The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Police misconduct is very much in the headlines these days. The public debate on the need for police reform has largely focused on the aggressive policing tactics that have taken many lives. But my guest posts this week focus on another aspect of police misconduct: the damage inflicted on criminal defendants at trial when police misconduct is concealed.
Here's the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer's testimony. The federal constitution, as interpreted by Brady v. Maryland and its progeny, requires prosecutors to disclose to defendants any favorable, material evidence known to the prosecution team, including evidence relating to a witness's credibility. Much impeachment evidence can be found in a police officer's personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.
My guest posts this week look at the conflict between defendants' Brady rights and officers' privacy and employment rights. This conflict is an object lesson in the way the U.S. Supreme Court's constitutional dictates do not apply evenly across the country, regardless of the fact that they are the law of the land. The story of Brady's spotty application to police personnel records also reveals the complex politics within the prosecution team, with prosecutors and police officers finding themselves on opposite sides of this issue.
So, what's in a police personnel file, and why does this material's disclosure or suppression concern federal due process? For problem officers, police personnel files can contain reams of internal affairs investigative reports, disciplinary write-ups and other police department documents demonstrating the officers' dishonesty. In one case, an internal affairs report that was suppressed at trial found that the key police witness's "image of honesty, competency, and overall reliability must be questioned" because of his misconduct.
Records in another case documented a detective's repeated lies to internal affairs investigators and included a psychological assessment that the detective "should not be entrusted with a gun and badge." The file also contained a warning to the police department from the attorney general: "If you had a homicide tonight … I would instruct you that [the detective] not be involved in the case in any capacity." Internal affairs findings from other cases have excoriated officers for making false overtime claims, filing false police reports and stealing from the police department.
Such instance of police misconduct may never come to light in some cases. In the cases where they do surface, it is often not until habeas corpus proceedings, which occur years, and sometimes decades, after the trial. Men and women have been sent to prison and even death row because this critical impeachment evidence was hidden from them at trial.
The concealment of this impeachment material becomes a due process problem because of the Supreme Court decision in Brady v. Maryland and that case's progeny. Under Brady, prosecutors have a constitutional duty to disclose to the defense any favorable, material evidence known to the prosecution team. Favorable means evidence that would help the defense, either because it is exculpatory or because it is impeaching. Material means that the evidence is significant enough to create a "reasonable probability" of a different outcome if it is disclosed. The final element of Brady—known to the prosecution team—means the prosecutor has a duty to disclose information that he does not know about himself but that is known to some member of the prosecution team. As the Supreme Court held in Kyles v. Whitley, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."
The upshot is that prosecutors have a constitutional obligation to learn of and disclose the impeachment material in police personnel files. Where an officer's testimony is significant to the case, this personnel-file material will likely be favorable and material. And knowledge about the contents of the personnel file should be imputed to the prosecutor, even if he did not know about the impeachment evidence himself, because the contents of the personnel file are known to a member of the prosecution team, namely the police officer.
Despite this constitutional requirement, there is wide variation around the country in how Brady is applied. In some jurisdictions, the records of police misconduct are treated so confidentially that even well-meaning prosecutors are prevented from reviewing the files for Brady material unless they first get a court order. Meanwhile, in other jurisdictions, police misconduct records are easily accessible via public records request. In still others, prosecutors have special access to the files that defendants do not have, and prosecutors do (or don't) disclose the impeachment material.
The variation in Brady caused by state laws and local policies is compounded, in some jurisdictions, by the resistance put up by police officers and police unions. Officers fear the career consequences of being labeled "Brady cops," a designation that can prevent them from testifying in future cases and place their jobs in jeopardy.
For many police officers, this is a matter of due process. Officers complain that prosecutors can throw around the "Brady cop" designation based on their own hunches, without relying on competent evidence, and without giving the officer a chance to defend himself from the Brady label. These concerns have led to a fierce division within the prosecution team, one that pits prosecutors against police officers, and police management against the police rank-and-file.
In the end, the tensions surrounding Brady's application to these files come down to a question of whether a defendant's due process rights ought to trump a police officer's privacy rights. In light of the enormous public trust placed in police officers, I don't see how they have any privacy interest in keeping on-the-job misconduct secret. But the powers that be in many jurisdictions have taken the opposite view.
The remainder of this week's posts will unpack the tension between defendants' due process rights and officers privacy rights. The posts will also address the push and pull between prosecutors, who are constitutionally required to disclose such impeachment material, and police officers, who feel that this disclosure threatens their livelihoods. While the focus will be on Brady and police personnel files, the larger story is about the gulf between the Supreme Court's constitutional dictates and the reality of this doctrine on the ground, shot through the kaleidoscope of 50 states and nearly 15,000 law enforcement agencies. Brady's varied application is a reminder of a significant structural impediment to reforming the criminal justice system. There's so much variation at an extremely local level that even one-size-fits-all solutions, like Brady, are far from uniformly applied.