Truthfulness and the Brady Decision

1. Truthfulness and theBrady Decision 2017 In-Service Training

2. Course Objectives • Understand what the Brady decision is and who it applies to • Identify landmark case law and definitions regarding the Brady Decision • Review applicable Department Policies, Directives and N.A.C. • Learn the process of Brady Requests • Discuss the consequences of violating Brady principles

3. Definitions

4. Dishonesty An intentional deceptive act, behavior or statement, either verbally or in writing; the disposition to deceive, the intentional misleading of another based on fact or what one believes to be true, including making material omissions or lack of candor.

5. Material Evidence Evidence is material only if there is a reasonable probability that the result of the trial would have been different if the suppressed evidence had been disclosed to the defense.

6. Bias A preference or an inclination that inhibits impartial judgment.

7. Public Official Someone who holds an office in an organization or government and participates in the exercise of authority (either his own or that of his superior and/or employer, public or legally private).

8. Exculpatory Evidence Evidence in the government’s possession that is favorable to the defendant and that is material to the issue of guilt or punishment, including evidence that may impact the credibility of a witness.

9. Impeachment Material Information that may call into question the veracity of a witness.

10. Sustained Finding A conclusion or finding during an administrative investigation where the investigation determined the employee committed all or part of the alleged act of misconduct.

11. Duty to Disclose BradyMaterial • Requires an agency to notify the prosecutor of any potential exculpatory information, without a request being made. • 14th Amendment of the United States Constitution (Due Process) -…..”nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

12. Court Cases

13. Four Landmark Court Cases • Brady • The government has a duty to disclose favorable material evidence to the defense, which could tend to change the outcome of the trial. • Giglio • Expands Brady and requires prosecutors to provide information to the defense which could impeach a witness. • Henthorn • Expands Brady and Giglio and requires the government upon request to examine the personnel files of testifying law enforcement officers for Brady material • Pitchess • Expands discovery to look for evidence of police misconduct in officer ‘s personnel files, within the last 5 years, related to the charge at hand.

14. BradyDecision

15. What is the Brady Decision? • Bradyv. Maryland, 373 U.S. 83 (1963), was a United States Supreme Court case in which the prosecution withheld exculpatory evidence from the criminal defense. The defendant challenged his conviction, arguing his Due Process rights had been violated because the prosecution withheld exculpatory evidence.

16. What is the Brady Decision? • The prosecutor is obligated to disclose all substantial material evidence favorable to the defendant voluntarily, whether or not the defendant makes a request for discovery. • Failure to comply with rules under Brady may result in a “Brady Violation,” which will likely lead to a reversal of a conviction.

17. What is the Brady Decision? • Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying or omitting information in an official capacity. • Brady evidence also includes material relative to the credibility of a civilian witness, such as evidence of false statements by the witness or evidence that a witness was paid to act as an informant. • Police officers who have been dishonest are sometimes referred to as "Brady cops."

18. What is not Brady Material? • Rumors and speculation are not evidence that must be revealed. • Inculpatory evidence- evidence against a defendant or evidence tending to convict. • Neutral evidence- neither convicts nor exonerates the defendant. • Immaterial evidence- evidence not reasonably probable to produce a different result.

19. Giglio Decision

20. Giglio Case • Giglio vs. United States - 405 U.S. 150 (1972)- the Giglio case expanded the Brady decision to require prosecutors to provide information to the defense counsel which could impeach a witness. • This includes information about the credibility and veracity of the testimony. • This also includes a sustained finding for falsifying reports or other conduct which could impact their truthfulness, not just dishonesty.

21. Henthorn Case

22. Henthorn Case • United States vs. Henthorn – 931 F.2d 29, 31 (9th Cir. 1991)- the Court held that the government has a duty to examine, upon request, the personnel files of testifying law enforcement officers for all information, favorable to the defense, in attempting to impeach the witness (Brady material).

23. Pitchess Motion

24. Pitchess v. Superior Court (1974) 11 Cal.3d 531 (9th Cir. 1991) • Pitchess Motion - a request made by the defense in a criminal case for access to the arresting officer’s personnel information, to look for prior allegations of police misconduct • 2 Step Process • Must balance the rights of the defendant against the privacy of the officer • Reveals only the name, address and file number of any prior complainants/witnesses, and the dates of the incidents in questions per City of Santa Cruz, supra, 49 Cal.3d

25. Pitchess Continued • Pitchess motions for discovery are granted, if,: • The arresting officer’s personnel file contains information that might bear on the defendant’s claim that the officer had engaged in misconduct. • As a matter of materiality, the defendant should have access to that information, and he could not “readily obtain the information through his own efforts” • However, • This is not a “blanket fishing expedition”. It is to look for evidence of habitual or customary behavior (s). • Prior complaints for unlawful arrest/excessive use of force • Misconduct involving the catchall “Moral Turpitude” • False reports/testimony • Reputation for untruthfulness • Bias toward the defendant

26. Pitchess Continued • Court Exclusions • Complaints concerning conduct occurring more than 5 years before the event, which is the subject of the litigation. • The conclusions of any officer investigating a complaint • Facts sought to be disclosed which are so remote as to make disclosure of little or no practical benefit.

27. Pitchess continued • How does Pitchess relate to Brady? • Attorneys utilize Brady as the “Catch-all” entitling them to any discovery they want, including officer personnel records. • Brady materiality is a higher standard to meet. • Under Brady, evidence must be disclosed if it is material to the fairness of the trial; • Under Pitchess, the defendant only needs to show the information is material to the subject matter involved in the pending litigation.

