New Frontier in Failure to Train

This month Val Van Brocklin continues to look at the long reach of Brady v. Md . Venture with her into the new litigation arena of failure to train officers in this complex area of law and all the attending consequences for departments and individual...


Last month on officer.com

Last month we looked at how the U.S. Supreme Court case of Brady v. Md. and its progeny might require:

  • Police agencies to turn over to prosecutors evidence that might be used by the defense to impeach an officer's testimony - including false statements or other evidence of the officer's dishonesty AND
  • Prosecutors to turn that evidence over to criminal defense attorneys, or, in the alternative, not use the officer as a witness.

(See web link below to Brady v. Md. Can Get You Fired.)

Also a concern to police brass

I directed last month's article about the long reach of Brady - including civil liability and job loss - primarily to line officers. I was and remain concerned that they are not being properly trained on other potentially far-reaching consequences for dishonest conduct that might not result in immediate termination.

Commander Jeff Noble addressed some of the same issues for police executives in an article for Police Chief magazine. The Commander opined that the Brady cases were why many departments instituted "No Lies" or dishonesty policies as terms of employment. If evidence of dishonesty or untruthful statements by an officer must be turned over to the defense, and the prosecution chooses not to use the officer as a witness because of this, this could arguably render the officer unable to perform a critical job function - testifying - a justification for termination separate from the dishonest conduct.

A point of clarification

Before we look at what must be done to safely navigate the requirements of Brady v. Md and its progeny, I need to clarify something suggested by a reader of last month's article.

The fact that the prosecution may be required to disclose evidence of an officer's dishonesty or false statements to a defense attorney does not mean that evidence is automatically admissible. Evidence Rule 608(b) governs the admissibility of specific acts to impeach the credibility of a witness.

Under Rule 608(b) and Rule 403, specific instances of conduct may be inquired about on cross examination if their probative value of truthfulness outweighs the danger of undue prejudice. This decision is largely left to the discretion of the trial judge.

I have stated before that judges are lawyers and you can't get two lawyers to agree to kill a rat in a bathtub. Stephen Saltzburg, an eminent scholar on rules of evidence, has noted that Rule 608(b) has been interpreted by state and federal courts with increasing confusion.

Given this disagreement and confusion, do you, an officer, want to rely on

  • A prosecutor's inclination and ability to argue the nuances of Brady's disclosure requirements vis a vis admissibility under Rule 608(b) AND
  • A trial judge's ruling AND
  • Whether appellate judges will agree or disagree with the trial judge

to keep evidence of prior false statements or dishonesty from being introduced in a criminal trial to impeach your credibility? If you do, I have some costume jewelry and Florida everglade property I'd like to show you.

Something new has been added

Nearly 20 years ago the 2nd Circuit held in Walker v. City of New York, 974 F.2d 293 (1992) that a claim that a police department had no policy on the proper handling of exculpatory evidence might provide the basis for "deliberate indifference" under a 42 U.S.C. ยง 1983 cause of action.

There have been many calls since Walker for police departments and prosecutors' offices to develop Brady policies and protocols. See web links below. Last month I added reasons that bear more on individual officers' careers than agency liability.

There's more. Since last month, I learned that the U.S. Supreme Court has agreed to hear Connick v. Thompson next month. This case addresses whether a single Brady violation committed by a district attorney's office is sufficient to impose failure-to-train liability. The DA's office is appealing the Fifth Circuit's decision to uphold a $15 million verdict against it. That's roughly equal to the office's annual operating budget and could bankrupt it.

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