The discovery process and personnel file information.

Law enforcement agencies go to great lengths to ensure that they hire individuals of good character and with backgrounds containing no, or minimal, negative information. In this regard, police employers are no different from other employers: they hope to hire people who will present the fewest personnel issues with which to deal. However, law enforcement employers have another important reason to screen potential hires, and to ensure that their employees conduct themselves in a manner consistent with their positions of trust. A single lie can taint an officer's credibility forever and render the officer virtually useless as a courtroom witness. An example is the recent release of several convicted defendants in a sweeping drug investigation in Tulia, Texas. Texas Judge Ron Chapman concluded that the investigator involved in the case had "falsified reports, misrepresented the nature and extent of his investigative work, and misidentified various defendants during his investigation." (1) As a result, all 38 convictions in the case likely will be vacated. It is hard to imagine the officer involved ever testifying as a prosecution witness again after this finding.

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The reason officers with credibility problems lose their viability as witnesses is based on the constitutional principle that every criminal defendant in this country is entitled to a fair trial. (2) The notion of due process, or fundamental fairness, is a basic right guaranteed by the Fifth and Fourteenth Amendments of the Constitution. (3) This article examines how the due process clause impacts the judicial discovery process and adversely affects police officers with credibility problems.

The Discovery Process in General

The goal of the American criminal justice system is to allow the truth to prevail. One way that courts endeavor to find the truth is through pretrial discovery. During discovery, the prosecution and defense disclose to each other certain evidence they intend to use at trial. With such disclosure, the parties can prepare in advance to test that evidence through cross-examination or expert testimony, ensuring that the judge or jury hears all sides of the case before they decide guilt or innocence. Avoiding trial by surprise is a surer route to the truth.

Although "there is no general constitutional right to discovery in a criminal case," (4) criminal procedure rules dictate the type of information that must be shared by the adversaries in any criminal proceeding. For example, Rule 16 of the Federal Rules of Criminal Procedure outlines what material the government shall provide to the defense and, likewise, what material the defense shall provide to the government. (5) However, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence (6) are silent regarding information relating to the credibility of witnesses, including law enforcement witnesses. This is where the notion of "fundamental fairness," or due process, (7) comes into play.

From Napue to Brady

In 1959, the U.S. Supreme Court decided the case of Napue v. Illinois. (8) In the case, a witness falsely testified at trial that he had received no consideration in return for his testimony. In fact, he had received consideration from the state, but the prosecutor did nothing at trial to correct the falsehood. Napue was convicted of murder, but appealed his conviction when he discovered the false testimony. Not surprisingly, the Supreme Court decided that the government's use false evidence at trial of violated the due process clause of the Fourteenth Amendment. It did not matter to the Court that the falsehood related only to the credibility of the government's witness. The Court emphasized that the "truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. (9) This recognition of the importance of witness credibility set the stage for a series of Supreme Court decisions regarding the government's obligations concerning witness credibility during discovery.

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In 1963, the U.S. Supreme Court decided that constitutional due process guarantees the accused the right to discover exculpatory evidence in the possession of the government. Exculpatory evidence is any evidence that is favorable to the accused and material to either guilt or punishment. In Brady v. Maryland, (10) John Brady was convicted of first-degree murder and sentenced to death. Brady testified at his trial about his participation in the crime, but stated that his companion was the actual murderer. Before trial, Brady requested statements provided to the government by the companion. The government delivered some statements, but failed to provide the statement in which the second individual admitted actually killing the victim.

Brady learned of the existence of this statement after he was convicted and sentenced to death. The Supreme Court decided that Brady's conviction should stand, but that he was entitled to present his accomplice's statement in an effort to avoid the death sentence. The court found that "suppression [of evidence] by the prosecution ... violates due process where the evidence is material either to guilt or to punishment .... " (11) The well-known obligation of the government to provide the defense with exculpatory evidence, or "Brady material," came from this landmark decision.

Extending Brady to Impeachment Material: Giglio and Henthorn

As noted previously, the Supreme Court recognized in the Napue case that guilt or innocence of an accused may turn on the credibility of witnesses at their trial. Given the importance of witness credibility, it was a short step for the Supreme Court to take to decide that due process requires the government to disclose to a defendant information regarding witness credibility prior to trial. The Court took that short step in Giglio v. United States. (12)

In Giglio, the assistant U.S. attorney (AUSA) who presented the case to the grand jury made a promise of leniency to a key witness. The prosecuting AUSA was unaware of the promise. The witness testified at trial that he had not received anything (including the promise of leniency) for his testimony. After being convicted, Giglio appealed, arguing that the promise to the witness should have been revealed to the jury for their consideration of his credibility. Based on its decision in Napue, (13) the Supreme Court found that the information regarding the earlier promise should have been revealed to the defense. (14)

The Brady-Giglio requirement that the government disclose to the defense any information regarding the credibility of witnesses obviously extends to police officers called by the government to testify. What type of information contained in personnel files of law enforcement officers is required to be released to the defense pursuant to Brady-Giglio and the due process requirement of fundamental fairness?