28. Pitchess continued • Federal Cases • The state law privileges and protections afforded by NRS or NAC do not apply in federal cases • In the Federal 9th Circuit, it is the prosecutor’s duty to determine whether there is material evidence contained in the officer’s confidential personnel files.

29. Additional Case Law • People v. Mooc – (2202) 27 Cal.4th 101 • The trial court failed to make a record of the evidence it considered on defendant’s Pitchess motion. Appellate Court requested the entire personnel file. Supreme Court reversed Appellate Court decision. Irrelevant personnel documents are removed by the custodian of records, before the in-chambers review. • Santa Cruz v. Municipal Court – (1989) 49 Cal.3rd • Determine whether a showing of “good cause” for discovery of peace officer personnel records requires an affidavit based on the affiant’s personal knowledge. Affidavit in support of Pitchess motion may be based on reasonable inference from the facts of the pending litigation, it does not require personal knowledge of the material facts.

30. Additional Case Law(Continued) • Brandon • City of Los Angeles v. Superior Court, 29 Cal4th 1 (2002), was a United Sates Supreme Court case which expanded the discovery timeframe for Brady materials beyond the 5 year benchmark, not Pitchess information. • Relates only to impeachment materials, because impeachment information affects the fairness of a trial.

31. Nevada Department of Corrections

32. What does all this mean? • How does this affect the NDOC?

33. Truth or Consequences • Defense attorneys and prosecutors are using information about officers who have integrity and ethical issues to create databases, also referred to as a Brady Indexes. • Having a sustained allegation involving untruthfulness or falsification can effectively destroy an employee’s career since he/she will forever be an impeachable witness. • NDOC has zero tolerance for dishonesty.

34. NAC/Policies • NAC 284.650 Causes for Disciplinary Action • (10) Dishonesty • (17) Falsification of Records • AR-339 – Empolyee Code of Conduct, Ethics… • 339.07.8 Dishonesty (Class 2-5) • 330.07.9 False and/or Misleading Statements (Class 5) NDOC Code of Ethics- 1- Employees shall maintain high standard of honesty, integrity, and impartiality, free from any personal considerations, favoritism or partisan demands

35. Brady Request Process • The NDOC policy is currently a draft; however, we are constantly getting requests for this information. • The Inspector General is responsible for processing these request • It currently involves a review of NOTIS, Personnel File, Training File, etc. • Any charges that have been determined to be unfounded or the staff member is exonerated from is not included. • A Judge then reviews the information to see if it should be included

36. Mass. officers caught lying on duty will be fired! Chief: No tolerance for lying at Tulsa Police Department Falsified Reports Put Sacramento Officer Behind Bars News Articles Firing of SPD Officer for Dishonesty is Upheld Dishonesty by Officer Requires Termination Goodyear fired police officer for lying after gun inspection

37. Article- “Dishonesty by Officers Requires Termination” “One of the most important police functions is to create and maintain a feeling of security in communities. To that end, it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials… A police officer who uses his position of authority to make false arrests and to file false charges, and then shrouds his own misconduct in an extended web of lies and perjured testimony, corrodes the public’s confidence in its police force. There is no dearth of positive law expressing the Legislature’s strong instruction that such individuals not be entrusted with the formidable authority of police officers.”

38. Article- “Dishonesty by Officers Requires Termination” “The public policy against requiring the reinstatement of police officers who have committed felonious misconduct [without a conviction] stems from the necessity that the criminal justice system appear legitimate to the people it serves. People will not trust the police — on the street or in court — unless they are confident that police officers are genuine in their determination to uphold the law. As the city reminds us,police legitimacy would be damaged severely by reports that the city continued to employ a police officer who had illegally abused his power and repeatedly lied about it under oath.

39. Article- “Chief: No Tolerance for lying at Tulsa Police Department” ……any officer who is found to be lying or dishonest on affidavits, sworn testimony, Internal Affairs interviews or police reports will now face a “presumptive disciplinary action of termination, consistent with just cause principles.” “It’s hard to understand how things got to the point where they didn’t fire an officer who lied…” “You have to get rid of officers who lie. The citizens and the jury have got to know that when they hear a policeman testify, that he’s telling the truth.”

40. Article- “Goodyear fired police officer for lying after gun inspection” • A Goodyear police officer was fired in December after he lied about why his gun wasn't clean during a random weapons inspection. • It wasn't what he did, it was his lying to cover it up. • *To reiterate – if you lie about the small things, what else will you lie about??? • A loss of credibility is not based on the size or type of the lie!

41. Article- “Dishonesty in the Workplace” • Dishonesty in the workplace takes two main forms – lying and stealing, and both are more common than many of us would like to think. • It’s easy to say, “Everyone else is doing it, so I‘ll do it, too.” It’s much harder to take an ethical stand and insist on honesty.

42. Summary The best way to avoid being labeled as a “Brady Cop” is prevention. The bottom line – Brady material is not left to our discretion. It is mandated Federally and then left to the Courts’ interpretation

43. Quotes • If you tell the truth you don’t have to remember anything. ~ Mark Twain • Honesty is the first chapter of the book of wisdom. ~ Thomas Jefferson • Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened. ~ Winston Churchill • Whoever is careless with the truth in small matters cannot be trusted with important matters. ~ Albert Einstein

44. THE END (_________)