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Opinion <em>Brady</em>’s line-drawing problem

Brady is simple enough on the surface, but it quickly gets complicated when it comes to identifying how far a prosecutor must go to seek out impeachment material. Today’s post sets out the complexity of the doctrine and looks at the unintended consequences of the Supreme Court’s expansion of Brady over the years.

Before talking about Brady, it would be useful to say a few words about how impeachment evidence is used. Evidence rules vary significantly from state to state. In addition, trial judges have broad discretion to set limits on what may be used to impeach a witness. Rather than cataloging here the particular admissibility rules of each state, I will use the Federal Rules of Evidence as a general point of reference for the types of state evidentiary rules that would allow misconduct to be used at trial.

Rule 608(a) provides that “[a] witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.” Police misconduct records can help locate witnesses to testify to the officer’s credibility. More significant, though, is Rule 608(b), which allows for cross-examination of a witness about “specific instances of … conduct,” provided the instances are “probative of the character for truthfulness or untruthfulness of … the witness.” Although the internal affairs documents will generally not be allowed into evidence, their accounts of an officer’s dishonesty allow a defense attorney to ask the officer about the misconduct on the stand. If asked about a specific instance of dishonesty, the officer will be forced to (1) admit the misconduct, thus coming off as a liar; (2) deny the misconduct, thus committing perjury; or (3) claim no recollection, thus calling his memory into question. Such cross-examination, based on the personnel-file material, may be one of the few ways a criminal defendant can undermine the credibility of a law enforcement agent.

However, even the most damning internal affairs report is useless if defense counsel never learns about it. That’s where Brady comes in. As noted above, police misconduct evidence can be favorable and material where it undermines an officer’s credibility. This evidence of misconduct should be imputed to the prosecutor, even if he has never looked into the personnel file. That is because the prosecutor has “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police,” and the police officer and police agency know about the misconduct.

But there is some ambiguity about how far that duty to learn extends in this context. For example, an officer may have lied in his divorce proceedings or may have been suspended from school for cheating on a test. This evidence could be favorable and material in the right case, because it speaks to the officer’s character for truthfulness, and it is known to at least one member of the prosecution team, namely the officer. But is it really possible the prosecutor would have a constitutional duty to plumb the officer’s life history to learn of these acts of dishonesty? At the same time, if the prosecutor is not required to learn of anything outside the case, does that mean he has no obligation to learn — and the police have no duty to inform him — that the officer was caught falsifying police reports in another prosecutor’s case?

Somewhere between these extremes of search everything outside the case and search nothing outside the case, a line has to be drawn. Wherever that line is drawn, the evidence of police misconduct in the personnel files would seem to fall on the side of disclosure, given that the disciplinary reports and investigations in these files relate to an officer’s on-the-job conduct and are in the possession of prosecution team members. But the development of the Supreme Court’s Brady doctrine over the years has made this line-drawing exercise unnecessarily difficult, as the paragraphs below discuss.

The root of the doctrinal problem is that, in expanding the Brady doctrine, the Supreme Court was focused on evidence contained within files related to the particular case. The justices were contemplating evidence dug up in the investigation of the defendant’s case, not some unrelated matter. However, there is an entire universe of evidence that could be relevant to an officer’s credibility yet is not tied to the particular case. I call this “unrelated-case material.” Brady’s Blind Spot goes into this issue in greater depth than is possible here. The gist is that the potential for unrelated-case material to be favorable and material grew exponentially as the Supreme Court expanded the scope of Brady.

Initially, Brady encompassed only exculpatory material. There is relatively little chance that exculpatory evidence, as opposed to impeachment evidence, will be lurking in some unrelated case file, so the question of a prosecutor’s duty to learn of unrelated-case material was not something that had to be wrestled with. In Giglio v. United States, the Supreme Court expanded Brady to include impeachment evidence, and this expansion increased the potential for unrelated-case material. For a witness like a police officer, who testifies in many cases, dishonesty issues documented in one case might well be relevant to the witness’s credibility in other cases.

After Giglio, prosecutors thus had a broader duty to learn of impeachment material in other cases than they did when Brady was confined to exculpatory material. In Kyles v. Whitley, the Supreme Court expanded Brady once again, holding that prosecutors are imputed knowledge of anything known by any member of the prosecution team, including the police. That greatly expanded the universe of unrelated-case material that might impeach a witness’s credibility. It was not just the criminal prosecution files that fell within the scope of Brady, but also administrative files, like the police misconduct ones, which may not be connected to any criminal prosecution and which only the police department would have been privy to. Although Supreme Court cases like United States v. Agurs and Kyles v. Whitley involved unrelated-case material — the criminal record of a murder victim and the criminal conduct of a key witness, respectively — the Supreme Court never spilled any ink distinguishing between the duty to learn of related-case material and the more onerous duty to learn of unrelated-case evidence.

Nor did the lower federal courts have a chance to answer the question of how far to extend the prosecutor’s duty to learn of impeachment evidence. Again, Brady’s Blind Spot gives a fuller description of why the lower federal courts did not resolve this question in the personnel-file context. The short answer is that, about the same time that Kyles v. Whitley was decided, the Justice Department enacted a policy requiring federal prosecutors to learn of federal agents’ potential Brady issues. That policy limited the number of federal prosecutions that could raise this personnel-file issue to the circuit courts on direct appeal.

At roughly the same time, the Antiterrorism and Effective Death Penalty Act of 1996 effectively barred federal courts from developing constitutional law in habeas proceedings, limiting the federal courts to applying the direct holdings of existing Supreme Court decisions. This cut off the other main source of cases that could potentially present this issue to the federal courts: federal habeas review of state convictions.

In the absence of federal case law resolving this question, states and localities have stepped in to answer for themselves how Brady’s duty to learn extends to the material in police personnel files. As will be discussed tomorrow, the dearth of federal case law on this issue allowed for a crazy quilt of Brady compliance regimes to emerge.