Last year I was contacted by an investigative reporter for USA TODAY, Steve Reilly. In his initial email, he wrote,
“I’m working on a months-long investigation for USA TODAY regarding deficient Brady disclosure policies and procedures of many law enforcement agencies. Our investigation found thousands of names missing from Brady lists nationwide and deficient Brady disclosure policies which fall well short of IACP’s model policy.”
We talked on the phone. He was particularly interested in whether I thought officers across the country really understand their Brady obligations. He said he would likely have a series in USA TODAY on Brady and law enforcement. I haven’t seen it yet, but if the media is investigating alleged “deficiencies” in this area, it behooves us to discuss the subject.
Most officers have heard of Brady/Giglio material. Over 50 years ago, the Supreme Court held in Brady v. Maryland that prosecutors must disclose any exculpatory (aka favorable) evidence to the accused that is “material” to his guilt or punishment. Later, in Giglio v. U.S., the Court ruled exculpatory evidence also includes information that could be used to impeach the credibility of prosecution witnesses, including officers.[At the end of this article are links to Brady, Giglio and other relevant Supreme Court decisions, as well as other resources.]
Brady/Giglio obligations have serious ramifications for cops and prosecutors. Because prosecutors have an affirmative duty to seek out exculpatory evidence, law enforcement has a duty to collect it and turn it over to the prosecutor.
Possible consequences for violating these duties can include:
A continuance of the case; Dismissal of the case; Reversal of a conviction; Findings of contempt by the court against prosecutors or police; Imposition of costs incurred by the defense; Civil liability for officers and their agencies under federal civil rights claims; Prosecutors may face disciplinary action or disbarment; Officers may end up on a prosecution office’s “Brady List” – a list of witnesses subject to impeachment evidence that must be disclosed to the defense – with varying job ramifications, including possible termination; Front-page news stories about prosecutor’s and police violations of their duty. Brady complexities
Despite how long Brady and its progeny have been around, there’s much confusion interpreting and implementing the Supreme Court’s concepts, often around two key questions:
1. When is exculpatory evidence “material?”
The Court said exculpatory evidence is material “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. That leaves a lot to interpretation and prognostication by prosecutors, officers and their departments, and the courts. How do you implement this legal construct into a workable policy?
2. What evidence can be used to impeach a witness?
Under the Federal Rules of Evidence (FRE), and most states’ rules, witnesses may be impeached a number of ways, including with:
Evidence bearing on their untruthfulness; Certain prior criminal convictions; Prior inconsistent statements; Evidence of bias.
If the officer’s use of force is an issue, evidence of prior excessive use of force may be relevant to impeach the officer.
The rules raise many questions:
Must a department and prosecutor turn over unsubstantiated allegations of an officer’s untruthfulness? What if they were substantiated but not proven by the applicable standard of proof? Similarly, if a case involves a question about the officer’s use of force, must any and all UOF complaints against the officer be disclosed, or only substantiated or proven ones?
The answers among and within police departments, prosecutors’ offices, legislatures and courts are inconsistent. Some jurisdictions have yet to address them. Some legislatures and courts have restricted access to officers’ personnel files even by the prosecution. Others are calling for more access.
If legislatures, courts and prosecutors can’t agree on what Brady requires, is it any wonder officers and police departments are uncertain?
What to do?
I’ve read the three DOJ memoranda linked at the end of this article. They came about after some Brady violations in high-profile cases garnered wide media attention, judicial outrage, congressional inquiry and cases being dismissed. These guides are long and complicated.
As a former state and federal prosecutor my Brady/Giglio policy was:
If I was the defense attorney and I’d like to know this and argue to a judge I should be able to introduce it as tending to negate my client’s guilt or to impeach a prosecution witness, I disclosed it to the defense attorney.
Disclosing it to the defense attorney didn’t mean that I would not argue zealously that the court should exclude the evidence because of the risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time (FRE 403) or it was hearsay (FRE 802), or any other reason under the rules. (If the defense requested an officer’s personnel file and I determined it contained no Brady/Giglio material, I’d offer to let the court review it.)
There are prosecutors who disagree. Given my reputation and career was on the line, I chose to err on the side of caution.
