The NJ Police Chief Magazine Volume 26, Number 6 | Page 17

The New Jersey Police Chief Magazine | February 2020
What does Attorney General Directive 2019-6 (Brady/Giglio Disclosures)
Mean to a Chief?
Chief Glenn Miller (Ret.)
On December 4, 2019, NJ Attorney General Gurbir Grewal issued Directive #2019-6 that requires each County Prosecutor to
establish guidelines for the collection of “Brady/Giglio” related information from law enforcement agencies under their supervision.
These county guidelines are to be in effect by March 1, 2020. Since the Attorney General did not establish a “state-wide”
procedure in this Directive and left each county to establish its own policy, it is incumbent upon the Chief to ensure he/she has a
good working knowledge of what their respective County Prosecutors’ Office will require from them.
Since I am not an attorney, nothing in this article should be considered legal advice. Nor am I a “Brady” expert. Prosecutors
make Brady/Giglio disclosure determinations. The purpose of this article is to make Chiefs aware of this developing procedure and
prepare their agency for possible operational issues that may result as Brady disclosure policies are developed.
What is Brady/Giglio information? Simply stated, it is any information that may provide evidence favorable to an accused or any
information regarding the credibility of a prosecution witness, either civilian or law enforcement. To be clear, it is the “Prosecutor”
of a case that makes the determination whether information is Brady/Giglio material and if that information should be disclosed to
the defense or to a Judge. The Chief of Police does not make that determination.
What the Chief of Police or his/her designee will be responsible for is ensuring the Prosecutor has all potential Brady/Giglio
information. Exactly how each County Prosecutor’s Office will go about obtaining that information from agencies in their
jurisdiction will be determined by each county. When the Attorney General issued his initial “Brady/Giglio” Directive, it was only
applicable to State Law Enforcement Agencies and not to county or local police. I mention this initial Directive because in that
Directive there was a requirement that any “investigative employee” who may be called to testify in a case needed to complete a
“candid conversation” questionnaire that would be forwarded to the respective Prosecutor. There were eight (8) questions on that
questionnaire and an affirmative response to any of those questions would require additional inquiry by the Prosecutor. As stated
previously, there is no requirement in the Directive #2019-6 that a County Prosecutor use this questionnaire form (although I
assume many will use it as a guideline), but there is a requirement that a “candid conversation” occur between the “Prosecutor”
and the “investigative employee”.
An important point to note is that according to the Directive, an investigative employee “refers to an individual who is a sworn law
enforcement officer, analyst, civil investigator, or civilian employee working for a law enforcement agency or entity.” For example,
this may include communications operators, civilian clerks, intelligence analysts, first aid personnel (if employed by the law
enforcement agency) as well as other non-law enforcement personnel in your agency who may have to testify in a prosecution.
Although that “candid conversation” is the responsibility of the “investigative employee” to complete, many employees will not
have access to the information they may need to have that candid conversation with the Prosecutor. That information may be
secured in Internal Affairs (IA) records that the employee cannot access. Hence it becomes the responsibility of the Chief of Police
or his/her designee to review their IA files and, working with the County Prosecutor, determine which employee(s) may have to
respond affirmatively to any of the “candid conversation” questions. As a suggestion, the Chief of Police should consider
appointing a “Brady/Giglio Liaison” in their agency (I assume many county policies will require it) to work with the County
Prosecutor on this issue. That “Liaison” would have to have access to IA files which is an important consideration when you decide
who to put into that position.
The AG Directive discourages County Prosecutors and agencies from establishing a “do not call” list of Brady/Giglio “investigative
employees,” but the reality is that if you have an officer or other employee who has a sustained finding of being “untruthful or has
demonstrated a lack of candor” that officer/employee will always be subject to Brady/Giglio disclosure to the “Prosecutor”. The AG
Directive describes a “Sustained” finding as: “… any finding where a preponderance of the evidence shows an officer violated any
law, regulation, directive, guideline policy or procedure issued by the Attorney General or County Prosecutor; agency protocol;
standard operating procedure, rule or training, following the last supervisory review of the incident(s) during the internal affairs
process or a ruling by a hearing office, arbitrator, Administrative Law Judge, or the Superior Court.” So, as an example, 5 years
ago, Officer Doe took a sick day and got caught playing in a golf tournament while on sick leave. Officer Doe was investigated by
IA and there was a sustained finding that he lied about the sick day. Officer Doe did not dispute the finding and took his penalty.
Officer Doe’s sustained finding in this case would have to be reported to the “Prosecutor” during the “candid conversation”. So, as
a Chief, this has some serious implications regarding your personnel and operational capacity. According to an article written by
Val Van Brocklin, (Police One Magazine, 2/25/19), “For officers, being placed on a Brady list can be career damaging or career
ending. Beyond the stigma and damage to their reputation, it can limit their assignments, advancement, other job prospects and
possibly result in termination.” I should note the AG’s Directive provides that the affected investigative employee “may seek
review of that determination [Brady/Giglio disclosure] from the County Prosecutor or their designee, or from the Office of Attorney
General.” It remains to be seen how that review procedure will be established. Also relevant to an agency is that there is no
specified period of time in the Directive that a “sustained” finding would be removed from “Brady/Giglio Disclosure”.
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