July, 1996 By Lisa A. Regini, J.D.
Special Agent Regini is a legal instructor at the FBI Academy.
(A prosecutor's constitutional duty to disclose exculpatory
information to the defense includes releasing some officers'
personnel information.)
"[T]he government simply cannot avoid responsibility for knowing
when the suppression of evidence has come to portend such an
effect on a trial's outcome as to destroy confidence in its
result....This means, naturally, that a prosecutor anxious about
tacking too close to the wind will disclose a favorable piece of
evidence....[T]his is as it should be."1
A recent U.S. Supreme Court decision concerning the government's
constitutional duty to disclose information favorable to the
accused contained the language in the beginning quote. Implicit
in this language is a reaffirmation of the prosecutor's role as
"...the representative...of a sovereignty...whose interest...in
a criminal prosecution is not that it shall win a case, but that
justice shall be done."2
Personnel information concerning law enforcement officers who
testify against the accused may be as important to the defense as
evidence directly affecting innocence.3 Prior instances of lack
of candor, prior bad acts, or a reputation for untruthfulness can
be used to impeach an officer's testimony against the accused and
are fundamental ingredients to a defendant's right to a fair
trial.
The Court's recent decision involving a prosecutor's
constitutional duty to disclose exculpatory information comes at
a time when law enforcement is under tremendous scrutiny in
society as a whole and in the courtroom. Now more than ever
before, defense attorneys are attacking their clients'
prosecution by attacking those who are responsible for the
investigation, fueling ever-increasing numbers of requests for
information contained within law enforcement personnel files.
The disclosure of law enforcement personnel information often
implicates sensitive professional and privacy interests,
particularly in cases where the officer has been exonerated or
the matter is personal in nature. Accordingly, while the
defendant's right to a fair trial is paramount, the defendant
does not have a right to "everything known to the prosecutor."4
This article examines the government's duty to provide
information relating to personnel and disciplinary matters
concerning law enforcement officers who will testify on the
government's behalf. The article first reviews relevant case law
establishing the government's legal duty to disclose exculpatory
information. Then, it addresses the need for law enforcement
agencies and prosecutors to establish policies concerning the
general types of information required to be disclosed and methods
by which this information can be maintained, retrieved, and
disseminated to prosecutors when necessary.
DISCLOSURE OF EXCULPATORY INFORMATION
In the landmark decision of Brady v. Maryland,5 the U.S. Supreme
Court recognized that fundamental notions of fairness and due
process within the meaning of the 5th and 14th amendments require
the government to provide evidence favorable to the defense.
Brady clearly established that in a criminal case, the accused
has a right to any exculpatory evidence, i.e., any evidence in
the government's possession that is favorable to the accused and
that is material to either guilt or punishment, irrespective of
the good or bad faith on the government's part in failing to
disclose such information.6
In Brady, the defendant was convicted of first-degree murder and
sentenced to death. Brady testified about his participation in
the crime but stated his companion actually committed the murder.
Prior to trial, Brady requested copies of statements provided by
the companion. The government provided some of those statements
but failed to provide the statement in which the companion
admitted killing the victim. Brady did not learn of this
statement until after he was convicted and sentenced.
The Supreme Court agreed with Brady's contention that the
government's failure to provide the companion's statement
amounted to a denial of his right to due process of law
guaranteed by the 14th amendment. The Court concluded that while
the statement did not affect Brady's culpability relating to the
first-degree murder charge, the companion's statement was
relevant for purposes of Brady's punishment. The Court elaborated
on the defendant's constitutional right to discover exculpatory
evidence in a criminal proceeding by concluding that "suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment."7
From this decision emerged the term "Brady material," which is
used by both attorneys and law enforcement officers to describe
exculpatory material that, according to the Brady rule, must be
provided to the defense if material to guilt or punishment. The
focus of this article is not to define the universe of Brady
material but rather to identify the types of information
concerning the conduct of law enforcement officers that falls
within the Brady rule.
BRADY MATERIAL:
IMPEACHING WITNESSES
The Supreme Court extended the Brady rule to include mat-
erial affecting a witness' credibility. In Napue v. Illinois,8
the Supreme Court held that the prosecutor's use of false
testimony that goes to the credibility of a witness violates due
process.
In Napue, the defendant was tried for murder. The government's
main witness, also implicated in the murder, falsely testified
that he received no consideration in return for his testimony.
