The Supreme Court’s [Brady v. Maryland] doctrine requires prosecutors to disclose favorable, material evidence to the defense, but in some jurisdictions, even well-meaning prosecutors cannot carry out this obligation when it comes to one critical area of evidence: police personnel files. These files contain valuable evidence of police misconduct that can be used to attack an officer’s credibility on the witness stand and can make the difference between acquittal and conviction.But around the country, state statutes and local policies prevent prosecutors from accessing these files, much less disclosing the material they contain. And even where prosecutors can access the misconduct in these files, their ability to disclose this information, as required by the Constitution, is constrained by the efforts of police officers and unions who have used litigation, legislation, and in-formal political pressure to prevent Brady’s application to these files. Suppression of this misconduct evidence can cost defendants their lives, but disclosure can also be costly. It can cost officers their livelihoods.Using interviews with prosecutors, police officials, and defense attorneys around the country, as well as unpublished and published sources, this Article provides the first account of the wide disparities in Brady’s application to police personnel files. It argues that critical impeachment evidence is routinely and systematically suppressed as a result of state laws and local policies that limit access to the personnel files and as a result of the conflict within the prosecution team over Brady’s application to these files. Further, the Article challenges Brady’s assumption that prosecutors and police officers form a cohesive “prosecution team,” and that, in the words of the Supreme Court, “the prosecutor has the means to discharge the government’s Brady responsibility if he will” by putting in place “procedures and regulations” to bring forth information known only to the police.Finally, the Article contends that privacy protections for police misconduct are incompatible with core aspects of the Brady doctrine and that systems that attempt to balance Brady against police privacy wind up sacrificing the former to the latter. As both a doctrinal and a normative matter, police misconduct should receive no protections from Brady’s search and disclosure obligation.
Later this month, Heather Mac Donald of the Manhattan Institute will be blogging about her new book, “The War on Cops: How the New Attack on Law and Order Makes Everyone Less Safe“; I’ll post more details about that book before she starts blogging. People who follow the U.S. Court of Appeals for the 9th Circuit, by the way, might be interested in knowing that Abel clerked for Judge Alex Kozinski (for whom I had also clerked), while Mac Donald clerked for Kozinski’s good friend and frequent adversary, Judge Stephen Reinhardt.