Disclosing Exculpatory Evidence - Investigation - LawOfficer.com

Disclosing Exculpatory Evidence

The Brady decision holds officers personally liable for their inaction



Laura L. Scarry | Saturday, February 18, 2012

Without question, as a sworn LEO, you have received training regarding your duty to disclose to the prosecution material and/or exculpatory evidence in any case you’re involved with. What? You say you haven’t received such training? Well, you’re certainly aware of the obligations imposed on the prosecution and police by the landmark decision of Brady v. Maryland1 and its progeny, right? No? Well, your failure to disclose such evidence can result in civil liability not only against your agency, but against you.

Personally, I’m not surprised to hear LEOs from around the country tell me they’re unfamiliar with the Brady decision. Despite Brady having been decided nearly 50 years ago, training on this topic and what it means to police officers from a practical standpoint is woefully insufficient. However, what is surprising is the assumption by prosecutors, judges and civil rights attorneys that LEOs are keenly aware of what exculpatory evidence is and their obligation to disclose such evidence to prosecutors.
Brady v. Maryland & Its Progeny
In 1963, the U.S. Supreme Court ruled that the government has a constitutional duty to disclose material evidence to the defense in a criminal prosecution. Specifically, the Court held that “the suppression by the prosecution of evidence favorable to an accused [exculpatory] upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”2 “Due process” is the constitutional provision under the Fifth and Fourteenth Amendments that guarantees a person’s life, liberty or property won’t be taken from him without first being accorded due process or fundamental fairness.
In Strickler v. Greene,3 the U.S. Supreme Court stated, “. . . the duty to disclose [Brady] evidence is applicable even though there has been no request by the accused,4 and that the duty encompasses impeachment evidence as well as exculpatory evidence.5 Such evidence is material ‘if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.’”6
Material evidence includes evidence that relates to a witness’ credibility. The obligation to turn over this evidence to the criminal defense is an ongoing duty of the prosecutors, and if violated, could jeopardize the criminal case and could form the basis for a later civil rights lawsuit in the future. This type of evidence could include a witness who has been offered a deal by the prosecution.
Often, police officers testify as witnesses in a criminal case and, as such, they may be subject to impeachment by the introduction of information that could cause a judge or jury to question the officer’s motives and/or credibility. If an officer who’s going to testify has written false reports or given false statements, that evidence must be disclosed by the prosecution to the criminal defense.


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Laura L. ScarryLaura L. Scarry, Law Officer's Legal Eagle columnist, is a partner in the law firm of DeAno & Scarry, with offices located in Wheaton and Chicago, Ill.


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