New Frontier in Failure to Train

Last month on

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. § 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.

(The Amicus Curiae brief by the National District Attorney's Association helps spell out the issues and what's at stake. See web link below.)

For purposes of this article it is worth noting that prosecutors generally enjoy greater immunity than police officers. (See web link below to Civil liability and police-prosecutor relations.)

A new frontier of failure to train

The wave of liability for police departments' and prosecutors' offices failure to train officers and prosecutors on their Brady obligations is gathering tsunami force.

From the 6th Circuit's holding in Gregory v. City of Louisville, 444 F.3d 725 (2006) that the plaintiff had a claim the city failed to train police on how to handle exculpatory evidence to the 5th Circuit's ruling in Connick v. Thompson, police agencies and prosecutors' offices continue to ignore the need for training in this area at their peril.

I am stunned as I travel the nation at the ignorance of law enforcement officers regarding their Brady obligations and the potential consequences to their departments and their careers for failing to meet them. Ignorance is not stupidity. It is a lack of knowledge or information. I do not fault the front line officers. I fault their departments and their prosecutors' offices for failing to properly train them and to set up protocols and mechanisms for meeting their obligations.

The best defense is an offense

Officers and prosecutors alike must believe their leaders have a sincere and sustained commitment to ensuring that they will be equipped with the necessary knowledge and mechanisms for meeting their Brady obligations. Toward this end, and to protect against the gathering of a "perfect storm" of Brady litigation - civil and criminal - law enforcement agencies and prosecutors' offices, working together, should:

  • Conduct audits of both the police agency and prosecutors' office as to where and how information is kept. The audit should focus on the information gathering and retention functions of divisions within the offices. Divisions on the law enforcement side might include dispatch, crime stoppers, reward offers, investigations, internal affairs, and personnel actions. On the prosecution side - intake, screening, pretrial preparation, victim and witness coordination, etc., would be examined.
  • Continue to audit new technology as potential repositories of Brady evidence - e.g., video cameras in patrol cars, mobile data computers, land line and cellular phone messaging systems, email, tweets and twitters.
  • Develop written policies requiring officers to document exculpatory information, including evidence that might be used to impeach officers and other witnesses, and provide the same to prosecutors.
  • Develop written policies that require prosecutors to turn exculpatory evidence over to defense attorneys, or, when in doubt, to the proper court to determine whether the defense attorney is entitled to such evidence. Too many cases indicate that relying solely on prosecutors' knowledge and observance of Brady and its progeny has not ensured compliance, especially since individual prosecutors can disagree on what constitutes "exculpatory." (See web link below to Bad Faith Exception to Prosecutor's Immunity for Brady Violations and Harvard Law Review article on Thompson v. Connick.) Prosecutors may wish to review Treatment of Brady v. Maryland Material in United States District and State Courts' Rules, Orders, and Policies - a report on the extent to which federal district and state courts have adopted rules or standards that provide prosecutors with specific guidance on discharging their Brady obligations. (See web link below.)
  • Develop protocols and mechanisms for the discovery of Brady evidence by police to the prosecutor and by the prosecutor to the defense or court, including evidence that might be used to impeach police officers. Protocols for both officers and prosecutors might include Brady checklists as part of the case file management and signed acknowledgement from the prosecutor's office for the reception of such materials from the police.
  • Include compliance with Brady legal requirements, policies and protocols in terms of employment. These might include, for example, notice that an agency has determined that testifying is a critical job function and an officer may be terminated if the prosecutor's office decides misconduct on the officer's part constitutes impeachment evidence that must be turned over to the defense and renders the officer unusable as a witness - even if the misconduct itself does not warrant termination. Comparable employment terms should be specified for prosecutors regarding their Brady duties.
  • Include evaluations of officers' and prosecutors' performance of their Brady duties in job performance assessments.
  • Properly train officers and prosecutors on their obligations to disclose exculpatory material as well as the liabilities for falling to do so. This training should include relevant case law as the basis for scenario-based training as well as agency policies, protocols, terms of employment and potential consequences and liabilities.

Additional resources

In addition to my own ideas, I drew from

  • Julie Risher's article Chief's Counsel: Brady Is Middle-Aged - But Is Compliance in Its Infancy for Some Agencies?
  • Lou Reiter, co-director of the Legal Liability and Risk Management Institute’s, article Brady - The Next Step for Law Enforcement

for the above-listed recommendations.

Risher interestingly suggests that effective Brady training would include the impact of "tunnel vision." This phenomenon can cause investigators to discard information that does not support a hypothesis and to focus on information that does. The information that does not support a hypothesis may prove to be exculpatory - at least that's what a defense attorney might convincingly argue.


Law enforcement agencies and prosecutors' offices are facing a gathering storm of Brady litigation and action by the courts and possibly Congress.

In the wake of widespread Brady violations in Baltimore, the Maryland Court of Appeals adopted many recommendations from the American College of Trial Lawyers establishing bright line Brady obligations. Following the dismissal by Attorney General Eric Holder of felony convictions of Alaska's then Sen. Ted Stevens for Brady violations there have been calls for Congress to codify the government's Brady obligations. (See web link Look to Brady decision for fair trial standards.)

We should pro-actively set our own policies and mechanisms for compliance. The choice is ours. Now is the time to act.