By Julie Risher, Office of the Public Safety Attorney, Winston-Salem, North Carolina, Police Department
n May 13, 2008, the U.S. Supreme Court’s opinion in Brady v. Maryland turned 45 years old. In those intervening years, the form and extent of law enforcement records have changed dramatically. As most agencies are trying to stretch fewer resources to provide more services, a challenge facing agencies today is how to ensure continued compliance with Brady in the quickly changing technological environment of the 21st century. Two fair questions for law enforcement managers are as follows: do they know who knows where the records are held, and do officers who communicate with prosecutors know where the records are held?
Brady and Criminal Discovery Statutes
A brief review of the case law may be helpful to chiefs and other managers evaluating and, if necessary, improving compliance with Brady. After Brady’s trial and conviction for murder, Brady discovered that another individual involved in the crime had admitted to committing the actual homicide to investigators. However, the state did not share this statement with Brady’s counsel, even though Brady’s counsel had asked to review statements made by the accomplice. At trial, Brady had admitted participating in the crime, but he claimed that his accomplice actually killed the victim. Consequently, the undisclosed statement would have corroborated Brady’s account.
Brady and its progeny clearly establish that the defendant has a due-process right to material, exculpatory information, regardless of whether the material applies to guilt or punishment. Failing to disclose this evidence violates due process; good faith is irrelevant. Furthermore, information known to the involved law enforcement agency that is not shared with the prosecution is imputed to the prosecution. Hence, there remains a duty to disclose.
In addition to the constitutional requirements of Brady, many states have expansive discovery laws applicable to felony and/or misdemeanor trials.1 For example, many discovery laws require the production of all field notes, documents, pictures, and reports in any media to the prosecution, 2 and some prosecutors employ an “open file” approach to discovery, under which the defendant’s counsel may examine all components of the state’s file.
Civil Liability Exposure
For both individual officers and agencies, a failure to comply with Brady may have ramifications above and beyond the criminal appeals context. The defendant’s right to exculpatory information is a clearly established constitutional right. Consequently, a plaintiff may bring a Section 1983 claim against an officer.3 Law enforcement officers do not incur liability for failing to preserve potentially useful evidence unless the officers act in bad faith; whether officers were aware of the evidence’s exculpatory value at the time of destruction is critical.4
Plaintiffs may allege at least two theories of agency liability in the Brady context. First, an agency’s systemic failure to comply with the requirement to furnish exculpatory evidence would constitute a pattern or practice of violating a defendant’s constitutional right to due process. Consequently, a plaintiff may successfully launch a Section 1983 claim against an individual officer upon showing a case-specific failure to disclose and a Section 1983 Monell (pattern or practice) claim against an agency upon showing a systemic failure to comply with Brady.5 Second, an agency may face liability if it fails to train officers regarding Brady and its disclosure requirements.6
Strategies to Ensure Compliance
As the number of cases an agency handles and/or as the number of personnel involved in complex cases increases, the challenge to develop policies that ensure compliance with Brady becomes more difficult.
Generally, law enforcement agencies seem to be fairly adept at complying with Brady visà-vis routine, fairly straightforward information repositories. For example, agencies routinely produce all reports compiled in connection with a particular case investigation for the prosecution. In addition, crime scene photographers typically maintain a log of all photos taken, and all photos are furnished to the district attorney (either in printed form or on CD-ROM or other media).
There are several steps a prudent law enforcement manager may take to ensure compliance. The first step is to conduct an agency audit to determine where information may be located. This audit will be less cumbersome and more useful to policy developers if the audit focuses not on a particular case or type of case (such as homicides) but on the agency’s divisions and their functions. In other words, the audit should consider what types of records each division produces. If the agency operates an emergency dispatch center, this division will likely have tapes, computer-assisted dispatch records, and digital recordings of all air traffic. Such records may or may not contain exculpatory evidence in a particular case, but they might be subject to discovery under the state discovery laws.
As an agency deploys new technology, it should analyze whether exculpatory material can find its way into the new system. For example, when agencies install video cameras in vehicles, an additional record that may contain exculpatory information is created. Likewise, as mobile data terminals or computers are added to patrol vehicles, the transmissions among units may contain exculpatory information and/or information subject to discovery. Capturing this information without overburdening the agency’s resources is a key issue.
A central linking system to manage all files is imperative. Midsized to large agencies simply cannot afford not to have such a system. However, managers should use the audit described in this article to ensure that all records are linked in the system; a system is only as good as the data entered into it.
An essential component of ensuring that agencies comply with Brady is education. Management should ensure that all officers are aware of the Brady decision and its components and understand the implications of failure to comply.7
A successful education program will also cover the consequences of developing “tunnel vision” during criminal investigations.8 Although an extensive discussion of tunnel vision is beyond the scope of this column, supervisors and officers alike should be aware that this phenomenon might lead investigators to discard information that does not support a hypothesis and to focus on information that does. It is precisely the information that does not support a hypothesis that may prove to be exculpatory (or, at least, that a defense attorney may convincingly argue is exculpatory). Consequently, as agencies work to improve their officers’ understanding of both Brady and the importance of compliance, helping officers understand their vulnerability to tunnel vision is key. At least in more serious cases such as rapes, kidnappings, robberies, and homicides, classifying anything as “irrelevant” early in the investigation is fraught with hazards. If evidence is discarded early in the investigation because it is of “no investigative value,” to establish later that it was in fact of no investigative value is to embark on the daunting task of proving a negative.
Another strategy to ensure compliance with Brady is effective policy development and implementation. After an audit, an agency may decide to implement systems with checks to ensure compliance. Supervisors must monitor their officers’ adherence to such policies, and an effective policy will include guidance on how to do so. Reviewing case materials before sending them to the prosecutor is essential. In addition, an effective policy includes a checklist (prepared from information compiled during the audit) to guide officers in locating information held by the agency on a particular case.
Lastly, obtaining a signed acknowledgment from prosecutors for information furnished to them is prudent because over time, as memories fade, discrepancies may arise regarding which documents were disclosed. Of course, the agency should also retain a copy of the evidence produced.
Continued compliance with Brady requires a concerted effort. Helping officers understand what is encompassed and where such information may be located is key to compliance. An effective policy, successfully implemented, helps protect agencies and their officers from liability in this area. ?
1Some states have been slow to revamp discovery laws to comply with Brady; the Brady obligation to disclose continues regardless of the status of state law.
2North Carolina is one such state.
3See, for example, Brown v. Miller, 519 F.3d 231 (2008); and White v. McKinley, 519 F.3d 806 (2008).
4Arizona v. Youngblood, 488 U.S. 51 (1988).
5Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 (1978).
6Gregory v. City of Louisville, 444 F.3d 725 (2006) (holding that genuine issues of material fact existed as to whether the city failed to train officers regarding exculpatory materials).
8For a lengthy discussion of the effect of tunnel vision in criminal cases, see Keith A. Findley and Michael S. Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases,” Wisconsin Law Review 2006, no. 2 (2006): 291–397, http://hosted.law.wisc.edu/lawreview/issues/2006-2/findleyscott.pdf (accessed April 30, 2008).