to material information that might impact the reliability of a state’s witness, if the defendant asks for
this information. An immunity deal, like the one offered to Giglio’s co-conspirator, might affect the wit-
ness’ credibility in the eyes of the jury, the Court reasoned. The failure of the second AUSA to disclose
the immunity deal violated Giglio’s due process rights, even though the second attorney knew nothing
of the deal.
Duty to Disclose
“But wait, how does this impact my personnel file?” you’re probably asking. Hopefully there is nothing
in your disciplinary file that could potentially affect your credibility as a witness. However, in nearly
every criminal case, and certainly every case that goes to trial, defense attorneys routinely request any
and all exculpatory information from the prosecuting or district attorney. When a prosecutor receives
that request, even minor disciplinary actions could become accessible to a defense attorney. In fact,
depending on the content of your disciplinary file, the prosecutor may have a constitutional and ethical
duty to disclose it all.
The Supreme Court did not render much guidance about what a prosecutor must provide to a defense
attorney in order to satisfy their Brady and Giglio obligations. We know material and exculpatory evi-
dence must be provided to the defense, and that “evidence affecting credibility” of a witness falls with-
in these bounds. This guidance leaves little doubt that disciplinary action touching on an officer’s eth-
ics, integrity or honesty must be disclosed. Criminal convictions for similar criminal offenses, such as
fraud or those involving moral turpitude, must also be disclosed.
But what else? There is no bright line to define when evidence affects an officer’s credibility; it is un-
clear where this requirement starts and stops. If you’re the only witness to an offense, or the state’s
case relies heavily on your testimony, the Supreme Court has indicated the scope of required disclo-
sure could be broader. As a recent and practical example, the Circuit Attorney for the City of St. Louis
has developed a list of officers whose cases will not be filed unless independent evidence exists to
corroborate the officer’s observations. These officers have something in their disciplinary file that, in
the judgment of the Circuit Attorney, so severely affects their credibility that the officers cannot be re-
lied on.
The best way to avoid this pitfall is to do your job ethically, legally and within policy. It’s much easier
that way and there is no temptation to be dishonest when you have nothing to hide.
The very close second-best way to avoid the prying eyes of a defense attorney or being placed on the
prosecutor’s “no file” list is to tell the truth. All the time. Under all circumstances. Even if it hurts.
Wreck a patrol vehicle? Say so (it happens). Use an unauthorized strike to subdue a restive suspect?
Report it. See a co-worker use excessive force? Tell a supervisor.
Make sure your reports reflect the same dedication to the truth. Our job is to report the facts and take
appropriate enforcement action. It is not our job to ensure the case is filed by only reporting the “good
facts” that support our case or slanting the truth to support our actions. In fact, doing so will likely
lead you to some extreme unpleasantness on the witness stand at the hands of the defense attorney,
followed promptly by an internal affairs investigation, which could then be discovered by an attorney in
a subsequent case—and the cycle repeats itself.
It goes without saying that law enforcement professionals should always be honest, tell the truth, and
report the same. But remember what you say or do in one incident, and how you write your reports,
could impact your disciplinary file, which could affect your credibility on the stand or potentially ex-
clude your cases from prosecution.
www.gachiefs.com • Page 25 • 1st Quarter Newsletter