Brady v. Md Can Get You Fired

Did you know you could be civilly liable for failing to collect and preserve exculpatory evidence for the defendant?


Could this happen to an officer you know?

A new officer has just started working midnights. He's been taking care of a sick kid during the day and fails to answer his radio because he fell asleep. His Lieutenant asks him what happened. He tells her he must have turned his radio off by mistake. She tells him to write a memorandum for the Captain by the end of the shift.

The officer writes the memo with the same story. The matter gets referred to I.A. The officer comes clean in the I.A. interview. (From Plain English for Cops, Nicholas Meier and R.J. Adams (1999).)

Let's say the department negotiates with the union for an agreed upon sanction of 30-days suspension without pay, an extended 6-months probationary period and successful completion of a 2-day Integrity Seminar with the National Institute of Ethics which the officer must pay for himself. The officer takes the experience as a good-lesson-hard-learned and strives thereafter for the highest standard of integrity.

I make no excuse for this officer's dishonesty. Neither am I totally unsympathetic. To error is human, to forgive divine, said English poet Alexander Pope. Most of us have needed, and likely will need in our futures, some forgiveness.

This officer may or may not have considered the ramifications of lying to his Lieutenant and Captain. He clearly considered the consequences of lying to I.A. and made the right decision there. I doubt this officer stopped to consider that his department is required to advise the prosecutor's officer of this matter and that the prosecutor is required to disclose it to the defense in every criminal case in which the officer will testify over the course of his career. I further doubt this officer considered the cross examination and closing argument by the defense attorney,

Ladies and Gentleman of the jury, consider the testimony of Officer _____. The prosecution calls as THEIR witness and asks you to believe a man who will lie to his OWN brother and sister of the shield about a relatively small matter. You have to ask yourselves what such a documented liar might do when the stakes are as high as they are in this case.

Lastly, I doubt the officer weighed the odds of the prosecutor's office advising the Chief they wouldn't take any case in which the officer was a witness because they didn't want the defense cross examination and closing argument tainting the rest of the case. If the officer isn't able to testify in any criminal proceeding, how does he stay employed?

The long arm of Brady v. Maryland

In Brady v. Maryland (1963), the Supreme Court held that prosecutors have an affirmative duty to disclose all exculpatory evidence to the accused. Subsequent case law expanded Brady's obligations to law enforcement officers and defined exculpatory evidence as any evidence that could be favorable to the accused. This may include:

  • Evidence relevant to guilt or innocence.
  • Evidence relevant to the appropriate punishment.
  • Evidence relevant to a witness' credibility, including evidence the defense might use at trial to impeach a witness. Giglio v. U.S., (S. Ct. 1972).

Relevant impeachment evidence might include, but is not limited to:

  • A witness who has been offered a deal, e.g., dropped or reduced charges, sentencing consideration.
  • A witness who received a reward.
  • Other facts bearing on a witness' credibility, e.g., evidence that a police officer who will testify has written or otherwise made false reports or statements; evidence that a witness has made inconsistent statements.

The obligation to turn over exculpatory evidence to the defense is ongoing - it extends beyond conviction and sentencing. Moreover, Brady and its progeny have firmly stated that the good faith or bad faith of a prosecutor (and by extension the police) in failing to disclose exculpatory evidence is irrelevant.

The consequences of a Brady violation can be significant and include:

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