Officers ’ Rights
What is a ‘ Brady cop ?’
The due process rights of law enforcement officers are being trampled by overzealous prosecutors under the guise of professional responsibility
STUART ALTERMAN
In Brady v . Maryland , the U . S . Supreme Court held :
The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment , irrespective of the good faith or bad faith of the prosecution ; Brady v . Maryland , 83 S . Ct . 1194 , 1196-1197 ( 1963 ).
Brady speaks to the issue of due process in the context of the accused in a criminal case . However , public employees , including law enforcement officers , as well as private citizens are also afforded due process protection when “ state action ” is involved .
At its most basic level , the concept of due process requires that an individual be given notice and the opportunity to be heard when the government seeks to limit or curtail a protectable interest . This constitutional guarantee is understood as providing the individual with “ an opportunity to be heard at a meaningful time and in a meaningful manner .”
Whether a procedure complies with due process depends upon the following factors :
[ F ] irst , the private interest that will be affected by the official action ; second , the risk of an erroneous deprivation of such interest through the procedures used , and the probable value , if any , of additional or substitute procedural safeguards ; and finally , the government ’ s interest , including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail .
The Brady case and its holding have evolved over the years . Unfortunately , in the last few years , employers of law enforcement officers , at the insistence of overzealous municipal and state prosecutors , have used purported Brady disclosures as swords against law enforcement officers in the form of discipline without due process . This use of Brady disclosures has resulted in an unnecessary collision between the due process rights of law enforcement officers and a demented perception of the alleged due process rights of accused criminals .
Here is how a typical Brady disclosure issue arises . Despite there being no affirmative finding by a Superior Court judge , municipal court judge , administrative law judge , or even a departmental hearing officer , some prosecutor or assistant prosecutor gets into his or her head that a particular law enforcement
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