[Note: The following appeared recently in the Kansas Sheriff magazine, Fall 2021 edition. Placed on the KPOA Point of Law page with permission of the Kansas Sheriffs Association]
“It is always the right time to do the right thing.”
Martin Luther King Jr.
What is Brady/Giglio, and as an agency administrator why should I care? The short answer is the Constitution requires the government to affirmatively provide to all criminal defendants both exculpatory (favorable) evidence and impeachment (credibility) evidence concerning government witnesses, including law enforcement officers. The longer answer is that because the obligation is grounded in the Constitution, it is not subject to narrowing through state law or departmental policy, and violations can result in the dismissal of a prosecution, reversal of a conviction, and/or court or license action against prosecutors, law enforcement administrators and officers. Although required by the courts for over half a century, the issues surrounding criminal justice fairness and officer credibility have been subjected to new scrutiny. The result has been a heightened defense and public awareness of Brady/Giglio requirements.
In Brady v. Maryland, the United States Supreme Court determined that prosecutors have an unqualified obligation to turn over all evidence favorable to an accused when the evidence may be material either to guilt or punishment. In Giglio v. United States, the Big Court held that certain information concerning government witness credibility must also be disclosed to the defense.
The disclosure obligation goes well beyond the case prosecutor to include “all information in the possession of any state or local officer.” “There is no ambiguity in our law. The obligation under Brady and Giglio is the obligation of the government, not merely of the prosecutor. Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where the investigating agency does.”
Evidence is considered exculpatory if it “tends to disprove a fact in issue which is material to guilt or punishment.” And, evidence can be exculpatory without being exonerating such as: failure of a witness to identify the defendant, information that links to the crime another person, and information that casts doubt on accuracy of some evidence.
Witness impeachment evidence includes: plea agreements between the witness and the government, benefits promised or given to witnesses (including immigration assistance), certain prior convictions, prior inconsistent statements, evidence of bias, and evidence bearing on a witness’s character for truthfulness.
So, we understand our agency’s constitutional obligation to provide to the defense all of the favorable and unfavorable information that we gather in our investigations. And, that duty seems pretty straight forward.
We also know that we will need to turn over impeachable information about all of the witnesses that the prosecutor will call to testify, including our agency’s officers and employees. But, as a practical matter, how does the impeachment information process work?
Depending upon the local prosecutor’s policy, many agencies currently maintain a “Brady/Giglio List” that contains the names of officers and other employees that may be subject to disclosure because of past events reflecting upon the employee’s character or actions. Other agencies may not maintain a formal list, but could be sufficiently aware of names and events that would require disclosure. Whether a list is maintained or not, disclosure of impeachable information is still a legal duty.
Some prosecutors wish to decide witness credibility issues on a case-by-case basis. Others have decided that they will not accept a case or a warrant affidavit from an officer-witness who is Giglio-compromised. The extent of the prosecutor’s authority is: 1) to require law enforcement agencies to participate in the Brady/Giglio information gathering process; and, 2) to report witness credibility issues. Whether Giglio-compromised employees remain employed is determined by the law enforcement agency head. For a variety of reasons, some agencies retain a compromised employee and assign them to duties not directly related to criminal investigations that might require sworn court testimony. Other agencies terminate Giglio-compromised employees because either reassignment is not possible, or because the agency’s ethical standards do not allow for employees with agency or court sustained credibility issues.
A typical Brady/Giglio inquiry might start with a defense inquiry or an Open Records request to the prosecutor. The request should be in writing, and will find its way to the law enforcement agency. The agency’s legal advisor should be involved early and the agency would then make a good faith search of its records. Personnel records are usually closed, but there may be times when portions could be released under a protective order and/or subject to an in-camera review by a judge. The agency’s records findings are reported to the prosecutor who can then make a decision on whether the criminal prosecution will continue and the potential government witness be called to testify.
Should the prosecutor wish to move forward, then with the legal advisor’s help the information can be released to the defense, or any legal objections be litigated in court. Agencies should refrain from automatically releasing information without in-house legal review due to the multiple privacy issues related to law enforcement and personnel records. A new and separate written record should be created to track the actions taken and the documents reviewed and/or released concerning defense requests for Brady/Giglio information.
Should an agency not currently have a Brady/Giglio policy and procedure in place for the receipt, review, litigation and disclosure of information, it is recommended that one be created sooner than later. Brady/Giglio requests tend to be time-sensitive and trying to figure out what to do after receiving a request is difficult at best.
For further research and understanding: Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. U.S., 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 419 (1995); U.S. v. Agurs, 427 U.S. 97 (1976); Strickler v. Greene, 527 U.S. 263 (1999); State v. Nguyen, 251 Kan. 69 (1992); “ Brady & Giglio” Sample Prosecutor’s Policy, Kansas County and District Attorneys Association, August 2017; “Brady/Giglio Policy of the District Attorney” Sedgwick County District Attorney’s Office, August 2014; the author also notes his appreciation for the learned guidance of Laura Oblinger, Legal Advisor, Sedgwick County Sheriff’s Office.