[Added 5-12-2022 by Res.
No. 2022-013]
It is the purpose of this policy to provide officers with the
information necessary to properly fulfill the reporting and testimonial
requirements mandated under the U.S Supreme Court decisions including
Brady v. Maryland 373 U.S 83 (1963) and Giglio v. U.S 405 U.S 150
(1972).
A.
The Brady decision and subsequent rulings have made it a duty of
all law enforcement agencies to identify and provide to the prosecution:
(1)
Any exculpatory material that would have a reasonable probability
of altering the results in a trial, or any material that could reasonably
mitigate the sentencing of a defendant, and
(2)
Any material relevant to the credibility of government witnesses,
including, but not limited to, police officers. It is the policy of
this police department to follow Brady disclosure requirements consistent
with the law.
B.
It is the policy of this police department to follow Brady disclosure
requirements consistent with the law.
As used in this article, the following terms shall have the
meanings indicated:
The affirmative constitutional duty of the police to notify
the prosecutor of any Brady material.
Brady violations, are by definition, violations of an individual's
14th Amendment right to due process of law. Exculpatory evidence is
evidence that is favorable to the accused; is material to the guilt,
innocence or punishment of the accused; and that may impact the credibility
of a government witness, including a police officer. Impeachment material
is included in the Brady disclosure requirements.
Exculpatory evidence is "material" if there is a reasonable
probability that disclosing it will change the outcome of a criminal
proceeding. A "reasonable probability" is a probability sufficient
to undermine confidence in the outcome of the trial or sentence of
a criminal case.
A.
Officers must include in their investigative reports, adequate investigative
information and references to all material evidence and facts that
are reasonably believed to be either incriminating or exculpatory
to any individual in the case. If an officer learns of potentially
incriminating or exculpatory information any time after submission
of a case, the officer must prepare and submit a supplemental report
documenting such information as soon as practicable. Supplemental
reports shall be promptly processed and transmitted to the prosecutor's
office. If evidence is discovered after trial is over, there is a
continuing duty to disclose such to the prosecutor's office.
B.
If information is believed to be privileged or confidential (e.g.,
informant or protected personnel files), the officer should discuss
the matter with a supervisor and/or prosecutor to determine the appropriate
manner to proceed.
C.
Evidence of facts are considered material if there is a reasonable
probability that they would affect the outcome of a criminal proceeding
or trial. Determining what is material often requires legal or judicial
review. If an officer is unsure, the officer should address the issue
with a supervisor. If the supervisor is unsure, the issue should be
addressed with a prosecutor.
D.
Suppression of evidence favorable to an accused violates due process
when the evidence is material either to guilt or to punishment, irrespective
to good or bad faith. There is no distinction between "impeachment
evidence" and "exculpatory evidence" for Brady-Giglio disclosure purposes.
E.
It is the prosecutor's responsibility to establish whether material
disclosed by this department must be provided to the defense.
F.
Allegations that cannot be substantiated, are not credible, or have
resulted in a person's exoneration are generally not considered
to be potential impeachment information.
A.
General provisions of disclosure.
(1)
The Chief of Police or his designee shall exercise due diligence
to ensure that material of possible Brady relevance is made available
to the office of the prosecutor, including working with the prosecutors'
office to determine what constitutes Brady-Giglio information and
the method for notification and disclosure.
(2)
The Chief of Police or his designee shall maintain a current
list of officers who have Brady-Giglio information in their files
or background, and update this list whenever any potential Brady-Giglio
information becomes known to the Department or is placed into a personnel
or internal affairs file.
(3)
The defense is not required to request potential Brady material.
It is the Chief of Police or his designee's responsibility to
disclose such material as soon as reasonably possible to the office
of the prosecutor, or in time for effective use at trial. Responsibility
for disclosing such material extends from indictment through the trial
and sentencing process.
(4)
It is the prosecutor's responsibility to establish whether
material disclosed by this department must be provided to the defense.
(5)
Information in an officer personnel file that is related to
Brady-Giglio matters may be provided or open to the prosecution or
defense as part of a Brady-Giglio disclosure requirement.
(6)
If Brady-Giglio information is located within a personnel file,
the following procedure shall apply:
(a)
In the event a motion has been filed by the defendant or other
party, the prosecuting attorney and officer whose file is related
to the motion shall be notified of the potential presence of Brady-Giglio
information.
(b)
The prosecutor should be requested to file a motion in order
to initiate an in-camera review by the court.
(c)
If no motion is filed, the Chief of Police or his designee should
work with the prosecutor to determine whether the records should be
disclosed to the defendant.
(d)
The Chief of Police or his designee shall accompany all relevant
personnel files during any in camera review or review by the prosecutor
and address any issues raised by the Court or prosecutor.
(e)
If it is determined that there is relevant Brady-Giglio information
contained in the files, only that information ordered released will
be copied and released to the parties.
(f)
Prior to any release of any information, a protective order
should be requested from the court limiting the use of such information
to the involved case and requiring the return of copies upon completion
of the case.
(g)
If the court has determined that relevant Brady-Giglio information
is contained in an officer's file in any case, the prosecutor
should be notified of that fact in all future cases involving that
officer.
B.
Examples of Brady material.
(1)
Examples of Brady material that may be subject to disclosure
include, but may not be limited to, the following:
(a)
Information that would directly negate the defendant's
guilt concerning any count of an arrest/indictment.
(b)
Information that would cast doubt on the admissibility of evidence
that the government plans to offer that could be subject to a motion
to suppress or exclude.
(c)
Any criminal record or criminal case pending against any witness
whom the prosecution anticipates calling.
(d)
The failure of any proposed witness to make a positive identification
of a defendant.
(e)
Information that casts doubt on the credibility or accuracy
of a witness or evidence.
(f)
An inconsistent statement made orally or in writing by any proposed
witness.
(g)
Statements made orally or in writing by any person that are
inconsistent with any statement of a proposed government witness regarding
the alleged criminal conduct of the defendant.
(h)
Information regarding any mental or physical impairment of any
governmental witness that would cast doubt on his or her ability to
testify accurately and truthfully at trial.
(i)
Information that tends to diminish the degree of the defendant's
culpability or the defendant's offense level under state or federal
sentencing guidelines.
(j)
A finding of misconduct by a Civil Service Commission that reflects
on the witness's truthfulness, bias, or moral turpitude. This
includes employees under suspension.
(k)
Evidence that a proposed witness has a racial, religious, or
personal bias against a defendant individually or as a member of a
group.
(l)
Evidence of an officer's excessive use of force, untruthfulness,
dishonesty, bias, or misconduct in conjunction with his or her service
as a law enforcement officer.
C.
Duty to report.
(1)
Officer adherence to departmental policy and rules in all matters
is an imperative of his or her office. Breaches of such rules and
polices related specifically to honesty and veracity may have direct
bearing on his or her ability to continue serving as a law enforcement
officer and may be subject to Brady-Giglio disclosure requirements.
(a)
It is the obligation of individual officers to inform their
superior officer of any elements of their employment as a police officer,
information contained in investigative reports or evidence connected
with a criminal indictment or trial that they reasonably believe may
be subject to Brady disclosure.
(b)
Supervisory officers are responsible for ensuring that they
act with due diligence in identifying any potential Brady material
connected with any criminal proceeding for which they have oversight
and for bringing such material to the attention of the prosecutor
in a timely manner through established reporting procedures.
(c)
If the Department receives information from any source that
an officer may have issues of credibility or dishonesty or has engaged
in an act of moral turpitude or criminal conduct, the information
shall be investigated and processed in accordance with Department
policy.
