By Daniel J. Leffler
In the Spring 2014 Edition of the Police Beat, OPBA Attorney Joe Hegedus discussed whether a police officer’s personnel file must be disclosed to a defendant in light of Brady v. Maryland, 373 U.S. 83 (1963) and its subsequent line of cases. In that article, Attorney Hegedus pointed out that the Supreme Court in Bradyheld “that the 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, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The Court has also held, “that the duty to disclose such evidence is applicable even though there has been no request by the accused.” United States v. Agurs, 427 U.S. 97, 107, (1976). The Court expanded the duty to disclose evidence where, “the duty encompasses impeachment evidence as well as exculpatory evidence.” United States v. Bagley, 473 U.S. 667, 676, (1985). In Kyles v. Whitley, 514 U.S. 419 (1995), the Court defined what evidence is “material” by stating, “Such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Kyles, 514 U.S. 419, 433-434. Attorney Hegedus cited numerous subsequent cases that detail the present state of the law related to Brady and the duty to disclose, none of which broadens the responsibilities of prosecutors to disclose all matters in an officer’s personnel file in all cases.
Unfortunately, as part of another attack on the profession, this time legal counsel and advocates for Employers have attempted to seize on Brady as a means to justify disciplining or terminating an officer. Employers and apparently some prosecutors have advocated for a broad “Brady List” which, in theory, would exclude a police officer who has ever been alleged to have been dishonest or untruthful from remaining employed as a police officer. A Google search of “Brady list” or “Brady Cops” will show over 500,000 results. These advocates seem to suggest that there would be a departmental list of officers who have been alleged to be untruthful and as a result, those officers’ credibility would be damaged to the point that they could never testify in court. The theory asserts that the final conclusion to the process is that the officer must be terminated. What these advocates seem to ignore is the present state of the law and the difficulty in determining what conduct qualifies one to be placed on “the list.” What this leads to is Employers randomly selecting which officers they want to terminate and then justifying it by using Brady. Random discipline is directly contrary to the “just cause” standard in the CBA. What is most troubling is that the theory is advanced by advocates who are often hired by the Employer for the disciplinary or termination arbitration to “win-at-all-cost” and don’t have to deal with the consequences or aftermath to the Employers, the officers or the greater cost on the law enforcement community. Employers should realize the long-term damage to their own interests.
In 2003, Police Chief Magazine detailed the difficulty of such a theory. In discussion Brady, Mr. Jeff Noble noted that many departments had instituted a No Lies rule. “The No Lies rule causes managers to deem that Brady has taken their discretion [for termination] away on these cases that fall outside the justified or excusable [conduct] categories. But removing management discretion is not the Brady rule.” Id. “First, it is important to understand that even though the defense gets the information – and they should get it – there is no guarantee that the defense will be able to present the evidence of officer misconduct to the jury. It is the court, not the defense, that makes this determination. In its decision to admit evidence, the court will weigh the evidence to determine if it is more probative than prejudicial. Not all evidence of deceptive conduct by an officer will be admissible.” Id. Evidence that an officer lied in their private life to protect their own interest “would be prejudicial against the officer’s credibility, but at the same time it offers very little probative evidence on the officer’s credibility while testifying in court and therefore most judges would not permit this evidence to be introduced.” Id. “Courts are likely to treat many administrative lies in the same manner.” Id.
As the Supreme Court also noted in Strickler v. Greene, 527 U.S. 263 (1999), citing United States v. Bagley, 473 U.S. 667 (1985) and Kyles v. Whitley, 514 U.S. 419 (1995) “evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Strickler, 527 U.S. 280-281. “*** [Under] the prosecution’s broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust. Thus the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called ‘Brady material’ — although, strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” Id. (Emphasis added).
In my opinion, there can be no broad Brady list or officer exclusion, because the prosecutor’s determination of whether the disclosure of a police officer’s prior disciplinary record is necessary and exculpatory must be made on a case-by-case basis relative to the evidence in that case. Further, even if disclosed, courts will weigh the evidence to determine if it is more probative than prejudicial. Not all evidence of deceptive conduct by an officer will be admissible. Finally, neither employers nor prosecutors have developed a standard on which to determine what conduct qualifies an officer for inclusion on a “Brady list” or for testimonial exclusion.
 Noble, Jeff, Police Officer Truthfulness and the Brady Decision, The Police Chief, vol. 70, no. 10, October 2003.