“The defense attorney wants your file.” I cannot imagine hearing anything more distressing. No matter what your “file” is, or what it contains, no law enforcement officer is comfortable with a defense attorney combing through his or her personnel records. But could that happen?
Brady v. Maryland
In 1963, in Brady v. Maryland, the U.S. Supreme Court expanded on its previous due process cases addressing exculpatory information to which a criminal defendant is entitled. The Brady court decided that a defendant’s due process rights were violated when a prosecutor intentionally withheld exculpatory and material evidence from the defendant. The Supreme Court wrote that withholding exculpatory facts or information was equivalent to “deliberate deception of court and jury.” That’s pretty strong language from our nation’s highest court.
Brady involved two co-defendants, both charged with murder during a robbery. Prior to Brady’s trial, the co-defendant confessed to the actual homicide—information that was clearly helpful to Brady and his defense team. When Brady’s defense team asked for the co-defendant’s statements, the prosecutor turned over several statements, but intentionally withheld the confession. Brady was later convicted and sentenced to death before his attorney discovered the confession.
This action, “the suppression by the prosecution of evidence favorable to an accused upon request,” the Court wrote, “violates due process where the evidence is material.” As a result of the purposely withheld confession, the Court ordered Brady’s sentence be vacated and ordered a new sentencing hearing. Now, more than 50 years later, Brady’s disclosure requirements are well accepted and strictly followed; however, some attorneys like to quibble about what exactly constitutes a “material” fact.
Giglio v. United States
More recently, in Giglio v. United States, the Supreme Court applied the Brady analysis to information that might impact the credibility of a prosecution witness. John Giglio was charged with a federal offense related to forging several money orders. In prosecuting Giglio, the U.S. Attorney’s Office relied heavily on the testimony of a co-conspirator. In fact, outside of the co-conspirator’s testimony, there was very little evidence linking Giglio to the crime.
Giglio’s case was prosecuted by two Assistant U.S. Attorneys (AUSAs). The first AUSA presented the case to the grand jury and the second took the case to trial. Unbeknownst to the second AUSA, the first AUSA offered Giglio’s co-conspirator immunity in exchange for his testimony against Giglio. When Giglio’s attorney asked about an immunity deal for the co-conspirator, the second AUSA denied any deal had been offered or made. Likewise, during trial, the co-conspirator denied being part of any deal.
After Giglio’s conviction, the co-conspirator’s immunity deal came to light and Giglio’s attorney appealed his conviction. When the case arrived at the Supreme Court, the justices applied their Brady logic and decided that the duty to disclose favorable information to the defendant (set forth in Brady) also applied to material information that might impact the reliability of a state’s witness, if the defendant asks for this information. An immunity deal, like the one offered to Giglio’s co-conspirator, might affect the witness’ credibility in the eyes of the jury, the Court reasoned. The failure of the second AUSA to disclose the immunity deal violated Giglio’s due process rights, even though the second attorney knew nothing of the deal.
Duty to Disclose
“But wait, how does this impact my personnel file?” you’re probably asking. Hopefully there is nothing in your disciplinary file that could potentially affect your credibility as a witness. However, in nearly every criminal case, and certainly every case that goes to trial, defense attorneys routinely request any and all exculpatory information from the prosecuting or district attorney. When a prosecutor receives that request, even minor disciplinary actions could become accessible to a defense attorney. In fact, depending on the content of your disciplinary file, the prosecutor may have a constitutional and ethical duty to disclose it all.
The Supreme Court did not render much guidance about what a prosecutor must provide to a defense attorney in order to satisfy their Brady and Giglio obligations. We know material and exculpatory evidence must be provided to the defense, and that “evidence affecting credibility” of a witness falls within these bounds. This guidance leaves little doubt that disciplinary action touching on an officer’s ethics, integrity or honesty must be disclosed. Criminal convictions for similar criminal offenses, such as fraud or those involving moral turpitude, must also be disclosed.
But what else? There is no bright line to define when evidence affects an officer’s credibility; it is unclear where this requirement starts and stops. If you’re the only witness to an offense, or the state’s case relies heavily on your testimony, the Supreme Court has indicated the scope of required disclosure could be broader. As a recent and practical example, the Circuit Attorney for the City of St. Louis has developed a list of officers whose cases will not be filed unless independent evidence exists to corroborate the officer’s observations. These officers have something in their disciplinary file that, in the judgment of the Circuit Attorney, so severely affects their credibility that the officers cannot be relied on.
The best way to avoid this pitfall is to do your job ethically, legally and within policy. It’s much easier that way and there is no temptation to be dishonest when you have nothing to hide.
The very close second-best way to avoid the prying eyes of a defense attorney or being placed on the prosecutor’s “no file” list is to tell the truth. All the time. Under all circumstances. Even if it hurts. Wreck a patrol vehicle? Say so (it happens). Use an unauthorized strike to subdue a restive suspect? Report it. See a co-worker use excessive force? Tell a supervisor.
Make sure your reports reflect the same dedication to the truth. Our job is to report the facts and take appropriate enforcement action. It is not our job to ensure the case is filed by only reporting the “good facts” that support our case or slanting the truth to support our actions. In fact, doing so will likely lead you to some extreme unpleasantness on the witness stand at the hands of the defense attorney, followed promptly by an internal affairs investigation, which could then be discovered by an attorney in a subsequent case—and the cycle repeats itself.
It goes without saying that law enforcement professionals should always be honest, tell the truth, and report the same. But remember what you say or do in one incident, and how you write your reports, could impact your disciplinary file, which could affect your credibility on the stand or potentially exclude your cases from prosecution.