ON THE JOB JUST HANDED DOWN
If something that has not been previously disclosed becomes discoverable in the course of a court-guided lawyer-fest, then the defense gets the information after all and the angst-ridden executive decision not to disclose was all for naught.
Threshold the Defense Must Meet The threshold requirement for discovery of Brady/Giglio in- formation is not fully defi ned in constitutional law but is often addressed in state and local rules and statutes. One federal appeals court held that when the defense seeks an in-camera inspection of police fi les, they “must at least make a ‘plausible showing’ that the inspection will reveal material evidence. Mere speculation is not enough.” Riley v. Taylor, 277 F.3d 261, 301 (3d Cir. 2001) (citing Penn- sylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987). Another federal appeals court said the government’s obligation to review an internal affairs report was triggered when the defense made “an explicit request for an apparently very easy examination, and (there was) a non-trivial prospect that the examination might yield material exculpatory information.” United States v. Brooks, 966 F.2d 1500, 1504 (D.C. Cir. 1992). The following two cases illustrate how low some courts place the threshold, even when Brady/Giglio material is the focus of discovery efforts.
United States v. Allick (D.V.I., 2012) In this case from the Virgin Islands, a federal trial court opened a police department’s ongoing internal investigation fi le where, after considering local procedural rules (which spe- cifi cally created a mechanism by which the defense can obtain Brady/Giglio material in police personnel fi les), the court said the key question was whether the defense articulated a “rea- sonable basis” for their belief that the internal affairs fi le con- tained “discoverable information.” The facts of the case were odd and have to be read in full to be appreciated.
United States v. Brooks (D.C. Cir. 1992) Here, a federal circuit court of appeals authorized defense ac- cess to police administrative fi les even after acknowledging a “low probability” they would yield information about the offi cer’s credibility, partly because the fi les were easily acces- sible for review. The defense requested to review administra- tive fi les that might reveal “some sort of problem” that would bear on the offi cer’s credibility. The court said the defense request was understandably “somewhat vague” but it was more than “utter speculation” and justifi ed an examination of the fi les for exculpatory mate- rial. The court stated it was “highly relevant that defense coun- sel pinpointed fi les that can be searched without diffi culty” and noted that, as the burden on the government to conduct the examination increases, “clearly the likelihood of a pay-off must also rise.” Again, odd case facts. As the above cases demonstrate, a trial judge may have con- siderable discretion to determine when police administrative fi les are subject to discovery in search of Brady/Giglio ma- terial, and their decisions are very case specifi c. Judges also make important distinctions between information that must be made available to the defense and information that the defense may actually use for impeachment purposes during trial—the question of admissibility is a separate issue. Procedural rules, state statutes, and other local conventions
often direct the process of pre-trial information exchange between the prosecutor and defense and may impose ad- ditional duties on police to provide certain information, but law enforcement’s Brady/Giglio obligations are affi rmative constitutional duties and are not erased by lax or even absent discovery requests from the defense. Law enforcement’s reluctance to allow access to internal in- vestigations and administrative fi les is understandable—espe- cially in those states with strong personnel privacy laws—but, when present, the constitutional duty to disclose information that bears negatively on an offi cer’s credibility must control. Likewise, applicable discovery rules and associated court or- ders of course must be followed. The fourth and final part of this series will look at cases involving employment of officers who have Brady/Giglio troubles, delve into associated fitness for duty issues, and make specific recommendations for policy in regard to of- ficer untruthfulness.
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10 LAW and ORDER I May 2016
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