ibility of the testifying offi cer (Kyles, 1995), and police must give the prosecutor any impeach- ment information in their possession. Any Brady/Giglio information the po- lice have is imputed to the prosecutor even if the prosecutor does not actually know of it, and police intentionally withholding information or “burying it in the fi le” may lead to police civil liability (see Tennison v. City and County of San Francisco, 9th Cir. 2009, and Carrillo v. County of Los An- geles, 9th Cir. 2015). The Supreme Court has confi rmed the Brady rule is violated when the prosecutor fails to disclose even information that is “known only to police investigators and not to the prosecutor” (Youngblood v. West Virginia, 2006). Some jurisdictions have developed rules in these regards through case law, statutes, and local rules. That is, New Hampshire Revised Statutes Annotated (RSA) Sec- tion 105:13-b specifi cally describes police personnel fi le disclosure requirements; in People v Superior Court (Johnson) (2015)
61 Cal.4th 696, the California Supreme Court reaffi rms a state statute requiring prosecutors and defense to make a Pitchess (discovery) motion requesting judicial ex- amination of police personnel fi les for ex- culpatory information.
Federal prosecutors and agents are con- trolled by rather comprehensive DOJ policy. Typically, police need to divulge crimes committed by offi cers, untruthfulness, and other dishonesty, and anything suggesting an offi cer’s bias toward the defendant. Ex- amples of possible but less-certain disclo- sure requirements are a history of excessive force or other misconduct, and concealing serious misconduct of other offi cers. Just because the information is given to the prosecutor does not mean it will neces- sarily be given to the defense. The prosecutor makes the fi rst determination of what quali- fi es as Brady/Giglio information, but when the prosecutor is unsure or reluctant to dis- close specifi c information, the judge can re- view the information in camera (chambers)
and decide what information merits disclo- sure to the defense. It is at this juncture—the judge’s assessment—where many of the more worrisome incidents of minor or un- verifi ed police misbehavior are disallowed. Police have an affi rmative duty to locate potential Brady/Giglio material within their control and convey it to the prosecu- tor for their legal determination of what information must be disclosed to the de- fense, and when. Providing defense access to material, exculpatory information is part of assuring a fair trial, which is a defen- dant’s constitutional right, and is therefore an ethical duty pursuant to promises made in a law enforcement offi cer’s oath of of- fi ce. Police will inevitably encounter areas where their responsibility is undefi ned or hazy. Especially in those cases, it may be useful to know how lower courts and oth- ers are thinking. More on this in Part Two!
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