ON THE JOB OFFICER SAFETY JUST HANDED DOWN PUBLIC SAFETY IT SOLUTIONS
Brady/Giglio Disclosure Requirements
By Randy Means and Pam McDonald Where do they start? Where do they end?
Randy Means is a 35-year full-time police legal advisor and trainer. He was formerly in-house counsel to a major city police department, head of the legal department at a state law enforcement training center, head of the national as- sociation of police legal advisors (IACP-LOS), and executive officer on a small combatant naval vessel. He is author of the book The Law of Policing.
In her 25-year career with law enforcement, Pam McDonald has been a patrol officer and felony investigator, a felony prosecutor and a col- lege professor, specializing in police law. She was a Sr. Rule of Law Advisor overseas and studied police legal matters internationally, recently completing her LL.M. She continues to assist Randy Means in much of his work. She can be reached at
pammcdonaldfirm@aol.com.
www.thomasandmeans.com S
Brady was convicted of murder but the prosecution withheld a co-defendant’s confession to the same murder. Subsequent cases clearly established that prosecu- tors have an affi rmative duty to seek out exculpatory information known to others acting on behalf of the government (Kyles v. Whit- ley, 1995) and to disclose that in- formation to the defense, even in the absence of a defense request (United States v. Agurs, 1976). Exculpatory information is any- thing that casts doubt on the guilt of the defendant. Evidence is “mate- rial” under Brady only if there is a
upreme Court opinions have laid the founda- tion for police and prosecutors nationwide. Comprehen- sive federal policy now defi nes federal prosecutorial and law enforcement obligations. However, the instruction of- fered by lower courts to state and local law enforcement and prosecutors has been sketchy. Their practices are sub- stantially affected by local conventions. This article explains the fundamentals as defi ned by several Supreme Court opinions. Part Two will address gray areas. For example, whether relatively minor dishonesty requires disclo- sure, what degree of reliability must be established before an alle- gation of misconduct is discoverable, and when police personnel fi les more generally are subject to disclosure.
It will include a review of “model” policy provisions and rel- evant lower court decisions. Even though the “model” policies and many of the lower court decisions are not controlling author- ity for a particular police agency, a review of how they handle the more diffi cult issues is useful.
Brady and Giglio Fundamentals The seminal Supreme Court case Brady v. Maryland (1963) held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evi- dence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
10 LAW and ORDER I March 2016
“reasonable probability” that disclosing it to the defense would have changed the result of the proceeding, and this “reasonable probability” of a different result is met when the prosecutor’s evi- dentiary suppression “undermines confi dence in the outcome of the trial” (United States v. Bagley, 1995). Giglio v United States (1972) extended the Brady rule to include any information that could be used to impeach the credibility of a prosecution witness, stating, “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondis- closure of evidence affecting credibility falls within (the Brady) rule” (citing Napue v. Illinois, 1959).
The prosecutor in Giglio failed to disclose the government’s promise not to prosecute Giglio’s accomplice in exchange for his testimony—the accomplice then gave key testimony implicating Giglio and falsely denying any agreement with the prosecutor. If the prosecutor had informed the defense about the agreement not to prosecute, the defense would have effectively impeached this essential government witness during his testimony. The Supreme Court granted Giglio a new trial, declaring, “A new trial is required” if there is a reasonable likelihood that the false testimony could have affected the jury’s decision (Giglio, 1972). A prosecutor’s nondisclosure of Brady/Giglio evidence that is material to a fi nding of guilt constitutes reversible, consti- tutional error (see Bagley, 1995), and due process requires that the disclosure be made in suffi cient time to permit the defense to use the information effectively at trial.
How Brady/Giglio Requirements Apply When a police offi cer testifi es as a government witness, the prosecutor has the same obligation as with other government witnesses to seek out and disclose Brady/Giglio information that casts doubt on the cred-
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68