The Implications of Brady-Giglio for Law Enforcement

Editor’s Note:  Because the language in the Brady-Giglio policy references law enforcement agencies and police officers specifically, those terms have been used throughout this article for consistency.  However, it is important to note that the Brady-Giglio policy encompasses those who work in all areas of law enforcement,and as such,is applicable to all corrections staff/officials working in jails and prisons as well.

The Brady-Giglio policy requires prosecutors to disclose exculpatory and impeachment evidence when such evidence is material to guilt or punishment.  Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972); U.S.A.M. 9-5.001(B). Because this policy exists to defend the constitutional guarantee to a fair trial for criminal defendants,this information must be disclosed regardless of whether the defendant requests it.  Id.  In fact,the United States’ Attorney Manual states, “this policy encourages prosecutors to err on the side of disclosure….”   U.S.A.M. 9-5.001(F).  The quasi-obligatory nature of this policy has had serious implications—that extend far beyond the courtroom—for law enforcement officials who are called to testify in criminal cases.

Under Brady-Giglio, when a police officer is called as a witness for a law enforcement agency, the prosecutor must disclose impeachment evidence,meaning any evidence that “casts a substantial doubt upon the accuracy” of the witness testimony.  Preface, U.S.A.M. 95.100.  The Manual lists seven distinct categories of potential impeachment information including: (i) any finding of misconduct relating to truthfulness or bias, (ii) any past or pending criminal charge, (iii) any allegation of misconduct regarding truthfulness, bias, or integrity, (iv) prior findings by a judge that an officer has testified untruthfully, (v) any misconduct that casts a substantial doubt on the accuracy of any evidence, (vi) information suggesting that the officer is biased for or against a defendant, (vii) information that officer’s ability to perceive and recall truth is impaired.  U.S.A.M. 95.100(1)(b).  While all of the categories are broad in scope and include language such as “any” and “not limited to,” category (iv) appears to have the most far-reaching effects for law enforcement.  Notably, category (iv) also includes findings by a judge that an officer “made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession,or engaged in other misconduct.”  U.S.A.M. 95.100(1)(b).  The Manual makes clear that the Brady-Giglio policy defines impeachment evidence so broadly that it covers a wide array of conduct.  This means that an officer could be impeached as a witness not only for conduct with regard to his professional life, but also his personal life.

The application of the Brady-Giglio policy has had various negative implications for law enforcement. When a judge determines that an officer should be impeached as a witness in a criminal trial for any conduct considered impeachment evidence, the prosecution can no longer rely on the officer’s testimony as evidence in proving its case.  In some cases, an officer may have the only firsthand account of a crime.  Further, police reports and other documents prepared by that officer would also be considered inadmissible hearsay unless the officer could testify at the trial.  Without the testimony of the officer with the most knowledge of the facts,the prosecution would thus find it difficult to prove their case.  The result is that the law enforcement agency that employs the officer now has an officer who will not be able to testify with regard to any of his investigations or other fieldwork without risking impeachment.   This has led many law enforcement agencies to conclude that an officer affected by the Brady-Giglio policy is no longer employable.  Thus, an alarming implication of the Brady-Giglio policy is that some officers may face loss of employment.

In addition to its broad definition of impeachment evidence for trial, the Manual also provides reporting requirements among prosecuting offices and law enforcement agencies with regard to officers affected by the Brady-Giglio policy.  First, prosecuting offices keep a Giglio system of records, which they may use to provide impeachment information about an officer to another prosecuting office if that officer will testify in another judicial district.  U.S.A.M. 95.100(10)(a).   The only limitation on this is that the prosecuting official shall notify the law enforcement agency employing an officer subject to a pending misconduct investigation before providing any information to another prosecuting office in order to “avoid the unnecessary disclosure of potentially derogatory information.”  Id.   It appears that this precaution is nominal in nature because Brady-Giglio would nonetheless compel disclosure of this impeachment information in order to ensure a fair trial.

Second, the only instances where an officer’s identity will be removed from the Giglio system of records at a particular prosecuting office is when the officer retires, transfers to another judicial district,or is reassigned to a position in which the officer will neither be an affiant or a witness.  U.S.A.M. 95.100(10)(c).  Even when an officer is transferred to another judicial district,his former employer is required to inform prosecutors in the new district of any potential impeachment information when the officer begins “meaningful work on a case.”  U.S.A.M. 95.100(11).  This means that the Brady-Giglio policy could affect employment opportunities for officers for the duration of their careers.  Not only do they risk losing employment at the law enforcement agency that employed them when the alleged misconduct occurred, but they also risk being rejected for positions at other law enforcement agencies when they learn of the misconduct.  While the term “meaningful work” is considerably vague, it seems to suggest that the reporting requirement is triggered by fieldwork.  In fact, it appears that clerical work may be the only type of work that would not require an officer to act as an affiant or witness.  This further reduces the possibility of officers being employed as officers after being subjected to the Brady-Giglio policy.  In this way, the only realistic option for many officers in this situation is in fact retirement, at which point it is meaningless that their names be removed from Giglio records.

The Brady-Giglio policy has also resulted in significant stigma against officers who are listed in Giglio records.  Some law enforcement agencies have adopted “truthfulness policies and terminate officers who violate them.”  Lisa A. Judge, Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?, 72 The Police Chief 11 (November 2011).  This would understandably lead to considerable humiliation for these officers who are not only stripped of their job, but also of their dignity.  Other law enforcement agencies place “officers with impeachment problems in administrative assignments where there is no likelihood of becoming a witness in a criminal case.”  Id.  These officers are referred to as “so-called liars squads.”  Id.  Another example is referring to the Giglio list as “the liars’ list.”  Gene King, The Liar’s List, Mich. Municipal League, 17 Law Enforcement Action Forum Newsletter 3 (November 2010).  These epithets against officers who are affected by the Brady-Giglio policy suggest that the very integrity—not only as officers,but also as individuals—is being publicly questioned and scorned.

Perhaps the most alarming implication of the Brady-Giglio policy is that it can ruthlessly vilify police officers, in some cases permanently, with far-reaching professional and personal consequences.

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