Saturday, February 18, 2012
Laura L. Scarry
W ithout question, as a sworn LEO, you have received training regarding your duty to disclose to the prosecution material and/or exculpatory evidence in any case you’re involved with. What? You say you haven’t received such training? Well, you’re certainly aware of the obligations imposed on the prosecution and police by the landmark decision of Brady v. Maryland1 and its progeny, right? No? Well, your failure to disclose such evidence can result in civil liability not only against your agency, but against you.
Personally, I’m not surprised to hear LEOs from around the country tell me they’re unfamiliar with the Brady decision. Despite Brady having been decided nearly 50 years ago, training on this topic and what it means to police officers from a practical standpoint is woefully insufficient. However, what is surprising is the assumption by prosecutors, judges and civil rights attorneys that LEOs are keenly aware of what exculpatory evidence is and their obligation to disclose such evidence to prosecutors.
Brady v. Maryland & Its Progeny
In 1963, the U.S. Supreme Court ruled that the government has a constitutional duty to disclose material evidence to the defense in a criminal prosecution. Specifically, the Court held that “the suppression by the prosecution of evidence favorable to an accused [exculpatory] upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”2 “Due process” is the constitutional provision under the Fifth and Fourteenth Amendments that guarantees a person’s life, liberty or property won’t be taken from him without first being accorded due process or fundamental fairness.
In Strickler v. Greene,3 the U.S. Supreme Court stated, “. . . the duty to disclose [Brady] evidence is applicable even though there has been no request by the accused,4 and that the duty encompasses impeachment evidence as well as exculpatory evidence.5 Such evidence is material ‘if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.’”6
Material evidence includes evidence that relates to a witness’ credibility. The obligation to turn over this evidence to the criminal defense is an ongoing duty of the prosecutors, and if violated, could jeopardize the criminal case and could form the basis for a later civil rights lawsuit in the future. This type of evidence could include a witness who has been offered a deal by the prosecution.
Often, police officers testify as witnesses in a criminal case and, as such, they may be subject to impeachment by the introduction of information that could cause a judge or jury to question the officer’s motives and/or credibility. If an officer who’s going to testify has written false reports or given false statements, that evidence must be disclosed by the prosecution to the criminal defense.
A Brady violation comprises three components:
1. The evidence at issue must be favorable to the accused because it’s exculpatory, or because it’s impeaching;
2. The evidence must have been suppressed by the State, either willfully or inadvertently; and
3. Prejudice must have ensued.7
Failing to comply with the rules under Brady results in what’s commonly known as a “Brady violation,” which yields serious consequences including the exclusion of witness testimony, dismissal of a case, reversal of a conviction on appeal and a new trial for the accused.
Tennison v. City of San Francisco
In addition to jeopardizing the criminal prosecution, Brady violations can result in civil liability under 42 U.S.C. § 1983 against police officers. In Tennison v. City of San Francisco,8 John Tennison and Antoine Goff filed a civil rights lawsuit against two homicide inspectors, the city and the county, alleging the inspectors withheld exculpatory evidence and manufactured and presented perjured testimony during their murder investigation and prosecution. The inspectors filed a motion for summary judgment arguing they were entitled to immunity for their actions. The district court denied their motion and the inspectors appealed.
A vehicle driven by Roderick Shannon had been chased by several men in a pickup truck. Shannon crashed into a fence and the men surrounded him and beat him. Someone then fired a weapon and killed Shannon. Two homicide inspectors were assigned the case. They developed probable cause to believe that Tennison and Goff were involved in the shooting.
After the two men were arrested, the inspectors received a phone call from Chante Smith, who claimed to have witnessed two people chasing Shannon. She identified them as Luther Blue and Lovinsky Ricard. Smith also asserted that Ricard was the shooter. She said that Tennison and Goff weren’t present at the shooting. When questioned later, Ricard denied that he was the shooter.
A memo regarding these developments was included in the file that was sent to the prosecutors. However, the inspectors never discussed these facts with the prosecutor. Nor were the defense attorneys made aware of the memo. Ultimately, Tennison and Goff were convicted.
Immediately thereafter, two other officers who had worked on the Shannon murder arrested Ricard on an unrelated narcotics warrant. After giving Ricard his Miranda warnings, they questioned him about the murder. The interview was videotaped. Ricard admitted that he was the shooter and provided details that were consistent with those given by Smith.
