By Adam C. Falco, Senior Assistant City Attorney and Police Legal Advisor, City of College Station, Texas
Before testifying in a U.S. court, each witness answers this oath: “Do you solemnly swear or affirm the testimony you are about to give in the case now on trial is the truth, the whole truth, and nothing but the truth, so help you God?” Today, more than ever, a bright light is focused on the truth, especially in criminal proceedings and law enforcement.
But what happens if a police officer has been untruthful before the trial? Does it matter if the officer’s untruthfulness is related to an internal department policy issue or to a criminal case? Could a sustained finding of officer untruthfulness, related or not to a criminal investigation, be the end of investigating criminal offenses and testifying in court—or even the end of a law enforcement career?
Police officer untruthfulness places a huge burden on chiefs and prosecutors. Case law guiding law enforcement on discovery of exculpatory and impeachment evidence includes Brady v. Maryland and its progeny.1 This line of cases attempts to prevent a miscarriage of justice by requiring the police and prosecutors to make available what is often referred to as Brady or Giglio material requiring the disclosure of exculpatory or impeachment evidence to the accused.2
In Brady, the U.S. Supreme Court held, [T]he 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.3
Since Brady, the duty to disclose such evidence is applicable even if there is no request by the accused.4 The duty to disclose includes impeachment as well as exculpatory evidence.5 In Brady, the defendant and his companion were both found guilty of murder and sentenced to death in separate trials. The prosecutor withheld a statement by Brady’s companion admitting to the actual homicide until after Brady’s conviction was affirmed. The U.S. Supreme Court ruled that Brady was denied due process of law in regards to the question of punishment, not the question of guilt.6
The heart of the holding in Giglio v. United States is closer to the officer untruthfulness issue.7 Giglio clarifies that the rule stated in Brady applies to evidence undermining witness credibility, including impeachment material.8 The impeachment evidence qualifies as material when there is any reasonable likelihood it could have affected the judgment of the jury.9 The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.10 In Giglio, defense counsel discovered new evidence indicating the government had failed to disclose an alleged promise made to its key witness. The alleged promise was that the key witness would not be prosecuted if he testified for the government. Without the key witness, there was no indictment or evidence against the defendant, Giglio. The credibility of the witness was important to the case against Giglio. Any evidence of an agreement as to future prosecution was relevant to his credibility, and the jury was entitled to have that evidence. A new trial for Giglio was ordered on due process violations.11
If law enforcement is in possession of Brady or Giglio material, the prosecutor has a duty to learn of any favorable evidence for the accused known to others acting on the government’s behalf, including the police.12 The rule even encompasses evidence known only to police investigators and not prosecutors.13 Most jurisdictions have policies, procedures, and regulations that guide law enforcement to ensure communication of all relevant information on each case to every lawyer involved in the case.14
To comply with Brady, prosecutors, as part of their policies and procedures, send letters expressly asking witnesses, especially law enforcement witnesses, for any Brady or Giglio material. The exculpatory or impeachment material asked for includes information related to allegations or findings of untruthfulness, lack of candor, or witness bias. The prosecutors’ letters also seek to find out whether any untruthfulness, lack of candor, or bias occurred in official capacity or off duty, in administrative or court proceedings, or in disciplinary actions. Just because this information is shared by law enforcement with the prosecutors and eventually with defense counsel, it does not mean it will be admissible in court.
But what happens when an officer has a Brady or Giglio issue related to untruthfulness? The police should notify prosecutors with exculpatory and impeachment evidence known to them, and the prosecutor is required to disclose that exculpatory and impeachment evidence. Not doing so will lead to civil liability for law enforcement. After disclosure, the officer will be known to have a Brady or Giglio issue.
So what does a chief do with an officer who is untruthful? Does it matter if the untruthfulness comes from a sustained finding pursuant to an internal affairs investigation, from undocumented counseling by a supervisor either from an on-duty or off-duty matter, from a minor “white lie” issue, or from dishonesty about a personal issue or criminal case? For the officer, the reality and result may be the same. The police and prosecutor must disclose the exculpatory and impeachment evidence, which will be given to the defense, and may end up being used in trial. If the officer is a key witness, the prosecutor likely will have serious reservations about accepting criminal charges on a case involving an officer with a Brady or Giglio issue. The prosecutor may refuse all cases from that officer. Testifying in court and credibility will always be questioned when it involves an officer with a Brady or Giglio history. A chief may have a valid reason not to retain such an officer, and it likely could mean the end of a law enforcement career for the untruthful officer.
Notes: 1 Brady v. Maryland, 373 U.S. 83 (1963). 2 Id.; Giglio v. United States, 405 U.S. 150 (1972). 3 Brady, 373 U.S., at 87. 4 United States v. Agurs, 427 U.S. 97, 107 (1976). 5 United States v. Bagley, 473 U.S. 667, 675–676 (1985). 6 Brady, 373 U.S., at 84. 7 Giglio, 405 U.S., at 150. 8 Id. at 153–155. 9 Id. at 154; see also Wearry v. Cain, 136 S. Ct. 1002, 1006, 577 U.S. ___ (2016). 10A “reasonable probability” is a probability sufficient to undermine the confidence in the outcome. Bagley at 682. 11Giglio, 405 U.S., at 154. 12The prosecutor’s responsibility for failure to disclose favorable evidence rising to a material level whether in good faith or bad faith in inescapable. Kyles v. Whitley, 514 U.S. 419, 437-438 (1995). 13Kyles, s, 514 U.S., at 438. 14Id.
This article is work product paid for by the City of College Station, TX. It is reproduced as a work in the public domain. It was published in Police Chief Magazine.