#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
#27321

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 . . .)
                                             -1-
#27321

[¶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.


                                          -2-
#27321

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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#27321

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).


                                          -4-
#27321

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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#27321

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)).


                                           -6-
#27321

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.




                                          -7-
#27321

[¶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




                                          -8-
#27321

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 . . .)
                                            -9-
#27321

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.

                                          -10-
#27321

[¶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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#27321

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).


                                           -12-
#27321

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).

                                            -14-
#27321

“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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