One of the officers testified that he provided the taped interview to one of the inspectors, but for whatever reasons, the video and the fact that Ricard confessed weren’t disclosed to the prosecutor or the defense attorneys until it was disclosed inadvertently on the third day of a hearing on Tennison’s motion for a new trial. Even so, the motion for a new trial was denied as the criminal court ruled the tape was inadmissible and, even if the tape was admissible, Ricard’s statements contained so many inconsistencies that they couldn’t be trustworthy.
Nearly 13 years after their arrest and after filing a habeas petition in federal court, Tennison and Goff’s convictions were vacated, they were released from custody and both were declared factually innocent. They then filed a federal civil rights action asserting the inspectors had withheld exculpatory evidence in violation of Brady v. Maryland. The inspectors appealed the federal district court’s denial of their motion for summary judgment.
The Appellate Court Decision
The two central issues on appeal were the failure to disclose Smith’s statement and Ricard’s confession. Preliminarily, the inspectors argued that the duty to disclose exculpatory evidence belongs to the prosecutors, and not to police officers. The court rejected the argument, stating it has held “exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it, and by allowing the prosecutor to tell the investigators not to give him certain materials unless he asked for them.”9
The court noted that the inspectors’ position was also untenable in light of the Supreme Court’s admonition that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’”10
Regarding Smith’s statement, the inspectors argued, rightfully so, that they hadn’t withheld the information given by Smith. Indeed, the inspectors placed a summary of her statement in the file to the prosecutors. However, the court found this wasn’t enough. It ruled that officers must affirmatively notify prosecutors of the existence of such evidence. “Placing notes regarding Smith’s statements in the police file did not fulfill the inspectors’ duty to disclose exculpatory information to the prosecutor. Evidence that a person, known to the officers, has told the officers that they have arrested the wrong people, has identified the people involved, including the shooter, and described the cars and the chase in a manner consistent with the evidence, should not have been buried in the file, but should have been made known to the prosecutor.”11
With respect to Ricard’s confession, the inspectors argued that they didn’t commit a Brady violation because the defense attorney was eventually made aware of the confession at the hearing on the motion for a new trial. However, the appellate court agreed with the district court that it was much too late for the disclosure to be of value to Tennison and Goff. The inspectors also argued that they didn’t have a duty to disclose a confession that was made after a guilty verdict was rendered, that was “inherently unbelievable,” and that was given by someone who earlier had denied involvement in the murder.12
However, the court found that the inspectors received a “Mirandized confession by someone who had been named by a reliable witness, known to the officers, who recounted events surrounding the murder in detail, and whose account contradicted that of the prosecution’s witnesses. The evidence certainly ‘undermines confidence in the outcome of the trial.’”13 It would have been clear to a reasonable officer that such evidence should have been disclosed to defense attorneys.
The court also rejected the inspectors’ attempts to “dismiss their Brady duty by downplaying the importance of the evidence. [I]f there were questions about the reliability of the exculpatory information, it was the prerogative of the defendant and his counsel—and not of the prosecution—to exercise judgment in determining whether the defendant should make use of it, because ‘[t]o allow otherwise would be to appoint the fox as henhouse guard.’”14 For these reasons, the appellate court affirmed the district court’s denial of the inspectors’ motion for summary judgment on qualified immunity grounds.
The Bottom Line
Although several big city and county agencies have established protocols regarding the disclosure of Brady materials, many agencies haven’t. More importantly, agencies often don’t provide any meaningful training to officers on this important issue. Anecdotally, many officers haven’t even heard of the Brady v. Maryland decision and its progeny, or its impact on them from a civil liability aspect.
Now that you’re aware that you can be civilly liable for the failure to disclose Brady materials, you must demand appropriate training on your obligation to disclose exculpatory materials to prosecutors. It’s only fair that you receive this necessary training in light of the fact that you can be held personally liable for your inaction.
1. 373 U.S. 83 (1963).
2. Id. at 87.
3. 527 U.S. 263, 280-281 (1999).
4. United States v. Agurs, 427 U.S. 97, 107 (1976).
5. United States v. Bagley, 473 U.S. 667, 676 (1985).
6. Id. at 682. See also, Kyles v. Whitley, 514 U.S. 419, 433-434 (1995).
7. Strickler, 527 U.S. at 281-82.
8. 570 F.3d 1078 (9th Cir. 2009).
9. Tennison, 570 F.3d at 1087 (citing United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004)).
10. Id. (citing Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006)).
11. Id. at 1090.
12. Id. at 1093.
13. Id. at 1094 (citing Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002)).
14. Id. (citing DiSimone v. Phillips, 461 F.3d 181, 195 (2nd Cir. 2006)).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.