The Ninth Circuit Court of Appeals confronted this issue in United States v. Henthorn. (15) Donald Gene Henthorn was convicted of conspiring to import and possess cocaine with intent to distribute and for travel in interstate and foreign commerce in aid of racketeering enterprises. Prior to his trial, Henthorn's attorney asked the prosecution "to produce the personnel files of all law enforcement witnesses whom it intends to call at the trial ... for evidence of perjurious conduct or other like dishonesty, in camera, to determine if those portions of the officers' personnel files ought to be made available to the defense counsel for impeachment purposes. (16) The government objected, saying "it had no obligation to examine the personnel files absent a showing by the defendant that they contained information material to his defense." (17) The district court denied Henthorn's request because he had not identified specific wrongdoing on the part of the law enforcement witnesses.

The Ninth Circuit Court of Appeals reversed the district court decision and remanded the case. The appellate court found the government to be "incorrect in its assertion that it is the defendant's burden to make an initial showing of materiality. The obligation to examine the files arises by virtue of the making of a demand for their production." (18)

It should be noted that the initial request for records does not obligate the government to turn over information contained in law enforcement witness personnel files. Rather, the request merely obligates the government to review the files. The files, or information contained therein, "need not be furnished to the defendant or the court unless they contain information that is or may be material to the defendant's case." (19) Ironically, following remand to the district court, it was determined that the files contained nothing bearing on Henthorn's case. In fact, they contained numerous commendations, but nothing indicating dishonesty or perjurious conduct. (20)

In light of Henthorn, many prosecutors and law enforcement agencies implemented procedures to ensure compliance with the notion of fundamental fairness required by due process. For example, in 1996, the attorney general issued a U.S. Department of Justice (DOJ) policy regarding the disclosure of potential impeachment material for all DOJ investigative agencies. The policy obligated each investigative agency employee to inform prosecutors of potential impeachment material as early as possible prior to providing a sworn statement or testimony in any criminal investigation or case. Putting this obligation on the investigative agency employee relieves government prosecutors from searching for such material. It does not, however, change the fact that locating and producing material evidence contained in a law enforcement witness' personnel file is the obligation of the entire government prosecution team. When the investigative agency employee notifies the prosecutor of potentially incriminating material, his duty has been fulfilled. (21) It is then incumbent upon the government attorney to determine whether the information should be provided to the defense or reviewed by the judge presiding over the matter to make that determination.

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Because the parameters of potential impeachment information are not easily identifiable, the DOJ policy gives concrete guidance regarding the type of information that investigative agencies must provide to prosecutors. The following must be disclosed:

* substantiated allegations--any finding of misconduct demonstrating bias or lack of candor or truthfulness;

* pending investigations or allegations--any credible allegation of misconduct that reflects upon the truthfulness or possible bias of the employee who is the subject of a pending investigation;

* criminal charges--any past or pending criminal charge against the employee; and

* allegations that are unsubstantiated, not credible, or have resulted in exoneration--when the allegations (unsubstantiated, not credible, or which resulted in exoneration) can be said to go to the truthfulness of the employee, even they must be revealed to the prosecutor under certain circumstances.

Upon receipt of this information, the prosecutor must decide whether disclosure is required or should be reviewed by the presiding judge.

Limitations on Discovery

Naturally, judges or jurors who consider the testimony of witnesses should be aware of issues affecting credibility. There are, however, limits on what defendants (and subsequent triers-of-fact) are entitled to learn about law enforcement witnesses, notwithstanding the fact that the information relates to the witnesses' veracity.

