Prosecutors and police have a duty to seek out and voluntarily disclose every bit of evidence that helps a person accused of a crime defend themselves from prosecution. This kind of “exculpatory” evidence can come in the form of improper evidence handling, insufficient officer training, negative officer performance reviews, and even dishonesty or wrongdoing by a police officer.
The Prosecutor’s Disclosure Obligation
Angus Lee
Unfortunately, not all police officers or prosecutors understand the full extent of this obligation. In fact, some police officers in Washington have even actively attempted to keep information about their past misconduct secret from those they have accused of a crime.
The duty to disclose derives from (1) the Constitutional Due Process requirement for disclosure set out in Brady v. Maryland, (2) the Criminal Rules on discovery, and (3) the Rules of Professional Conduct.
Here we provide an overview designed to give a basic understanding of the duties and obligations of the government as they relate to disclosure obligations. We end with a brief discussion of the new model policy on Potential Impeachment Disclosure (PID), and new areas of future disclosure obligations.
Constitutional Due Process
There are over 30,000 cases in the United States that discuss the government's obligation to provide exculpatory information to the defense. Every prosecutor and defense attorney should be familiar with the following cases.
- Brady v. Maryland, 373 U.S. 83 (1963) (Prosecution violates a defendant’s due process rights by failing to turn over potentially exculpatory evidence).
- United States v. Bagley, 473 U.S. 667 (1985) (Brady rule applies to impeachment evidence).
- Silva v. Brown, 416 F.3d 980 (9th Cir. 2005) (Impeachment evidence is especially likely to be "material" under Brady; thus, the government must reveal promises of leniency or immunity for its witnesses).
- Kyles v. Whitley, 514 U.S. 419 (1995) (The prosecutor bears the primary responsibility of identifying and turning over Brady evidence. The prosecutor’s obligation to turn over all exculpatory evidence extends to evidence that is in the possession of the police, including information that the police have not disclosed to the prosecutor. “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence”).
- United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (“The prudent prosecutor will resolve doubtful questions in favor of disclosure.”).
- In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 397 n. 9 (1999) (Even after conviction, the prosecutor is required by the ethics of the office “to inform the appropriate authority of . . . information that casts doubt upon the correctness of the conviction.”).
- State v. Copeland, 89 Wn. App. 492, 497-98, 949 P.2d 458 (1998) (A prosecutor must disclose prior criminal convictions of witnesses intended to be called for trial if that information is in the knowledge, control or possession of any member of the prosecution office, even where the deputy prosecutor on the case is not actually aware of the prior conviction of the witness).
- State v. Garcia, 45 Wn. App. 132, 724 P.2d 412 (1986) (A prosecutor must disclose the substance of an eyewitness’ oral recantation and any prosecutor notes for an in camera review of the conversation even though the prosecutor did not believe the recantation). This rule also applies to non-lawyer support staff at a prosecutor’s office, such as victim/witness advocates and secretaries.
- State v. Blackwell, 120 Wn.2d 822, 828 (1993) (If the defense can first show materiality, the burden shifts to the prosecution to attempt to obtain evidence held in an officer’s file). If the prosecution will not comply with a request for any information in a police officer’s file, a motion can be brought under Blackwell. However, filling public records request is often a quicker solution.
Criminal Discovery Rules
Discovery in Criminal cases is controlled by CrR 4.7 in Superior Court, and CrRLJ 4.7 in District Court. Although these rules differ somewhat, there is not meaningful difference as it relates to Brady obligations.
- CrR 4.7(a)(1): Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney's possession or control no later than the omnibus hearing.
- CrR 4.7(a)(1)(vi): Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.
- CrR 4.7(3): Except as is otherwise provided as to protective orders, the prosecuting attorney shall disclose to defendant's counsel any material or information within the prosecuting attorney's knowledge which tends to negate defendant's guilt as to the offense charged.
- CrR 4.7(4): The prosecuting attorney's obligation under this section is limited to material and information within the knowledge, possession, or control of members of the prosecuting attorney's staff.
- CrR 4.7(d): Upon defendant's request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant. If the prosecuting attorney's efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.
Rules of Professional Conduct
The Rules of Professional Conduct contain two rules exclusively for prosecutors that relate to the prosecutor’s obligations under Brady.
RPC 3.8(d) compels prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
A prosecutor’s obligations under RPC 3.8(d) are very similar to the disclosure obligations imposed by Constitutional Due Process. As such, failure to comply with the Brady obligations can result in negative licensing ramifications for a criminal prosecutor. The more knowing and willful a violation of this rule, the more negative the ramifications have been.
RPC 3.8(g) is a newer rule, coming into effect in December 2011. Under RPC 3.8(g), when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted, defendant is innocent of the offense of which the defendant was convicted the prosecutor shall promptly disclose that evidence to an appropriate court or authority, and if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant unless a court authorizes delay, and make reasonable efforts to inquire into the matter, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter.
