-05. We directed that upon
8. This sentiment was well expressed in People v. Norman, where the court
stated “that it is not a condition of a police officer’s employment that his life
story should be the subject of perusal by judge, prosecutor and defense
counsel each time he makes an arrest.” 350 N.Y.S.2d 52, 60 (N.Y. Sup. Ct.
1973).
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remand the in camera review should be conducted solely by the circuit court, with
only the relevant portions of the record being turned over to the parties for review.
We continue to adhere to the more circumscribed approach because it balances the
privacy concerns of the officer while protecting the rights of the accused.
[¶35.] Should an in camera review be deemed proper under Nixon, it is
within the sound discretion of the circuit court to determine what restrictions are
appropriate for use and dissemination of the records. If the court concludes that
portions of the records are discoverable, the court shall place “reasonable
restrictions upon dissemination and use of the sought-after material.” Maynard,
1997 S.D. 60, ¶ 15, 563 N.W.2d at 835. The disclosure of such information must be
carefully tailored to the legitimate need for the information in the case.
Januszewski, 438 A.2d at 694. As the Court found in Nixon, “in camera inspection
of evidence is always a procedure calling for scrupulous protection against any
release or publication of material not found by the court, at that stage, probably
admissible in evidence and relevant to the issues of the trial for which it is sought.”
418 U.S. at 714, 94 S. Ct. at 3110-11 (emphasis added). The circuit court is
equipped with necessary enforcement tools, such as Rule 11, “to assure that no
privileged information is misused by the discovering litigant.” Maynard, 1997 S.D.
60, ¶ 17, 563 N.W.2d at 836; SDCL 15-6-11.
Conclusion
[¶36.] The personnel records of law enforcement officers are confidential, but
not shielded from discovery when a constitutional right of an accused is implicated.
Even so, Rule 17(c) was not intended as a tool for discovery in criminal cases. When
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a party seeks production of documents under Rule 17(c), that party must first
establish that the requested evidence is (1) relevant, (2) admissible, and (3)
requested with adequate specificity. A circuit court may modify or quash a
subpoena if it determines production of the documents is oppressive or
unreasonable. If the requisite showing for production of documents is made, the
circuit court shall order the documents produced for in camera review. If the court
determines that portions of the record are discoverable, it shall carefully tailor
necessary restrictions on the use and dissemination of the records to maintain
privacy.
[¶37.] As Smith failed to meet her burden of establishing the elements of the
Nixon test, the circuit court erred in ordering Sheriff Milstead to produce Deputy
Zishka’s personnel records for in camera review. We reverse.
[¶38.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON and
WILBUR, Justices, concur.
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