Even when information exists that clearly could be considered Brady material, due process may not require its disclosure. For example, in Pennsylvania v. Ritchie, (22) the U.S. Supreme Court stated that "[e]vidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." (23) Determining this materiality is vital because, as the Court reiterated in Ritchie, "the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment." (24) Of course, the difficult question is determining what information is reasonably probable to change the result of a proceeding. In fact, after the preceding discussion in the Ritchie case, the Supreme Court ruled that Ritchie was entitled to a remand so that the file in question could be "reviewed by the trial court to determine whether it contain[ed] information that probably would have changed the outcome of his trial." (25) This difficulty in determining just what is "material to guilt or punishment" has caused many investigative agencies to err on the side of caution and at least provide potentially material information to prosecutors so that they (and possibly the judge in camera) can make the final decision as to dissemination. (26)

Another factor affecting whether potential Brady material concerning a law enforcement witness is discoverable has to do with the time element involved. The Ninth Circuit Court of Appeals has examined when impeachment material becomes stale. In Harrison v. Lockyer, (27) Jewel Harrison was charged with attempted armed robbery, possession of a firearm by a felon, assault with a firearm, and discharging a firearm at an occupied motor vehicle. Harrison sought discovery of police department records for impeachment information regarding his arresting officer, including records of complaints involving events occurring more than 5 years before the incident at issue, and all documents in another officer's personnel file. (28)

Relying on California evidentiary statutes, (29) the trial court denied discovery of records predating the incident by more than 5 years. Harrison appealed, contending that the 5-year cutoff violated his due process rights to a fair trial. Based on a decision of the California Supreme Court from an analogous case questioning the constitutionality of the 5-year cutoff, (30) the Ninth Circuit Court of Appeals held that "despite the statutory cut off, citizen complaints against officers are subject to disclosure if they are 'exculpatory.'" (31) The statutory 5-year cutoff, however, was not deemed unconstitutional.

While examining the statute at issue in the state case, (32) the California Supreme Court addressed whether the prosecution has an obligation to retain evidence (including impeachment material in an officer's personnel file) for an indefinite period of time. Citing the fact that "[m]any if not most law enforcement agencies have a policy of routinely destroying citizen complaints after 5 years," (33) the court held that "[a] law enforcement agency's destruction of a citizen's complaint violates a defendant's right to due process only when the complaint's exculpatory value to a particular criminal case is readily apparent before its destruction." (34) In allowing the destruction of 5-year-old records except in the "readily apparent" situation, the California Supreme Court acknowledged that "after 5 years a citizen's complaint of officer misconduct has lost considerable relevance." (35) Law enforcement agencies should consider these issues of timeliness and materiality when deciding what, if any, information to purge from employee personnel files.

Ramifications of Nondisclosure

The Supreme Court relied on the constitutional provision of due process in rendering its Brady decision. If the requirement of disclosing information material to a defendant's guilt or innocence, or his sentencing, is violated, the government has violated that defendant's constitutional right to a fair trial. The denial may result in a conviction being overturned, a sentence being vacated, the prosecution having to conduct a second costly and time-consuming trial, or the decision to pursue a different remedy against the aggrieved defendant. The constitutional violation also may have severe consequences for the law enforcement officer who intentionally withholds Brady material.

In McMillian v. Johnson, (36) Walter McMillian sued the sheriff, an investigator for the district attorney, and an Alabama Bureau of Investigation agent for, among other allegations, withholding exculpatory and impeachment evidence during his murder trail. In deciding whether the law enforcement officials were entitled to qualified immunity from the lawsuit for a constitutional violation, the Eleventh Circuit Court of Appeals recognized that "[i]nvestigators satisfy their obligations under Brady when they turn exculpatory and impeachment evidence over to the prosecutor." (37) Because this type of information had not been provided to the prosecutor in the case, the three individuals were not entitled to qualified immunity. Rather, the relevant case law "clearly established that an accused's due process rights are violated when the police conceal exculpatory or impeachment evidence." (38) When officers intentionally withhold Brady material from the prosecutors with whom they work, they are clearly subjecting themselves to personal liability for violating a defendant's constitutional rights to due process.

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Related Issues Concerning Release of Personnel File Information

A defense attorney in a recent drug conspiracy case made an interesting request for information. In Kallstrom v. City of Columbus, (39) a group of undercover police officers involved in a federal investigation of a violent gang in Columbus, Ohio, objected to the release of personal information contained in their departmental personnel files. Unfortunately, by the time of their suit against the city of Columbus, the information had been released to the attorney. Consequently, the officers sought compensatory damages and an injunction to prevent further dissemination of their personal information. It should be noted that the attorney who received the information from the city did so pursuant to a request under the Ohio Public Records Act, (40) not as part of the discovery process involved in the criminal trial. Nevertheless, the officers claimed that the city of Columbus violated their rights to privacy as guaranteed by the Fourteenth Amendment of the Constitution.

