ON THE JOB JUST HANDED DOWN
Brady/Giglio Disclosure Requirements, Part Three
Confusion with discovery processes involving administrative files By Randy Means and Pam McDonald
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
dressing what we know and what remains unanswered regarding police disclosure requirements under the prin- cipal Supreme Court cases Brady v. Maryland (1963) and Giglio v. United States (1972). Part One laid out the fundamental obligations created by the Brady/Giglio line of cases. Part Two addressed which sorts of offi cer dishonesty require disclosure—one of several gray areas in Brady/Giglio law. This Part attempts to clarify the difference between Brady/Giglio requirements and ordinary criminal discovery efforts to access police department admin- istrative fi les. Two court cases are used to illustrate how those courts handled, or mishandled, these issues.
T
Unilateral Executive Decision The earlier parts of this series were an attempt to guide law enforcement administrators in making a diffi cult unilateral de- cision to disclose to a prosecutor records or other information that, depending on interpretation, might be Brady/Giglio ma- terial. If the police executive ‘over-discloses,’ it may stigmatize an offi cer unnecessarily. If the administrator elects not to disclose, the record later
comes to light, and the ‘under-disclosure’ is found to be a Brady/Giglio violation, then fair trial (constitutional) rights have been violated, new trials get awarded, and even civil li-
8 LAW and ORDER I May 2016
ability problems could ensue. Consider this example: An administrator, because of the uncertain state of the law, strug- gles with whether to disclose to a prosecutor a record of an offi cer lying about a relatively minor administrative matter— and that offi cer is now a mate- rial witness for the government in a criminal case. In some states, such informa-
tion might have been subject to public records laws that would
have required its disclosure to anyone seeking the record. In other states, the same information
would not be public record and would be protected from pub- lic access by strict personnel privacy laws. Where the informa- tion is public record, administrative decisions in these matters might not be quite as diffi cult.
his is Part Three of a multi-part article ad-
Difference between ‘discovery’ and ‘disclosure’ ‘Discovery’ is a legal process by which counsel seeks access to records and/or information in the hands of opposing counsel or parties. A criminal defense lawyer may make discovery re- quests of police and prosecutors for specifi c records and/or information that could aid the defense effort. Disagreements concerning what access a defense attorney should have to po- lice fi les will ultimately be resolved by a judge, who will apply the legal rules of ‘discovery.’ If a law enforcement administrator has already made Brady/
Giglio disclosures to the prosecutor who has, in turn, disclosed the record or information to the defense, then the defense may initi- ate further ‘discovery’ requests in that regard. But where police and the prosecutor claim there is no Brady/Giglio material or a defense lawyer is not satisfi ed that everything Brady/Giglio has been produced—and wants to use the discovery process to graze through police fi les—then the matter may heat up. If a defense lawyer is making a discovery request and car-
rying some burden of persuading the court of the presence of possible relevant information—and the prosecutor is involved and usually opposing the request—we are talking about some- thing quite different than the affi rmative constitutional duty in regard to which law enforcement agencies have to make at the outset a unilateral decision as to whether particular informa- tion needs to be delivered to a prosecutor for a constitutional law decision (Brady/Giglio).
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