One constitutional Brady doctrine, four different applications

Brady governs all criminal trials, state and federal, and federal constitutional law trumps all state laws to the contrary. Nonetheless, in some jurisdictions, state laws and local policies have effectively blocked Brady's application to police personnel files in the name of protecting police privacy. Today's post discusses what are, effectively, the four faces of Brady compliance.

1. "No Access" Regimes. In California and other states, police personnel files are made confidential by statute. Even a prosecutor can't look into the files, much less disclose material from them, without first getting a court order.

For example, California's statutory protections for police personnel files require anyone seeking to access the files, even for Brady purposes, to file a motion in the trial court showing good cause for why the court should review the files in chambers. If the judge finds good cause, he will look at the files and decide what to disclose. The glaring problem: Prosecutors are constitutionally required to disclose material from files that state law prevents them from looking into with permission from the court. And to show good cause sufficient to get this permission, the prosecutor must already know something about what is contained in these secret files. It's a Catch-22 nested within another Catch-22.

Nonetheless, in People v. Superior Court (Johnson), the California Supreme Court last year held that the restrictions on prosecutors' access were not inconsistent with Brady. The court relied on the shaky premise that "criminal defendants and the prosecution have equal ability to seek information in confidential personnel records." From this premise, the court concluded that there was no Brady duty to search the personnel files because Brady does not require the prosecutor to learn of, or disclose, something that a reasonably diligent defendant could get on his own.

Strangely, the opinion did not mention that the prosecutor, unlike the defendant, would be imputed knowledge of the personnel files' contents because those contents were known by a member of the prosecution team, namely, the officer. Indeed, the California Supreme Court made only a glancing citation to Kyles v. Whitley, the key U.S. Supreme Court case that articulated this point about imputed knowledge.

For those interested in seeing the head-on conflict between Brady and police privacy laws, the California Supreme Court's opinion and the better-reasoned California Court of Appeal decision it overruled are required reading. The bottom line is that, in these "no access" regimes, state laws prevent prosecutors from carrying out their federal constitutional duty to look in the personnel files for Brady material.

2. "Public Records" Regimes. On the opposite end of the spectrum are states, like Florida, where police misconduct records are available to anyone who makes a public records request. When I was a newspaper reporter in Florida, I routinely read and made copies of internal affairs investigations. All I needed was a public records request and a day or two of patience.

The irony of Brady compliance in these states is that, where the personnel-file information is openly accessible, the prosecutor is not required to learn of or disclose material from the file. That is, again, because of the reasonably diligent defendant doctrine, which removes from Brady any information a reasonably diligent defendant could have obtained on his own. Thus, by making the police misconduct records public, these regimes have taken the files outside the sweep of Brady.

3. "Access and Disclosure" Regimes. In many states, prosecutors have special access to the personnel files that criminal defendants do not, and they thus bear an obligation under Brady to learn of and disclose any favorable, material evidence contained therein. Prosecutors in a number of jurisdictions have established systems to ensure the disclosure occurs. Brady's Blind Spot fleshes out the systems used by prosecutors in Washington, Minnesota, North Carolina and the District. In short, prosecutors review the personnel files for any information that speaks to the credibility of the officers, their history of bias or their use of excessive force.

The prosecutors then assemble so-called "Brady lists" of the problem officers. Whenever these "Brady cops" are slated to testify in a case, the prosecutor will consult her own internal dossier on the officer's credibility problems or else request further information from the police department.

One common variation on this theme is for the prosecutors to give police departments search criteria and instruct the police departments to take the first cut at identifying any officers that might have Brady issues. In this variation, if the information is deemed significant enough to affect the officer's credibility in a material way - and, if the prosecutor nonetheless wants the officer to testify - the prosecutor will provide this information to the defendant. Even if these disclosure systems sometimes break down in practice, prosecutors in these jurisdictions have at least put systems in place that acknowledge Brady's application to police personnel files.

4. "Access but No Disclosure" Regimes. In these jurisdictions, prosecutors have special access to the personnel files that the defendants do not, and thus they have an obligation under Brady to disclose the impeachment material. But the prosecutors nonetheless fail to carry out this duty. In some cases, it's a matter of ignorance. When asked about the police department's Brady policy, the internal affairs commander in one Maryland agency replied: "What's that? … You mean the gun law?"

Other times, prosecutors profess a belief that Brady does not apply to the type of material in police personnel files because Brady would be too burdensome if it did. "To ask prosecutors to be aware of the contents of their personnel files, to be aware of commendations and of demerits contained within those personnel files, is simply asking too much," one Oregon prosecutor said in state legislative hearing in 2013. An official representing Oregon district attorneys added that requiring them to look through the personnel files for Brady material was "a demand that the government pry into everyone's life to see if there is anything there."

Other prosecutors in these "Access but No Disclosure" regimes seem to think of the personnel-file material as a matter of mere discovery, not Brady. It's not that they oppose disclosure from the files; it's just that they don't see the prosecutor as playing any role in the search. Let the defendant search for it if he wants to. This view, however, skips over a key distinction between Brady and discovery. The prosecutor has a constitutional duty to seek out and disclose Brady material, even if the defense attorney does not know or care enough to ask for it.

In the end, it's not just the variation in Brady that is concerning. The most troubling aspect of this variation may well be that the people failing to disclose Brady material think they're acting in good faith. So great is society's solicitude for police privacy that jurisdictions have come to believe such privacy trumps prosecutors' Brady obligations and defendants' Brady rights.