The government, knowing that testimony to be false, failed to
correct the record. The Supreme Court concluded that the jury's
evaluation of the truthfulness and reliability of testimony may
affect the determination of guilt or innocence and that "...it is
upon such subtle factors as the possible interest of the witness
in testifying falsely that a defendant's life or liberty may
depend."9
ABSENCE OF BAD FAITH IS NO DEFENSE
The Supreme Court subsequently used the Brady rule to expand the
principle announced in Napue. In Giglio v. United States,10 the
assistant U.S. attorney (AUSA), who presented the case before a
grand jury, made an unauthorized promise of leniency to the main
government witness, a co-conspirator in the case. The AUSA who
tried the case was unaware of this earlier promise. The witness
testified falsely at trial that he received no consideration for
his testimony.
The Supreme Court in Giglio reversed the conviction, holding that
the AUSA's promise was attributable to the government, regardless
of the absence of bad faith on the part of the prosecutor who
tried the case. The Court believed evidence of this promise would
impact the credibility of this key government witness and that
the jury was entitled to consider this evidence when weighing the
testimony of the witness.
As a result of Brady and Giglio, the government is
constitutionally required to disclose any evidence favorable to
the defendant that is material to either guilt or punishment,
including evidence that may impact on the credibility of a
witness. Furthermore, the defendant's failure to request
favorable evidence does not leave the government free of this
obligation because constitutional error results "...if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different."11
DUTY TO DISCOVER BRADY MATERIAL
In its 1995 decision in Kyles v. Whitley,12 the Supreme Court
ruled that a prosecutor's constitutional duty to provide
exculpatory evidence to a defendant includes a related duty to
exercise reasonable diligence to discover or learn of the
existence of such evidence. In Kyles, the defendant was convicted
and sentenced to death for the murder of a woman in a grocery
store parking lot. The Supreme Court, in reversing the
conviction, identified information that had been improperly
suppressed by the government. This information pertained to the
government's investigation and statements made by witnesses who
testified at trial.
Key to the government's investigation was the assistance of an
informant who called police to report that he had just purchased
a car from his friend, Kyles, that matched the description of a
car belonging to a victim of a murder he heard reported on the
news. The informant met with detectives and began assisting in
the investigation.
Throughout his involvement in the investigation, the informant
often gave contradictory and sometimes self-incriminating
statements. For example, the informant admitted to changing the
license plates on the stolen car twice after purchasing it from
Kyles.13 The Supreme Court was especially troubled with the
government's suppression of the informant's statements in light
of the defense's theory that Kyles had been framed by the
informant.14
Also crucial to the government's case at trial was the testimony
of eyewitnesses who identified Kyles as the killer. The Supreme
Court found that disclosure of their pre-trial statements would
have drastically weakened the government's case.15
For example, one witness provided a statement contemporaneous to
the incident in which he admitted that he was at the scene but
did not actually see the incident. This witness also stated that
the only time he saw the assailant was when the assailant was
attempting to flee the scene and described him as a black teenage
male with a moustache and shoulder-length hair.16
However, at trial, this witness testified that he not only saw
the assailant but that he also saw him struggle with the victim
and remove a small .32-caliber handgun from his pocket and shoot
the victim in the head. Furthermore, he omitted to mention the
description that he provided earlier of the assailant--a
description that did not resemble Kyles.17
The Supreme Court believed that "[a] jury would reasonably have
been troubled by the adjustments to [the witness'] story...[and
the statements] would have fueled a withering cross-examination,
destroying confidence in his story and raising a substantial
implication that the prosecutor had coached him to give it."18
The Court determined that the net effect of the information
withheld from the defendant raised a reasonable probability that
the outcome would have been different, and thus, its suppression
violated the defendant's right to a fair trial.19
Even though some of the information favorable to the defense was
not disclosed to the prosecutor until after trial, the prosecutor
still is held accountable for a Brady violation.20 The Supreme
Court in Kyles ruled that the prosecutor is held to a disclosure
standard based on what all the government's officers knew at the
time.21
The Court took the opportunity to elaborate on the prosecutor's
role in instilling confidence in the trial's outcome by not only
ensuring that the duty to provide exculpatory information is
strictly adhered to but also by imposing a duty to learn of such
information.22 The Court imposed a duty on prosecutors to
exercise diligence in discovering all evidence favorable to the
defense within the government's possession and reasoned that this
duty flows naturally from the power of the prosecutor to
determine what information will remain undisclosed as not
material to either guilt or punishment. In its ruling, the Court
stated:
On the one side, showing that the prosecution knew of an item of
favorable evidence unknown to the defense does not [alone] amount
to a Brady violation....But the prosecution, which alone can know
what is undisclosed, must be assigned the consequent
responsibility to gauge the likely effect of all such evidence
and make disclosure when the point of 'reasonable probability' is
reached. This in turn means that an individual prosecutor has a
duty to learn of any favorable evidence known to others acting on
the government's behalf, including the police.23
The "duty to learn" thus extends the prosecutor's obligation not
only to ensure that all exculpatory information is provided to
the defense but also to undertake reasonable steps to ensure that
the prosecutor is aware of all such material in the gov-ernment's
possession.
