Part 1: Prosecutor’s Duty to Report
Although the American criminal law is based on the adversarial system where the prosecutor, representing the state, and the defense, representing the accused, engage in openly confrontational activities in order to persuade a neutral decision-maker of the truth of their story; the Supreme Court has held that under some circumstance, and despite the adversarial nature of the relationship, the prosecution must assist the defense in the preparation of their case.
The underlying reason for this counter-intuitive element of the adversarial system, is the traditional belief that the substantial power of the state, as expressed through its law enforcement and prosecutorial authority, unfairly weighs the competition for the state and against the accused. In order to more fairly balance the abilities of the state and the accused, the Constitution required that the accused be is afforded “due process”. One aspect of due process is to allow the accused as much as reasonable possible, the access to the same information that the state has obtained about the case against the accused.
Interestingly, for most of the history of the nation, this informational due process was not specifically addressed by the courts. However, beginning in the early 1960s, a number of cases began to be decided and appealed that required the Supreme Court to take deeper consideration of its applicability.
The 1963 case Brady v. Maryland, was the first case to clearly establish the Court’s jurisprudence on the informational due process that is required under the Constitution. According to the facts of the case, Brady and an accomplice were accused of murder. While Brady admitted to being a participant in the crime, he consistently argued that he had nothing to do with the murder; and that it was his accomplice that was the actual perpetrator. Unbeknownst to Brady, the accomplice had told the police that he indeed was the murderer and that Brady was not involved. Brady was eventually convicted of murder and sentenced to the death penalty. While on death row, Brady’s attorney’s discovered that the state had withheld the accomplice’s admission form the defense. They then appealed the conviction arguing that Brady had been denied his due process rights as required by the Fourteenth Amendment. While the appellate court, agreed that the state’s failure to disclose the admissions was wrong, it would not have changed the verdict of guilty although it probably would have affected the imposition of the death sentence. On appeal to the Supreme Court, the Court upheld the appellate court’s decision but in doing so announced the rule that the state was required to provide the defense with any information it has about the accused that is favorable to the defendant and important in determining: (1) whether he is guilty or not, and (2) what punishment should be imposed if he is convicted (Brady v Maryland, 1963). Failure to provide such information would require a new trial.
Nine years later, in the 1972 case Giglio v. United States, the Supreme Court again confronted the issue of informational due process, and refined and extended its holding from Brady to take into account different circumstances. In Giglio, after being arrested for bank fraud, defendant Taliento confessed to the charges and admitted that he had performed the fraud for co-defendant Giglio. After hearing Taliento’s confession, the state said that it would not file charges against him if he agreed to testify against Giglio. Talitento agreed, and on the basis of his testimony, the state was able to persuade a grand jury to enter an indictment against Giglio. Several years passed between the indictment and Giglio’s trial. In the meantime, that state’s attorney on the case changed. The new attorney did not know and was not told of the agreement that Taliento made with the prior attorney as to his testimony against Giglio. Consequently, at trial, as a result of Taliento’s testimony, Giglio was convicted. During his testimony Taliento stated that he had not been given any preference by the state to secure his testimony. Later, Giglio’s attorneys learned of Taliento’s agreement and the original attorney’s inability or unwillingness to tell the current attorney and the defense of the agreement. The then appealed the conviction arguing that under Brady, the state was required to disclose the agreement and that as a result Giglio should be given a new trial. On review of the case, the Supreme Court held, first and foremost, lying to the court, jury and defense was impressible. Secondly, when the state has information that concerns whether or not a state’s witness is credible, that information must be shared with the defense (Giglio v. United States, 1973). Failure to share the evidence, whether intentionally or by accident will nevertheless result in a new trial for the accused.
A third case that further refines the informational due process framework of analysis is the 1976 case United States v. Agurs. In Agurs, the defendant, Agurs, was charged with murder. At trial, Agurs defense was that it was not murder but self-defense because the victim was known to be violent and often carried weapons on his person. Eventually Agurs was convicted. Afterwards, Agurs attorneys learned that the state had known about the victim’s criminal record of violence and weapons possession but failed to inform the defense or the jury of that fact. Agurs then appealed the conviction based on Brady. The appellate court, applying Brady, held that Agurs should be given a new trial. The state then appealed the appellate court’s decision to the Supreme Court. The Court overturned the appellate court’s decision. However, in making its decision, the Court held that while the state was required to provide the defense with exculpatory information regardless of whether the defense asks for it or not; a new trial was only required if “the disclosure was reasonable likely to have changed the outcome of the trial.” (United States v. Agurs, 1976). In this case, the Court felt that the disclosure would not have changed Agurs’ conviction.
In conclusion, although the state and the defense are adversaries, when the state has information that tends to show that the defendant is not guilty or that his punishment should be decreased, it must supply that information to the defense without request. Similarly, if the state has information showing that one of its witnesses has questionable credibility, it must also disclose that to the defense.
