partly because Brady/Giglio’s application to this fact situation is very uncertain as a legal matter. If some supervisors handle this kind of situation ‘personally’ or document it only at the shift level and others write it up and send it up—to administrators who are inclined to suspend or fi re em- ployees on these facts—this inconsistency will result in disparate treatment, which on a lucky day is only unfair and on an unlucky day will look also exactly like illegal discrimination. In many juris- dictions, such unfairness is also unconstitutional in regard to the rights of the worse-treated employee—a substantive due process violation under the 14th Amendment, a deprivation of ‘property’ (i.e. pay or job) without fundamental fairness. For the reasons above, this kind of situation cannot be left to


the (historically prevalent) discretion of fi rst-line supervisors. It is dangerous for law enforcement administrators to make a unilateral decision that a record of untruthfulness in police business is not the kind of untruthfulness that requires dis- closure under Brady/Giglio. Organizational problems require organizational solutions. Some supervisorial discretion must be curtailed—sacrifi ced at the altar of consistency, fairness, and legality—and the prosecutor’s offi ce should be involved in de- ciding whether information is subject to Brady/Giglio law.


Recommendations Written policy should establish that there are two kinds of pro- hibited lying. Category One lies would cause termination on the fi rst offense. They should be, at a minimum: lying under oath, lying in offi cial internal investigations, materially falsi- fying offi cial records, and lying to the detriment of another human being. Category Two lies would be everything south of Category


One and should result in heavy suspension on the fi rst violation and termination on any second offense—ever. This sends a mes- sage that any and all untruthfulness is very serious misconduct but accommodates the practical reality that making termination stick on a fi rst offense like the one in our scenario above is un- likely, for reasons explained above. It is contrary to organizational and leadership interests to persistently seek termination on facts where the employee is going to be returned to duty by review- ing authorities or to treat untruthfulness lightly—hence the recommendation of heavy suspension on a fi rst violation, however ‘small.’ That disposition also serves to support—‘tee up’ in terms of progressive discipline—a termination ac- tion for any subsequent untruthfulness. Following this recommendation means


Adjusto-Lok


that Category Two liars would remain employed unless or until a second act of untruthfulness or other problem causes their termination. Therefore, decisions will have to be made regarding Brady/ Giglio disclosures on the Category Two liar. This offi cer should not be put in stor- age (i.e., where courtroom testimony re- quirements are unlikely to arise) because that is an unacceptable precedent.


Nor should he be placed or left in a particularly sensitive assignment. Rather, he should be left in fi eld police work, in harm’s way in respect to courtroom testimony. When that work leads to witness appearances in criminal cases, disclosure of his record of untruthfulness should be made to the prosecutor and the prosecutor will then make the ultimate decision regarding further disclosure to the defense or other disposition, like case dismissal. The offi cer will either sink or swim in this process. If ultimately a prosecutor or court determines that he is unable


to render credible testimony in a court of law, the offi cer should be determined unfi t for duty because of inability to perform the full range of required duties and termination should then be sought on that basis. In such a process, the employer would ideally be hold- ing in one hand a job description that says, “must be able to render credible testimony in a court of law” and in the other hand a letter from the head prosecutor that the offi cer “cannot render credible testimony in a court of law.” Even if this is based on a prosecutor’s or judge’s subjective


view of Brady/Giglio application, the ban of an offi cer by a prosecutor’s offi ce from courtroom testimony is an objective fact in the employment arena—and therefore more likely to support a termination decision than an employer’s much ear- lier, unilateral, subjective and highly speculative decision that the offi cer is ‘damaged goods’ because of Brady/Giglio law. One fi nal thought. Choosing not to document and report


acts of minor untruthfulness does not make Brady/Giglio is- sues disappear and is likely to compound problems by creating the appearance, if not reality, of cover-up and even conspiracy against fair trial rights. Likewise, writing these incidents up but calling them some-


thing other than untruthfulness (e.g., conduct unbecoming or unsatisfactory performance) in an effort to avoid disclosure requirements is not a solution but compounds problems dra- matically. That is, assuming ‘lying’ is defi ned as ‘intentional deception,’ we would be lying about the lying.


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