DISCOVERY OF PERSONNEL MATTERS
Material Information
When reviewing decisions that apply the Brady-Giglio principles
to law enforcement personnel and disciplinary information, it
becomes apparent that few generalizations are possible. For
example, allegations of misconduct that are part of a pending
investigation generally are not required to be disclosed
because they are preliminary or speculative.24
In United States v. Veras,25 the U.S. Court of Appeals for the
Seventh Circuit held that the government improperly suppressed
information concerning a pending investigation into allegations
that an officer lied in a search warrant affidavit and stole
money during the execution of warrants. The government did not
disclose the information because at the time it was required to
provide discovery, the allegations consisted only of the word of
a convicted drug dealer and perjurer who was in a position to
benefit if the allegations were proven true.26
The court concluded that the government improperly suppressed the
material, contrary to Brady-Giglio. The court reasoned that the
information should have been disclosed to the defense because the
information was of a serious nature and involved the credibility
of a representative of the government. In addition, the
government took the allegations seriously enough to initiate an
investigation.27
Some generalizations concerning the government's disclosure
obligations with respect to personnel or disciplinary information
are possible. However, when formulating agency policies
concerning what information will be shared, it is incumbent on
police legal advisors and prosecutors to review the relevant case
law in their jurisdictions. Generally, relevant portions of
documents containing the following categories of information
should be provided to prosecutors:28
- Any finding of misconduct, such as a disciplinary letter, that
reflects on the officer-witness' truthfulness
- Any finding of misconduct that indicates that the
officer-witness may be biased
- Any credible allegation of misconduct, subject of a pending
investigation, that reflects on the truthfulness or possible bias
of the officer-witness, and
- Any past criminal charge or pending criminal charge brought
against the officer-witness.
Allegations of misconduct that are unsubstantiated or result in
the officer's exoneration generally are not considered
impeachment material, and thus, need not be shared with the
prosecutor. However, cases may arise where consideration should
be given to disclosing the information to the prosecutor,
particularly where the officer's credibility is significant to
the prosecution. Some courts have required a review of a
personnel file by the trial court judge for possible impeachment
material, even where the officer has been exonerated.29
Need for Coordination and Communication
As a result of Kyles and the Court's imposition of a duty to
learn of Brady-Giglio material, it is apparent that prosecutors
and law enforcement agencies need to establish guidelines to
ensure that prosecutors receive sufficient information concerning
law enforcement witnesses to meet their discovery obligations.
Prosecutors also should be made aware of the sensitive
professional and privacy interests at stake and the need to
maintain the confidentiality of personnel and disciplinary
matters, unless disclosure is required.
Prosecutors and law enforcement agencies may find it beneficial
to discuss the government's obligation to provide personnel and
disciplinary information in their jurisdictions and perhaps
create a formal policy to foster consistency in resolving this
difficult issue. Suggested topics of discussion include: 1) The
types of disciplinary information that must be disclosed; 2) the
degree of certainty that misconduct has occurred, which triggers
disclosure; 3) the stage in the investigation when disclosure
must be made; and 4) the extent to which prosecutors may retain
law enforcement personnel information in their systems of records
for future retrieval.
Agencies also should inform officers and other investigative
personnel of their responsibility to advise prosecutors with whom
they are working of potential impeachment information prior to
testifying. As part of court-ordered discovery, a prosecutor also
may request a particular employee's personnel file be reviewed
for potential impeachment material.30 Procedures should be
developed detailing how this request is made, whether there
should be a showing that the employee is likely to testify, who
in the agency should process the request and review the file, and
what is the appropriate form of response.
