(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.