Ok, I'll post more later, but to get to the main points, I liked the Det. although he didn't go into enough detail to clarify his point, but the prof is a bonehead. Confirming my opinion about many defense attorneys, the prof appears to have stopped doing legal research after getting his J.D.
Read the caselaw below and note how it undercuts most of the prof's assertions:http://iacp.org/documents/index.cfm?document_id=25&document_type_id=16&fuseaction=documentOfficer Liability for Failure to Disclose Exculpatory Evidence
Mark Newbold, Deputy City Attorney, Charlotte-Mecklenburg Police Department, Charlotte, NC
Police chiefs should be aware that their officers could be subject to liability in federal court for failing to disclose to a prosecutor any evidence that may be favorable to a defendant. Although the federal courts are divided as to the source of this obligation, it appears that officers acting in bad faith could be found to have committed an "affirmative abuse of power." Such allegations against police officers are rare; nevertheless, they are often difficult to rebut. This column reviews the important court decisions on the issue and makes recommendations to police departments to reduce the risk of litigation.
Brief History of Prosecutor's Duty
The landmark case of Brady v. Maryland1 places on a prosecutor an affirmative constitutional duty to disclose exculpatory evidence to a defendant. This constitutional duty is triggered by the impact that the favorable evidence has on the outcome of the criminal proceeding. It requires the prosecutor to evaluate a case in its entirety and look at the cumulative effect that withholding the information has on the outcome of the trial.
Brady arose out of a line of cases going back to the early 1900s that addressed circumstances where prosecutors knowingly presented perjured or false evidence.2 Not too long ago discovery was virtually nonexistent in criminal proceedings. At times, fundamental fairness took a backseat to the adversarial process and the pressure to win. The result is the need for some prosecutors to be reined in and reminded that fundamental fairness is always more important than obtaining a guilty verdict.
The next chapter unfolded in Brady. The prosecutor in that case did not affirmatively present false or misleading information to the court. Rather, the prosecutor suppressed a statement favorable to the defendant after the defendant made a request for such statements. In response to the prosecutor's decision to withhold evidence, the court in Brady stated, "We now hold that the suppression of evidence 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, irrespective of the good faith or bad faith of the prosecution."3 The court explicitly reasoned that fundamental fairness outweighed adversarial posturing and required that the accused be afforded a review of information that is favorable to his defense.4
Prosecutor's Duty in Brady Expanded
In Giglio v. United States, 405 U.S. 150 (1972), the U.S. Supreme Court expanded the prosecutor's duty to disclose evidence relative to the credibility of a governmental witness.5 Later, in United States v. Agurs, 427 U.S. 97 (1976), the Court made it clear that the defendant need not request exculpatory information from the prosecutor. Rather the duty to disclose attached regardless of whether the defense requested the evidence.
In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court reviewed the Brady doctrine and found three circumstances where the duty attaches: first, where "previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured." Id.; second, "where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence." Id.; and third, where the defense failed to request information or made a general request for exculpatory evidence. Id.
The effect of the above is that prosecutors can no longer feel comfortable holding back some evidence that might be exculpatory. In order to avoid a breach of their duty, cautious prosecutors must now continuously review their files and constantly evaluate their cases with an eye towards identifying exculpatory evidence.6
Favorable Evidence Must Be "Material"
The constitutional duty is not triggered simply because the evidence might be favorable to the defendant. Rather, the touchstone of materiality is whether the failure to disclose the information undermines the confidence in the outcome of the trial. The failure to disclose strikes at the very purpose of the trial itself, which is to ensure the accused is afforded a process that is fundamentally fair before the accused is deprived of his or her freedom or property.
"The question is not whether the defendant would more likely than not have received a different verdict with the evidence," the Court wrote in Kyles, "but whether in its absence he received a fair trial, understood as a trial worthy of a confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the trial.'"7
An Officer's Duty to Disclose Evidence to the Prosecutor
Inevitably, some defendants sought to extend the reasoning in Brady to police officers. Rather than correcting alleged disclosure violations by police by remanding or reversing criminal proceedings, several courts in the late 1980s allowed defendants to file civil actions for damages in federal court against officers. Unlike prosecutors who are generally immune from civil actions for their prosecutorial acts, officers are accorded only qualified immunity. Essentially, officers were being held to the same standard as prosecutors but were treated differently when it came to the remedy available to the plaintiff.