CONCLUSION
The constitutional duty to disclose exculpatory information to
the defense plainly includes some law enforcement personnel
information. Determining the extent to which the government has
an obligation to provide personnel and disciplinary information
concerning officers who may testify is a complicated endeavor,
not subject to simple generalizations and often raising sensitive
privacy and professional issues. It is, therefore, essential
that law enforcement agencies and prosecutors develop policies to
guide the resolution of this issue and to provide notice to
officers as to what information will be subject to discovery.
Endnotes
1 Kyles v. Whitley, 115 S.Ct. 1555, 1568 (1995).
2 Kyles at 1568, quoting Burger v. United States, 295 U.S. 78, 88
(1935).
3 See Giglio v. United States, 405 U.S. 150; Napue v. Illinois,
360 U.S. 264 (1959); United States v. Smith, 77 F.3d 511 (D.C.
Cir. 1996).
4 United States v. Agurs, 427 U.S. 97, 106 (1976).
5 373 U.S. 83 (1963).
6 Giglio v. United States, 405 U.S. 150 (1963).
7 Brady at 87.
8 360 U.S. 264 (1959).
9 Id. at 269.
10 405 U.S. 150 (1963).
11 United States v. Bagley, 473 U.S. 667 (1985) (addressing the
"materiality standard" required in Brady).
12 115 S.Ct. 1555 (1995).
13 Id. at 1572.
14 Id. at 1563.
15 Id. at 1570.
16 Id.
17 Id.
18 Id.
19 Id. at 1565. The Court noted that the opinion does not address
the standard of materiality applied in cases where the prosecutor
knowingly uses perjured testimony; a standard that is more
favorable to the defense requiring only a showing of a reasonable
likelihood that the false testimony could have affected the
outcome. Id. at 1565, n. 7, citing Agurs v. United States, 427
U.S. 97 (1976). See also Gilday v. Callahan, 59 F.2d 257, 267
(1st Cir. 1995).
20 See Kyles at 1568, citing Brief for Respondent at 25, 27, 30
and 31.
21 Id. See also Giglio at 154.
22 Kyles at 1568. The Court wrote that: "Unless, indeed, the
adversary system of prosecution is to descend to a gladiatorial
level unmitigated by any prosecutorial obligation for the sake of
the truth, the government simply cannot avoid responsibility for
knowing when the suppression of evidence has come to portend such
an effect on a trial's outcome as to destroy confidence in its
result."
23 Id. at 1567. In United States v. Hanna, 55 F.3d 1456 (9th Cir.
1995), the court, applying Kyles, found that the government
failed to demonstrate that it inquired into obvious
inconsistencies between an officer's testimony and his written
report concerning his discovery of a weapon in the defendant's
possession. The court sent the case back to the district court
for a further factual determination of whether a Brady
violation occurred.
24 United States v. Agurs, 427 U.S. 97 (1976); United States v.
Diaz, 922 F.2d 998 (2d Cir. 1990) cert. denied, 500 U.S. 925
(1991) (prosecution has no Brady obligation to communicate
preliminary or speculative information).
25 51 F.3d 1365 (7th Cir. 1995).
26 Id. at 1374.
27 Id. at 1374-1375. While concluding that the evidence should
have been disclosed, the court further held that the conviction
would not be reversed because the evidence would not have altered
the outcome at trial, as the officer would simply have denied the
allegations at trial and defense counsel would not have been able
to bring in extrinsic evidence to rebut the denial. Id. at 1375.
28 A separate issue, not addressed in this article, is the extent
to which such information would be admissible against the
officer-witness under the applicable rules of evidence.
Application of the rules of evidence will narrow what ultimately
may be used to impeach a witness. Generalizations on the impact
of such rules on what is allowed as impeachment material are also
difficult. For example, in United States v. Ortiz, 5 F.3d 288
(7th Cir. 1993), the court held that the trial court was well
within its discretion in excluding a letter from an officer's
personnel file indicating that he falsely reported hours of court
attendance. The trial court concluded that this information was
not sufficiently relevant to warrant its admission. Compare this
to Dreary v. Gloucester, 9 F.3d 191 (1st Cir. 1993), in which
the court held that a 10-year old disciplinary finding that an
officer falsified overtime records was admissible.
29 See United States v. Kiszewski, 877 F.2d 210, 215 (2d Cir.
1989).
30 One court has held that Kyles v. Whitley requires that the
prosecutor personally review the personnel file and may not
delegate this duty to the agency. United States v. Lacy, 896
F.Supp. 982 (N.D.Cal. 1995), government's appeal filed 9/15/95,
No. 95-10398.
