For the Defense - Volume 2, Issue 4 - 2017 - 28

IAD complaints, including case number, date of
complaint, and nature of complaint); Police Board
of Inquiry ("PBI") Disciplinary Record Information
form (a list of all cases in which an officer
appeared before the PBI); Concise Officer History
(chronological history of the officer including all
IAD complaints, PBI cases, use-of-force incidents,
and changes in employee classifications); and
Use-of-Force forms (completed for every incident
in which the officer is reported to have used force
in the course of an encounter with a civilian).
Once one knows what sort of documents
exist, one can request them by asking the
prosecutor for them, filing a motion with the
court to compel the prosecutor to produce them,
or serving a subpoena duces tecum. Of course,
opposition should be expected. In addition to
asserting that Brady and Kyles entitle you to such
material, consider the following arguments.21
You are entitled to such materials, and they
may be admissible at trial, to show bias and
motive on the part of any testifying officer.22
The prior bad acts of the officer may be
admissible under Rule 404(b)23 to show motive,
intent, opportunity or modus operandi. For
example, if an officer claims that a defendant
was injured by accident, prior acts of assaulting
defendant may be admissible to show that the
officer injured the defendant intentionally.
In responding to motions to quash a subpoena duces tecum, you must be prepared to
argue why your request is limited enough that its
scope is reasonable and not unduly burdensome,
that there is a factual basis to support your

subpoena and that your subpoena does not
violate the public interest.24 You should be prepared to indicate, as specifically as possible, both
why you believe the officer has a problematic
disciplinary history and how such information is
relevant to your case.
Our clients always deserve a zealous defense.
But there are times when they also deserve an
affirmative claim brought on their behalf because
they have been victims of police misconduct.
Hopefully, this article has provided you with some
idea of how to counsel your client in such situations, what potential civil claims may exist for him
or her down the road, and how you may investigate and obtain discovery in the criminal case that
would be helpful, not just for the criminal case,
but in evaluating potential civil claims.

Notes
1.
2.

3.
4.

Heck v. Humphrey, 512 U.S. 477 (1994).
Gilles v. Davis, 427 F.3d 197, 211 (3d Cir. 2005) (holding
that ARD is not considered a "favorable termination"
under Heck and plaintiff's claims under § 1983 were
therefore barred).
Fields v. City of Philadelphia, 862 F.3d 535 (3d Cir. 2017).
Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 217 (6th
Circ.)(no probable cause for retaliatory prosecution of
plaintiff who called officer a "son of a bitch" and a "fat
slob"; First Amendment requires that police officers
tolerate coarse criticism and the Constitution prohibits
states from criminalizing conduct that disturbs solely
police officers).

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About the Author
Susan M. Lin is a partner at the civil rights and criminal defense law firm of Kairys,
Rudovsky, Messing, Feinberg & Lin. A former Philadelphia and federal public defender,
Susan entered private practice to effectuate broader reform for the benefit of her clients.
Susan handles criminal defense trials and appeals in state and federal court, as well as civil
rights cases against police and prison officials.

For The Defense | Vol. 2, Issue 4

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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017