Brady/Giglio Disclosure Requirements, Part Two

By Randy Means and Pam McDonald Do all incidents of officer dishonesty require disclosure?

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

spelled out core responsibilities that apply to prosecutors and law enforcement nationwide. See Part One of this se- ries for the Brady/Giglio fundamentals, but local practices in this area vary signifi cantly and the lower courts have struggled to provide consistent answers to questions that were left open in the Brady/Giglio line of cases. In an effort to shed some light on one of those gray areas—the


reach of disclosure requirements concerning prior offi cer dishon- esty—this article reviews several lower court decisions and exam- ines two ‘model’ policies addressing the issue. Even though these lower courts may not be controlling authority for a particular po- lice agency, they illustrate how several courts have responded to the issue.

United States v. Cummings (D. Conn., 2011) A prosecutor was not informed and thus failed to disclose that a testifying offi cer had recently been suspended for stealing a keg of beer from confi scated evidence and for falsifying the arrest and evi- dence reports to cover up his theft. He then gave crucial evidence in a federal social security fraud trial, testifying that the social security number the defendant was accused of using fraudulently was in- correctly documented in the police report and he offered a corrected number to the jury, establishing the defendant’s culpability. Giglio information (about the beer keg theft and related falsifi ed

8 LAW and ORDER I April 2016

reports) was not disclosed to the defense until the sentencing hear- ing. According to this federal dis- trict court (a trial court), had this offi cer’s previous dishonesty been revealed to the jury, they would have had reason to doubt his tes- timony. The defense was able to show a ‘reasonable probability’ that the trial would have had a different result if the offi cer’s re- cord of dishonesty had been dis- closed and used to impeach him. The court therefore granted the defendant a new trial.

Hayward v FL (Fla., 2015) series of Supreme Court decisions

When an offi cer incorrectly testifi ed that his department’s written policy required a non-suspect to be handcuffed during transport, this court decided his erroneous testimony was not ‘material’ to the defendant’s guilt. The government never produced the relevant written policy and a training offi cer testifi ed that handcuffi ng a non- suspect during transport was an offi cer’s discretionary decision that was addressed in training and covered by non-written policy. The court said if the defense had impeached the offi cer with

the related written policy, it would not have been suffi cient to un- dermine confi dence in the verdict, so the Florida Supreme Court determined there was no Giglio violation.

Ramirez v TX, (Tex. App. – Corpus Christi, 1992) A testifying offi cer was terminated from the police force for lying over the phone and later submitting false written reports claiming he could not report to duty because his truck had broken down, when in fact he was visiting his girlfriend. The trial judge estab- lished and the appeals court revisited the point that there was no evidence the offi cer ever falsifi ed reports concerning arrests or cases in which he was involved. The appeals court did not allow the defense to use the embar-

rassing information stating “the fact that he lied to cover a rather indiscreet absence from work” was not admissible for impeach- ment purposes. [Authors’ Note: A different court might well take these facts the other way because the lying reached written reports in an offi cial matter involving absence without leave.]

‘Model’ Policies The following policies from the U.S. Department of Justice (DOJ) and the International Association of Chiefs of Police (IACP) offer some guidance to law enforcement agencies deciding on their own Brady/Giglio policies.

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