One such example is McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996), where a former prison inmate sued several law enforcement officials for damages after a murder charge was dismissed against him. McMillian alleged, among other claims, that police officers violated his due process rights by withholding exculpatory and impeachment evidence from the prosecutor. Specifically, officers were accused of withholding three statements from the prosecutor that would have contradicted evidence that was admitted at trial.
In McMillian the court discussed the relationship of Brady to an officer's duty to disclose. "The Constitution imposes the duty to disclose exculpatory evidence to the defense to the prosecutor," the court wrote. "Investigators satisfy their obligation under Brady when they turn exculpatory and impeachment evidence over to the prosecutor." Id. at 1567. "Our case law clearly established that an accused's due process rights are violated when the police conceal exculpatory or impeachment evidence." Id. at 1569.
The court in McMillian relied on the approach adopted by the U.S. Court of Appeals for the Fifth Circuit, which reasoned that "police are also part of the prosecution, and the taint on the trial is no less if they, rather than the state's attorney, were guilty of the nondisclosure."8 The court wrote that "the duty to disclosure [sic] is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state's failure is not on that account excused." Id.9
In Jean v. Collins, 221 F.3d 656 (4th Cir. 2000), Jean was convicted of rape and first-degree sexual offenses. The court held that the government's failure to disclose audio recordings and accompanying hypnosis reports were Brady violations. The court noted that a police officer who withholds exculpatory information from a prosecutor can be liable under Section 1983 but only where the officer's failure to disclose the exculpatory information deprived the Section 1983 plaintiffs of their right to a fair trial. Id.
One Size Does Not Fit All
The role of the police is not the same as that of the prosecutor. Hence, it is inconsistent to hold the police to the same standard.10 Moreover, there are several good common-sense reasons for not holding officers to the same standard. The terms "exculpatory," "material," and "impeachment" are so steeped with technical legalistic meaning that even a trained prosecutor has difficulty determining when a piece of evidence falls within his or her duty to disclose.
Furthermore, evidence that is favorable to the defendant may not, in many circumstances, be identified as such until the entire case is ready for trial. In some investigations the accumulation of evidence occurs over a period of years. What may have been a seemingly meaningless statement made by a person early in the investigation may not actually be favorable to the defendant until it is compared to other pieces of evidence that are collected years later in the investigation. In other investigations the identification of the evidence as exculpatory does not occur until the defendant decides to produce his or her evidence. This in effect allows the defendant to control the timing of the when evidence will be identified as favorable&3151;a questionable tactic if officers are to be exposed to damages.
Reducing Liability Risks
Although the federal courts are divided as to the source of the obligation of officers to turn exculpatory evidence over to the prosecutor, it is clear that officers may be subject to liability in federal court for failing to do so. The dust has not settled sufficiently for us to determine just what minimal level of culpability must be involved before officers will be held liable for failing to disclose exculpatory evidence. Nevertheless, it is clear that officers acting in "bad faith" could be found to have committed an "affirmative abuse of power." If an officer commits an affirmative abuse of power then he or she has deprived a defendant of due process under the Fourteenth Amendment.11 An example of bad faith would be where officers knew the information was exculpatory but deliberately removed the information from the file so the prosecutor could not review the information.
Obviously this does not happen frequently. Nevertheless, it is difficult for officers to rebut allegations of bad faith. The fact that information did not make it over to the prosecutor opens the door to the assertion that it was done in bad faith. Essentially, it is better not to answer allegations of missing documents in the first place. The following are some common-sense suggestions that police departments may want to consider for reducing the risk of litigation on this issue.
Consider installing a tracking system that identifies when the entire file is transmitted to the prosecutor. There should be a way to verify that the prosecutor has acknowledged receipt of the investigative file. This way, the department can verify that the contents of the materials were in fact transferred to the prosecutor.
