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- Duty to Disclose: The landmark decision of Brady
v Maryland (1963) places an affirmative constitutional duty on
a prosecutor to disclose exculpatory evidence to a defendant.
has been extended to police agencies through case law,
requiring law enforcement agencies to notify the prosecutor
potential exculpatory information.
- Exculpatory Evidence/Brady
Material: Evidence in the government’s possession
that is favorable to the accused and that is material
to either guilt or punishment,
evidence that may impact the credibility of a witness.
The landmark decision of Brady v Maryland i and its progeny
is perhaps one of the most significant Supreme Court decisions
to ever impact the criminal justice system. Unfortunately,
many law enforcement agencies nationwide have failed to
train their officers on their obligations to disclose exculpatory
material as a result of the Brady decision.
In 1963, the
Supreme Court ruled in the Brady case that the government
has a duty to disclose material evidence
to the defense, which could tend to change the outcome
of a trial. This exculpatory evidence, often referred to as “Brady
Material,” could tend to prove that the accused
party is innocent or cast doubt of their guilt.
this mean in realistic terms for law enforcement
officers? The following are just a few examples of the types
of situations in which investigators could find themselves
aware of exculpatory evidence, which should be documented
and provided to the prosecuting authorities. It is the prosecutor,
under Brady, who must decide if the information is exculpatory
and whether it must be disclosed to the defense. The law
enforcement officer’s obligation is to inform the
prosecutor of the information.
Consider the following hypothetical
- Detective Jones is handling a rape investigation
and develops information of a potential suspect who
was seen leaving the scene in a white pick-up truck. The investigator
displays a photo line-up to the victim and she identifies
the suspect, who does own a white pick-up. No forensic
evidence connecting the suspect to the crime is initially
discovered. During the course of the investigation, a
witness is located
during the area canvass who claims to have seen a beige
pick-up truck in the area driven by a dark skinned male
in his 30’s. The identified suspect is a light skinned
male in his 20’s. The investigator does not document
this information in his report because it contradicts
the probable cause he has developed in his case.
Smith is handling a murder investigation. He develops
a suspect who is of limited intelligence and
brings him to the station for questioning. After questioning
him over a period of days, he informs the suspect that
if he confesses, he will be allowed to go home. The suspect
confesses and is taken into custody and charged with
murder. Detective Smith fails to document his promise of allowing
the suspect to go home in exchange for confessing, and
does not inform the prosecutor.
- Detective White is handling a robbery investigation
in which a victim is shot. He discovers a footprint
near the scene, which he has photographed and lifted. He subsequently
arrests a suspect who is wearing a size 9 shoe. The
print is a size 11 sneaker and Detective White discards
the footprint evidence believing it is unrelated to
the crime. He fails to document this information.
- Detective Evans displays photo line-ups to three witnesses.
Two of the witnesses identify a suspect; however, the
third witness fails to identify anybody. Detective Evans documents
the two positive identifications but does not document
the third witness failed to identify the suspect and
Detective Evans never informs the prosecutor.
- Detective Williams is the lead detective in a homicide
case and took a confession from the defendant. His supervisor
is aware that five years earlier, Williams received
a suspension falsifying a police report. This information is never
to the prosecutor.
In all of these cases, the suspects are convicted, incarcerated,
and later declared innocent as a result of DNA evidence,
which was not available at the time of the original investigations.
Following their release, all of the individuals file multi-million
dollar lawsuits against the investigators, their supervisors,
and their agencies for Brady violations. Their attorneys
argue successfully that had their defense attorneys been
provided with the exculpatory evidence in these cases, the
defendant’s might not have been wrongfully convicted.
first question that will be asked during the litigation
will be did the investigators receive any training about
their duty to disclose exculpatory evidence and, secondly,
did the agency have a policy in their departmental regulations
requiring officers to disclose exculpatory evidence. If
the answer is no training was provided and no policy existed,
the agencies will likely be liable for substantial damages
for failing in their duties under Brady v Maryland to
disclose exculpatory evidence.
In 1972, the Giglio v United
States ii case expanded the Brady decision to require prosecutors
to provide information to
the defense counsel which could tend to impeach a witness.
For example, if a witness is motivated to testify in exchange
for a lighter sentence, that information must be disclosed.
This includes information about the credibility and veracity
of the testimony of police officers. If an officer has
a past record of falsifying reports or other conduct which
could impact their truthfulness, the Giglio Case requires
that the prosecutor provide the defense with that information.
Note: It is critical that when an agency sustains charges
against an officer for falsification that they ensure they
have the required evidence to support that charge. Having
a sustained allegation for falsification can effectively
destroy an officer’s career since he/she will forever
be an impeachable witness.
The best defense against the civil
litigation filed as a result of Brady v Maryland is to ensure the following
has been accomplished:
- All officers have been
properly trained on their obligations and duty to
disclose exculpatory material.
- The agency has a policy which requires that officers
document exculpatory information and provide it to the
- The agency has informed investigators via training
and policy concerning their obligations as a result
of the Giglio Case, including informing prosecutors of information
which could impeach the testimony of their officers.
Law enforcement agencies should reach an agreement with their
prosecutors on the best mechanism for handling the Giglio
issues involving police officers.
- Brady v. Maryland, 373 U.S. 83 (1963).
- Giglio v. United States, 450 U.S. 150 (1972).
Author Steve Rothlein is a regular instructor at the annual
Western States Training Conference.
About the Author:
Steve Rothlein was a 30-year veteran of the Miami-Dade
Police Department. During his career, he served at all ranks in nearly
all investigative units including Narcotics and Internal Affairs.
Steve regularly presents training for IACP and PATC. He has lectured
about internal affairs issues to the DEA, FBI, U.S. Marshal’s
Service and has twice been selected to speak on integrity issues
at the Major City Chiefs Association.