DOJ policies, governing federal agents and prosecutors, admit-


tedly require disclosure “beyond that which is constitutionally and legally required” and encourage federal prosecutors to err on the side of disclosure in close questions, specifi cally including information that ultimately may not be ‘material’ or admissible (USAM 9-5.001). The DOJ ‘Giglio Policy’ requires federal agents to inform pros-


ecutors of information that “casts substantial doubt” upon the accuracy of an agent’s testimony, including “specifi c instances of conduct of a witness for the purpose of attacking the witness’ cred- ibility or character for truthfulness; … and evidence in the form of opinion or reputation as to a witness’ character for truthfulness…” (USAM 9-5.100 ‘Giglio Policy’). The DOJ policies set notably high standards for federal agencies


and they are likely higher than most state and local law enforce- ment agencies will choose—particularly on matters of ‘reputa- tion’—but they offer an example of a comprehensive Giglio policy. The IACP Model Policy on ‘Brady Disclosure Requirements’ lists examples of Brady material including “Information that casts doubt on the credibility or accuracy of a witness or evidence” and “An offi - cers’ excessive use of force, untruthfulness, dishonesty, bias, or mis- conduct in conjunction with his/her service as a law enforcement offi cer” (IACP National Law Enforcement Policy Center, Brady Disclosure Requirements, Model Policy, April 2009). The model policy provides a basic checklist of items that law en- forcement agencies should consider when drafting their own policies, but the re- lated Concepts and Issues Paper provides a more thorough explanation of Brady principles and how they reached various recommendations (IACP National Law Enforcement Policy Center, Brady Disclo- sure Requirements, Concepts and Issues Paper, August 2008). The IACP Model Policy is necessarily


general since it aims to address the needs of agencies across the country. Like the DOJ policy, it may be going further than the law requires, particularly as to use of force and misconduct that does not involve dishonesty or other credibility issues. “Impeachment evidence … as well as ex- culpatory evidence, falls within the Brady rule” (Bagley, 1985), but the Brady/Giglio line of cases does not provide a bright-line rule on the types of information that must be disclosed. Given this lack of defi nitive guidance, some states have developed their own practices through court decisions, stat- utes, and discovery rules that substantially affect the undefi ned areas; for example, the California procedure that allows police to satisfy their legal obligation by simply in- forming the prosecutor that a particular fi le may contain Brady material [People v Supe- rior Court (Johnson) (2015) 61 Cal.4th 696]. As the cases above indicate, the few


court cases that exist are split even when lying makes its way into reports. An offi -


www.lawandordermag.com 9


cer’s dishonesty in an offi cial report or investigation is likely to require disclosure under Giglio, but is less likely to when it in- volves personal conduct or perhaps administrative business that is job related but not part of an ‘offi cial’ inquiry, such as lying in response to a casual question about why an offi cer is late for work. Courts sometime rule that minor lies are not subject to Giglio because they fail to meet its ‘materiality’ requirement. Giglio re- quires prosecutors to disclose information that is “material to guilt or punishment,” and information is ‘material’ if “there is a reason- able probability” that disclosure would have affected the outcome of the proceeding (United States v Bagley, 1985). When deciding whether a relatively minor lie is subject to dis-


closure requirements, it is advisable to have the prosecutor make an initial determination and then, if needed, the prosecutor can ask the trial judge to review the questionable information in camera (privately) for a fi nal determination. Part Three of this series will continue the march through unre-


solved Brady/Giglio issues. The fi nal part of this series will con- tain specifi c policy recommendations, including how to deal with personnel issues (like discipline, fi tness for duty, etc.) surrounding offi cer dishonesty.


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