Discourage investigators from keeping a separate personal file of the investigation. Maintain the integrity of the official file. This prevents investigators from inadvertently forgetting to place material in the official file. The discovery of a statement anywhere other than the official file opens the door to allegations of deliberate nondisclosure. It is much easier to keep track of the investigation than to have to counter the allegation of intentionally mishandling a case.
Make sure the prosecutor is aware of "street" files that contain information on governmental witnesses. Always run government witnesses' names through these files. If you get a hit, the prosecutor needs to determine whether the information is exculpatory or effects the witness's credibility.
Come to a consistent understanding on the disposition of handwritten notes. Some investigators choose to discard the notes after they complete their reports. In this circumstance, investigators will have the burden of showing that as a matter of routine and habit they always recorded the entire contents of notes onto the report and therefore had no need to retain the notes. However, if your investigators discard their notes is because they don't want the defense to know about them, they are opening themselves up to allegations of deliberately destroying potential exculpatory statements.
Don't hesitate to document the precise dates and times you discuss the case with the prosecutor. The documentation will come in handy in the event there is a dispute as to whether you provided them with exculpatory evidence. Remember they have prosecutorial immunity, you don't.
Make sure recruit and in-service training includes training on an officer's duty to disclose exculpatory evidence. Do not rely solely on local and federal prosecutor's presentations. They tend to focus only on their duties under Brady and Giglio, rather than addressing the officer's duty to disclose.
Endnotes
Brady v. State of Maryland, 373 U.S. 89 (1968).
In Mooney v. Holohan, 294 U.S. 103, 112 (1935), the Supreme Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with "rudimentary demands of justice." This was reaffirmed in Pyle v. Kansas, 317 U.S. 213 (1942). In Napue v. Illinois, 360 U.S. 264 (1959), the Court continued with this line of reasoning and said, "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id. at 269.
Brady, 83 S.Ct. 1194, 1197.
"The principle [supporting the holding] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of justice suffers when any accused is treated unfairly." Id.
"When the reliability of a given witness may well be determinative of guilt or innocence nondisclosure of evidence affecting credibility falls within this general rule." Giglio v. United States, 405 U.S. 150, 153 (1972).
"Nevertheless, there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision for the judge. Because we are dealing with an inevitably imprecise standard and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prosecutor will resolve doubtful questions in favor of disclosure." United States v. Agurs, 98 S.Ct. 2392, 2400 (1976).
Kyles v. Whitley, 514 U.S. 419, 432 (1995), citing United States v. Bagley, 473 U.S. 667, 678 (1985).
Freeman v. Georgia, 599 F.2d 65, 69 (5th Cir. 1979), and Geter v. Fortenberry, 849 F.2d 1550 (5th Cir. 1988).
However, it is submitted that the precedent cited does not directly support the theory that officers should be held personally liable for failure to disclose exculpatory evidence to the prosecutor. At best, McMillian relies on authority that stands for the proposition that the officer's actions will be imputed to the state—not to him personally.
"The Brady duty is framed by the dictates of the adversary system and the prosecution's legal role therein. Legal terms of art define its bounds and questions as whether an item of evidence has exculpatory or 'impeachment' value and whether such evidence is 'material.' It would be inappropriate to charge police with answering these same questions, for their job of gathering evidence is quite different from the prosecution's task of evaluating it. This is especially true because the prosecutor can view the evidence from the perspective of the case as a whole while police officers, who are often involved in only one portion of the case, may lack necessary context. To hold that the contours of the due process duty applicable to the police must be identical to those of the prosecutor's Brady duty would thus improperly mandate a one-size-fits all regime." Jean v. Collins, 221 F3d 656 (4th Cir 2000).
In Jean, the court concludes the standard applicable to officers is analogous to the circumstances in Arizona v. Youngblood where the court refused to find officers violated the due process clause in the absence of evidence of bad faith on the part of the officers. (Officers failed to refrigerate evidence connected to a rape).
This column is prepared monthly by members of IACP's Legal Officers Section. Interested section members should coordinate their contributions with Elliot Spector at 860-233-8251.
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