Beware of Brady when you write that arrest report
Just to make sure that your life as a police officer cannot get less complicated, a lot of disciplinary attention lately has been paid to what is not in an arrest report as well as what is. This reverberates around the understanding and misunderstanding of the so-called Brady Rule. The rule comes from a 1963 U.S. Supreme Court case Brady vs. Maryland, 373 US 83.
Basically, Brady stands for the concept that prosecutors have an affirmative duty to cough up all exculpatory evidence to the accused in a criminal case. Exculpatory evidence is any evidence in possession of the government that could be favorable to the accused. Like what? Well, evidence that might relevant to the issue of guilt and also evidence that might be relevant to the issue of appropriate punishment.
One of the things that Brady mandates disclosure on is whether or not a witness against the defendant has been offered the prospect of their own potentially lighter sentence or promise not to prosecute or arrest them. Under Brady theory, this gives the witness the motive to lie so the defense attorney can use this to try to impeach the witness. So, if officers have knowledge of this and do not disclose it in their reports, it will be argued that this is a Brady violation.
Before you start to think that this is the prosecutor’s problem, not yours, consider the good old 9th Circuit Federal Court — whose jurisdiction includes Los Angeles — and who told us in U.S. vs. Blanco that “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.”
The fact that a bad guy gets cut loose is only part of the problem. The same 9th Circuit Federal Court also attached individual civil liability to officers in the case of Tennison vs. City and County of San Diego. The facts of the case are complicated, but it surrounded a murder investigation where gang members chased down a victim in a vehicle and beat him. One of the gang members then shot and killed the victim. The San Diego detectives put together this complicated case and arrested and prosecuted Tennison for the murder.
Later, other gang detectives arrested another one of the gang members who confessed to the murder and a witness changed her story and then changed it back again. The gang detectives said that they gave the confession tape to the homicide detectives, but it didn’t show up in the D.A.’s materials shared in discovery with the criminal defense attorney. The notes regarding the witness’s change of story were given to the D.A., but the court characterized them as “buried” in other discovery material.
The gist of the problem is that the court blamed the D.A. for failure to disclose material discovery and, guess what the D.A.’s defense was? “The homicide cops never gave it to me!” To which the homicide cops replied, “The gang cops never gave it to me!” If this were an LAPD case, eventually blame would have been passed down until some P-2 would be swinging from a Board of Rights hanging tree. It wasn’t, but what eventually did happen was that the 9th Circuit decided that civil liability was going to apply to the police department because it was not the prosecutor’s duty alone to disclose exculpatory evidence — it was also the police officers. To sue officers, it was not necessary for the plaintiff to show that the officers engaged in bad faith; the standard was the much easier to prove standard of deliberate indifference or reckless disregard for the truth.
By the way, the sergeant goes down with you. The court said: “[S]upervisors may be liable for their subordinates’ violation of others’ constitutional rights when they ‘know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.” So sergeants beware. Keeping your den out of trouble also keeps you out of trouble.
Other cases have followed the reasoning in this case. For instance, a federal case in Illinois resulted in personal punitive damages against a detective. A gang member witness later accused the detective of coercing him into picking the defendant out of a line up. The result was a $15,000 punitive damage award personally against the detective, not to mention $21 million from the Chicago Police Department.
So the message is that the D.A. has a strong motive for pointing in your direction when the criminal defendant’s attorney starts making accusations of undisclosed evidence. You know what runs downhill. Your best protection is your report. Make it as complete and accurate as possible. You may have to defend every word that is in it, and every word that isn’t, too.
Be legally careful out there.
