Brady, Giglio and You:
How the Duty to Disclose
Exculpatory Information
Impacts Police
Disciplinary Files
By: Scott Sergent
“The defense attorney wants your file.” I cannot imagine hearing anything more distressing. No matter
what your “file” is, or what it contains, no law enforcement officer is comfortable with a defense attor-
ney combing through his or her personnel records. But could that happen?
Brady v. Maryland
In 1963, in Brady v. Maryland, the U.S. Supreme Court expanded on its previous due process cases ad-
dressing exculpatory information to which a criminal defendant is entitled. The Brady court decided that
a defendant’s due process rights were violated when a prosecutor intentionally withheld exculpatory and
material evidence from the defendant. The Supreme Court wrote that withholding exculpatory facts or
information was equivalent to “deliberate deception of court and jury.”
That’s pretty strong language from our nation’s highest court.
Brady involved two co-defendants, both charged with murder during a robbery. Prior to Brady’s trial, the
co-defendant confessed to the actual homicide—information that was clearly helpful to Brady and his
defense team. When Brady’s defense team asked for the co-defendant’s statements, the prosecutor
turned over several statements, but intentionally withheld the confession. Brady was later convicted and
sentenced to death before his attorney discovered the confession. This action, “the suppression by the
prosecution of evidence favorable to an accused upon request,” the Court wrote, “violates due process
where the evidence is material.” As a result of the purposely withheld confession, the Court ordered
Brady’s sentence be vacated and ordered a new sentencing hearing. Now, more than 50 years later,
Brady’s disclosure requirements are well accepted and strictly followed; however, some attorneys like to
quibble about what exactly constitutes a “material” fact.
Giglio v. United States
More recently, in Giglio v. United States, the Supreme Court applied the Brady analysis to information
that might impact the credibility of a prosecution witness. John Giglio was charged with a federal of-
fense related to forging several money orders. In prosecuting Giglio, the U.S. Attorney’s Office relied
heavily on the testimony of a co-conspirator. In fact, outside of the co-conspirator’s testimony, there
was very little evidence linking Giglio to the crime.
Giglio’s case was prosecuted by two Assistant U.S. Attorneys (AUSAs). The first AUSA presented the
case to the grand jury and the second took the case to trial. Unbeknownst to the second AUSA, the first
AUSA offered Giglio’s co-conspirator immunity in exchange for his testimony against Giglio. When Gi-
glio’s attorney asked about an immunity deal for the co-conspirator, the second AUSA denied any deal
had been offered or made. Likewise, during trial, the co-conspirator denied being part of any deal.
After Giglio’s conviction, the co-conspirator’s immunity deal came to light and Giglio’s attorney appealed
his conviction. When the case arrived at the Supreme Court, the justices applied their Brady logic and
decided that the duty to disclose favorable information to the defendant (set forth in Brady) also applied
www.gachiefs.com • Page 24 • 1st Quarter Newsletter