Police policies on Brady/Giglio are also inconsistent and complicated. When I train recruits at the Alaska DPS Academy about their Brady obligations, I stress they must be fair and impartial investigators and reporters of all the relevant facts – incriminating and exculpatory.
For example, if they display a photo line-up in a convenience store robbery to three witnesses and two of the witnesses identify the same suspect but the third fails to identify anybody, they report all three. A defense attorney might argue the third witness had the best vantage and her failure raises a reasonable doubt. Even if the three had the same vantage and ability to see, a defense attorney could argue that 2 out of 3, or 66 percent, doesn’t equal beyond a reasonable doubt and 1 out of 3, or 33 percent, equals reasonable doubt.
As for impeachment evidence, I tell them if they lie, steal or cheat, however trivial it might seem, it could land them on a Brady List. For example:
They fall asleep on duty, miss a dispatcher’s call, are finally roused, and say they must’ve had a stuck mike, or They tell dispatch they’re out of service and unavailable when really they don’t want to receive a call because it’s near the end of shift and they don’t want to be late for a daughter’s basketball game
It arguably goes to their character for truthfulness. A defense attorney would like to argue that a cop who would lie to his own department about something trivial can’t be trusted to tell the truth about something important.
I’m sure there are cops (and prosecutors) who disagree but I want recruits understanding why their job holds them to such a high standard of honesty (and why their departments may have a zero tolerance for dishonesty policy). It’s not just that we have a right to expect honesty from cops; it’s that even if they engage in what might be perceived as trivial untruthfulness, it might:
Land them on a Brady List; They might be cross-examined about it in every case they testify, or The prosecutor might tell their department not to send any cases in which they are a witness, and If they can’t testify, they can’t perform a critical job function.
It’s their reputation and career on the line. Why wouldn’t they, too, want to err on the side of caution?
The courts, statutes, policies and perspectives about Brady/Giglio obligations are complicated and confusing. Prosecutors and cops need workable policies and realistic scenario-based training on what the policies require of them. Much is at stake for prosecutors, cops and the accused’s right to due process and a fair trial.
RESOURCES FOR BRADY OBLIGATIONS
Supreme Court Cases
Brady v. Maryland (1963). Prosecutors must disclose to the accused any exculpatory evidence, that is all favorable evidence that is “material” to the accused’s guilt or his punishment.
Giglio v. U.S. (1972). Exculpatory evidence also includes information that could be used to impeach the credibility of prosecution witnesses, including officers.
U.S. v. Augurs (1976). Exculpatory evidence must be disclosed regardless of whether the defense requests it.
U.S. v. Bagley (1985). Exculpatory evidence 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.
Kyles v. Whitley (1995). Prosecutors have an affirmative duty to learn of, and disclose, any exculpatory evidence known to “others acting on the government’s behalf in the case, including the police.”
Policies and procedures
IACP Model Policy on Brady Disclosure Requirements
Baltimore PD Policy on Brady/Giglio Disclosure Requirements
Model Policy, Illinois Association of Chiefs of Police, Brady Material Disclosure
Greeley PD Brady Disclosure Policy
DOJ Memorandum, Guidance for Prosecutors Regarding Criminal Discovery
DOJ Memorandum, Requirement for Office Discovery Policies in Criminal Matters
DOJ Memorandum, Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group
Articles and papers
IACP Concepts and Issues Paper on Brady Disclosure Requirements
Brady v Maryland: Do you Understand your Obligations? Steve Rothlein, Public Agency Training Council
Brady/Giglio Disclosure Requirements, Pam McDonald, Randy Means
BRADY – The Next Step for Law Enforcement, Lou Reiter
Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, Jonathan Abel, Stanford Law Review
Evidence of Police Dishonesty Leads to Overturned Convictions Nationwide, Nancy West, The Crime Report
More States Forcing Prosecutors to Hand Over Evidence — Even When It Hurts Their Case, J. Brian Charles
Legal system, law enforcement at odds over Brady List, Emily Gillespie
L.A. Times series, Brady List investigation
Are Brady Lists (aka Liar’s Lists) the Scarlet Letter for Law Enforcement Officers? A Need for Expansion and Uniformity, Mary Ellen Reimund
Due Process for Officers Placed on Giglio or Brady Lists, John V. Berry
New statute protects against “Brady List” excesses, Stone and Busailah