Case Studies
Two recent Washington cases show how prosecutors have dealt with their Brady obligations, and how some police officers have greatly resisted prosecutorial efforts to disclose findings of their misconduct.
Lackey v. Lewis County:
The Lewis County Sheriff’s Office conducted an internal investigation on Deputy Lackey. The investigation made findings that Lackey had committed job related acts of dishonesty and other violations.
The Sheriff sent Lackey a letter sustaining the findings and indicating that Lackey was to be separated from employment for the other violations. The letter also stated that the investigative report was being forwarded to the Lewis County Prosecutor for an analysis under Brady and that a determination of lack of veracity would constitute an additional and independent basis for termination.
The Prosecutor responded by letter, writing “the disciplinary file you provided contains findings that Deputy Lackey committed job-related acts of dishonesty or untruthfulness ... I am obligated to provide this information to defendants and defense attorneys in every case in which Deputy Lackey is likely to testify as a witness for the State.”
Lackey was separated from employment but appealed through Civil Service. A settlement was reached between Lackey and the Sheriff’s Office. The parties to the agreement were the Lewis County Sheriff’s Office, the Deputies Guild, and Lackey. The Prosecutor was not a party to the agreement.
The Sheriff’s Office “agreed to remove any reference to findings of dishonesty in the plaintiff's termination letter; however, the findings were to remain in the plaintiff's permanent investigation file.” The agreement also stated that the letter from the Prosecutor would be sealed by the Sheriff.
The settlement agreement further stated that the Brady memo from Mr. Golden to Mr. Walton would remain sealed by the Sheriff unless directed to be disclosed by a court order, public records request, or other applicable and controlling laws.
- NOTE: Police union contracts and settlement agreements cannot prevent the disclosure of Brady material as a defendant’s constitutional right is paramount. An officer’s privacy interest cannot prevent disclosure of disciplinary records as such records are considered to be of legitimate concern to the public. See, e.g. Dawson v. Daly, 120 Wn.2d 782, 795-96, 845 P.2d 995 (1993); Cowles Pub'g Co. v. State Patrol, 44 Wn. App. 882, 724 P.2d 379 (1986), rev'd on other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988).
Lackey then obtained provisional employment in Mason County, pending a background investigation. The Lewis County Prosecutor became aware of this and sent Lackey a letter stating he would be sending his analysis letter to the Mason County Prosecutor, but gave Lackey 10 days to object. The letter was subsequently sent.
Lackey was separated from his new job. He then filed claims against Lewis County and the Lewis County Prosecutor for sharing Brady information, Due Process violation and deprivation of property interest, defamation, invasion of privacy, and an injunction.
All federal claims were dismissed by the federal court.
“The court can find no law prohibiting a prosecutor from sharing potentially exculpatory or impeaching evidence with prosecutors of another jurisdiction. Such a law would be antithetical to a prosecutor's duty of disclosure mandated by Brady v. Maryland. A reasonable prosecutor in Mr. Golden's position could feel obliged to offer such information to a fellow prosecutor to remain in compliance with Brady and its progeny; and a reasonable prosecutor in Mr. Golden's position would not have known that his conduct in releasing the Brady letter would violate any clearly established constitutional right.”
The court also wrote “The plaintiff has failed to identify any law that recognizes a police officer's right to a name-clearing hearing after a Brady determination has been made, or any law prohibiting a prosecutor from transmitting a Brady determination to another jurisdiction.”
Doyle v. Lee, 166 Wn. App. 397 (2012):
Doyle left his employment with the Sierra County Sheriff's Office after a settlement agreement dismissing a disciplinary action in exchange for his resignation. The agreement precluded Doyle from applying for or accepting employment with Sierra County for five years. Before this agreement was reached, Doyle had first been subject to termination, and later was placed on unpaid, one-year probation.
Later in 2007, Doyle became employed by the Quincy Police Department (who presumably did not know about the Sierra County issue when they hired him).
In 2009, Doyle called the police Moses Lake Police Department (MLPD) reporting documents related to his Sierra County employment had been stolen. MLPD recovered and reviewed the documents. Believing the documents showed that an investigation resulted in a finding that Doyle was dishonest, MLPD passed this information to then Grant County Prosecutor Angus Lee. Lee preliminarily determined the dishonesty finding and the supporting information were potential impeachment materials that his office was required to disclose to criminal defendants in compliance with Brady.
Mr. Lee notified Doyle of his determination and invited him to provide any information he wished to assist in making the final determination.
Doyle responded by suing for declaratory relief, and seeking an Ex Parte order to prohibit Mr. Lee from using, or disseminating any of the documents.
The trial court entered a preliminary injunction, but allowed the prosecution to comply with Brady mandate by submitting the materials to the criminal trial courts for in camera review on cases where Doyle was a potential witness. Each criminal trial judge that ruled on the in camera review ordered disclosure of the materials under Brady and Bagley.