The Sixth Circuit Court of Appeals, while refusing to provide the officers with a "blanket prohibition against the future release of information contained in their personnel files," (41) did rule that a party could avoid disclosure of highly personal information if releasing the requested private information would place "an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat," (42) and the court determines that the individual's privacy interest outweighs the public's need for disclosure. (43) Clearly, the requirements of Brady and due process do not require the release of highly personal, nonmaterial information relating to police officers.

Conclusion

Law enforcement officers take an oath to support the U.S. Constitution. (44) If an officer fails to provide information favorable to a criminal defendant--regarding either guilt or sentencing--that officer has violated the defendant's right to due process. Information reflecting upon the credibility of a government witness is information that a defendant is entitled to have his trier-of-fact (whether judge or jury) consider. This rule applies when the government witness is a law enforcement officer. Officers who intentionally withhold information that affects their credibility deprive defendants of their constitutional right to due process. No matter how destructive to the prosecution, or personally embarrassing the information may be, it must be disclosed at least to the government prosecutor. Only then can the prosecutor determine whether the information should be disseminated to the defense or reviewed by a judge in camera for making that determination.

Clearly, law enforcement agencies are justified in going to great lengths when they conduct extensive background checks on prospective employees. Hiring someone only to discover later that the person is not a viable witness would be both frustrating and costly. It is equally important to provide training to current employees so that they understand the potentially farreaching ramifications of a bad decision that affects their credibility. That single mistake in judgment will affect them for their entire law enforcement career.

Endnotes

(1) Lee Hockstader, "For Tulia, 'It Feels So Good': Texas Inmates Freed After Four Years in Prison on Suspect Charges," The Washington Post, June 17, 2003, p. A1.

(2) U.S. CONST. amend. VI ensures that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ... "

(3) U.S. CONST. amend. V, which pertains to the federal government, prohibits the deprivation of life, liberty, or property without due process of law. U.S. CONST. amend. XIV provides, " ... nor shall any State deprive any person of life, liberty, or property, without due process of law."

(4) Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

(5) All states have rules dictating their discovery process similar to those found in the federal system.

(6) Rule 402 of the Federal Rules of Evidence provides that "[a]ll relevant evidence is admissible," while "[e]vidence which is not relevant is not admissible.

(7) Supra note 3.

(8) 360 U.S. 264 (1959).

(9) 360 U.S. at 269.

(10) 373 U.S. 83 (1963).

(11) Id. at 87 (emphasis added).

(12) 405 U.S. 150 (1972).

(13) Supra note 8.

(14) 405 U.S. at 155.

(15) 931 F.2d 29 (9th Cir. 1991), cert. denied, 503 U.S. 972 (1992).

(16) Id. at 30.

(17) Id.

(18) Id. at 31.

(19) Id.

(20) United States v. Henthorn, 985 F.2d 575 (9th Cir. 1992) (unpublished opinion).

(21) See, e.g., McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996), cert. denied, 521 U.S. 1121 (1997).

(22) 480 U.S. 39 (1987).

(23) Id. at 57, citing United States v. Bagley, 473 U.S. at 682 (opinion of Blackmun, J.).

(24) Id. at 57 (emphasis added).

(25) Id. at 58.

(26) See, e.g., the DOJ's policy discussed in this article regarding the sharing with government prosecutors of potential impeachment information.

(27) 316 F.3d 1063 (9th Cir. 2003).

(28) Id. at 1065.

(29) Cal. Evid. Code Sects. 1043 and 1045.

(30) City of Los Angeles v. Superior Court, 52 P.3d 129 (Cal. 2002).

(31) Supra note 27 at 1066.

(32) Supra note 30.

(33) Supra note 30 at 135 (citing People v. Jackson, 920 P.2d 1254 fn. 10 (Cal. 1996)).

(34) Supra at 135-136 (citing California v. Trombetta, 467 U.S. 479, 488 (1984)).

(35) Supra at 135.

(36) Supra note 21.

(37) 88 F.3d at 1567.

(38) Id. at 1569.

(39) 136 F.3d 1055 (6th Cir. 1998), on remand, 165 F. Supp. 2d 686 (S.D. Ohio 2001).

(40) Ohio Rev. Code Section 149.43. The Ohio General Assembly subsequently, amended this law to limit access to peace officer records. The amendments took effect in December 1999.

(41) 136 F.3d at 1067.

(42) Id. at 1064.

(43) Id. at 1064-1065.

(44) U.S. CONST. art. VI.

By RICHARD G. SCHOTT, J.D.

Special Agent Schott is a legal instructor at the FBI Academy.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.