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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26 NEW JERSEY COPS ■ FEBRUARY 2018 salterman @ alterman-law. com www. altermanandassociates. com www. NJPoliceAttorney. com www. NJCorrectionsAttorney. com
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