Mr. Lee moved for summary judgment to dissolve the preliminary injunction and to dismiss the case. Finding that the Sierra County outcome was adverse to Doyle and that such information would be of public concern, the trial court ordered the immediate termination of the preliminary injunction and granted Mr. Lee's motion for summary dismissal.
In affirming the trial court's summary judgment, the appellate court wrote “a sustained finding of dishonesty existed resulting in adverse consequences to Officer Doyle. Under Brady, a prosecutor is required to disclose exculpatory evidence, including an officer's dishonesty…. Mr. Lee complied with the Brady mandates by giving the documents to numerous affected defense attorneys.”
The court also awarded Mr. Lee tens of thousands in attorneys fees for having to defend against the action.
Model Potential Impeachment Disclosure Policy
In 2013, after the Lackey and Doyle cases, prosecutors in Washington State, through the Washington Association of Prosecuting Attorney’s, published a model policy for the handling of Brady/Doyle material for officers. Although some prosecutor’s offices still use the term “Brady Cop”, many have adopted the model policy and the term "Potential Impeachment Disclosure" (PID) when referring to disclosure obligations involving a police officer.
The model policy was designed to achieve compliance with the above requirements, and create state-wide uniformity in the way potential impeachment of recurring government witness issues are handled. According to the model policy, “All County deputy prosecuting attorneys are required to know and follow this protocol and all relevant law concerning potential impeachment of recurring government witness disclosure obligations.”
Under the model policy, the PID standard is likely to be satisfied by reliable information that an officer was dishonest in connection with the performance of official duties. It is less likely to be satisfied by dishonesty in connection with an officer’s private affairs. Under unusual circumstances, information about private acts might be subject to the PID policy if the acts could be admissible under Evidence Rule 608(b) as evidence of untruthfulness.
Clark County PID:
Below you can download the "Brady Policy" and list maintained by the Clark County Prosecutor's Office and the Vancouver City Attorney's Office.
PID Guidelines
- The PID Standard depends on what a reasonable person could believe, not on what the prosecutor’s office or a law enforcement agency does believe.
- Consequently, disclosure may be required in cases where the prosecutor’s office and/or the law enforcement agency believe that no misconduct occurred, if a reasonable person could draw a different conclusion.
- If the prosecutor’s office concludes that an officer is subject to PID, that conclusion does not necessarily reflect a conclusion that the officer committed misconduct, or that the officer is not credible as a witness.
- PID is about meeting the government’s obligation to disclose. It is NOT about making a determination on admissibility, or on an officer’s credibility, or employability.
- A determination that disclosure is required is not a stipulation by the prosecution as to admissibility. In fact, it is not uncommon for the prosecution to make a disclosure of material to the defense, but then later argue for suppression or exclusion of that material at trial.
- When the determination is questionable, the prosecution should submit the material to the court in camera for a determination on the disclosure obligation . If the defense believes there is material that is not being disclosed pursuant to Brady and its progeny, the defense should move the court for an in camera review of the material it believes exists and is not being disclosed.
- If material is submitted for in camera review, it may or may not be disclosed by the court. As a result, the defense either obtains the requested material, or builds a record for any future appeal regarding what was not disclosed.
The Future of Brady
A review of the case law regarding Brady material reveals that the law is expanding and will continue to expand the scope of discovery beyond simple acts of dishonesty by an officer. Brady disclosure obligations at their heart deal with ANY information that may tend to negate or call into question the testimony of a witness, thereby making the information material for impeachment purposes.
Mental and Physical Health: depression and other mental health disorders are increasingly common across America. Police officers and jail guards are no exception. In fact, it has been reported that jail guards suffer from PTSD at higher rates than combat veterans. The drugs some take to treat these issues may be very relevant to a particular officer’s ability to observe and recall a particular incident. Likewise, if an officer has been diagnosed and in need of medication, the absence of appropriate medication may also be relevant.
Evidence of prejudice towards a protected class: Prejudice and bias against a group of people can be very relevant to impeachment of an officer’s testimony. This kind of information can often be found in comments that officers make publicly on social media.
Performance Reports: Most government witnesses (especially at the State Crime Laboratory) are subject to regular performance testing and evaluations. Adverse or substandard performance reviews or evaluations are potentially very relevant to impeaching the testimony of a government witness.
Substance Abuse: If an officer was on drugs or alcohol, or dealing with a bad hangover, at the time of arrest, this information is very relevant to the officer’s ability to observe and recall an incident many months later at trial. As such, use/abuse of drugs or can be relevant information.
***
Angus Lee is a criminal defense lawyer. He previously served as a deputy prosecutor, a two time elected county prosecutor, and a Special Assistant U.S. Attorney. He has twice been a lecturer on the topic of prosecutor’s disclosure obligations at the Washington Association of Prosecuting Attorneys annual training conference.