Part 2: Police Disciplinary Policy
MEMORANDUM
Re: Department Disciplinary Policy
In an effort to increase the effectiveness of the valuable work that the police department provides to the community in the investigation and prosecution of criminal activity; the city attorney has brought to my attention several concerns that we must all be aware of our daily duties. These are concerns that may adversely affect the assistance that we can provide city attorneys in their prosecution of criminal cases. This memorandum clarifies those areas of concern and lays out disciplinary framework that will be implemented in the event were office policies are violated. While the hope is that this framework will deter deviant behavior within the department and amongst the staff, the primary goal is to eliminate or decrease the possibility of a criminal defendant avoiding a reasonable punishment on account of police behavior or mistakes.
First and foremost, it is essential to understand that in a criminal case, the prosecution must disclose to defense counsel of any evidence or information that tends to be favorable to the defendant. This requirement was established in the 1963 case Brady v. Maryland. In Brady, the United States Supreme Court held that in every criminal prosecution, the district attorney must inform the defendant of any evidence or information that might be helpful in determining their guilt or, if they are convicted, what punishment should be imposed (Brady v Maryland, 1963). As a general principle, what Brady means is that any part of a criminal investigation, including the actions of the investigating police personnel, is subject to disclosure to defense counsel. In other words, the fact that a police officer violates the law in conducting a criminal investigation, is subject to disclosure.
Second, the prosecution is required to disclose information that tends to question the reliability of it witness’ credibility. This requirement was established in the 1972 case Giglio v. United States. In Giglio, the Supreme Court held that, when a prosecutor knows that one of its witnesses has a credibility issue, they must disclose that information to the defendant (Giglio v. United States, 1972). Additionally, a willful attempt to hide that information by lying is prohibited. In terms of our actions as police, what Giglio means is that if an officer is found to have acted in a manner that would lead a person or jury to question their credibility, such as lying, the defense must be informed of these circumstances.
Third, the prosecution is required to disclose favorable evidence concerning the alleged criminal activity or the credibility of its witnesses even in the event that the defendant does not request it. In other words, the prosecution has an affirmative duty to inform the defense. This requirement was established in the 1976 case United States v. Agurs. In Agurs, the Supreme Court held that the prosecution was required to inform the defense of information that it had showing the victim’s criminal record. Although the defense did not request this information, the court nevertheless required that it be disclosed to the defense.
Lastly, the requirement that favorable evidence, whether it is evidence questioning the credibility of a witness, and especially when the evidence, if disclosed, would likely result in an acquittal or a decrease in the severity of a punishment, is an essential duty of every prosecution. Failure to satisfy these requirements can lead to a defendant getting a new trial in the event that failure to disclose the evidence would have affected the outcome of the trial or raised a reasonable probability that the outcome of a trial would be different (United States v. Bagley, 1985; Kyles v. Whitley, 1995).
What the above mentioned concerns mean for our particular police staff and personnel is that this police department’s disciplinary policy will be strictly enforced going forward. As we all know or should know, our disciplinary policy was implemented in 2001, with an emphasis on providing clear and unambiguous guidelines on how police officers and personnel are expected, and required to act, in the line of duty. Since that time, our disciplinary policies have always included prohibitions against breaking the law, participating in illegal activities or putting the department in a position where it must accept violations of policy that are contrary to our goal of objectively and thoroughly protecting the communities that we serve. Consequently, although the simple viewing of pornography, such as a viewing by voluntary adult for accessing online content is a commonly acceptable social activity for adults. Accordingly, while this not an appropriate or however, in terms of the risk. Frequent and/or risky traveler considerations that are widely viewed as a normally accessible activity for young adults. However, our disciplinary policy prohibits taking pictures of a subject without their position.
In conclusion, any department staff or personnel that is found to have violated the disciplinary policy will be placed on immediate administrative leave pending further investigation. Moreover, violating officers will not be allowed to participate in providing testimony on cases that they have been working on. Again, these measures are being implemented not to target the police force but rather to ensure that our actions do not provide an excuse for an otherwise guilty defendant to be set free.
References
Brady v. Maryland, 373 U.S. 83 (1963). Retrieved from https://supreme.justia.com/cases/federal/us/373/83/case.html
Giglio v. United States, 405 U.S. 150 (1972). Retrieved from https://supreme.justia.com/cases/federal/us/405/150/case.html
Kyles v. Whitley, 514 U.S. 419 (1995). Retrieved from https://www.law.cornell.edu/supct/html/93-7927.ZS.html
United States v. Bagley, 473 U.S. 667 (1985). Retrieved from https://supreme.justia.com/cases/federal/us/473/667/case.html
United States v. Agurs, 427 U.S. 97 (1976). Retrieved from https://supreme.justia.com/cases/federal/us/427/97/case.html
