This article is reprinted with permission from The Chief’s Chronicle; New York State Association of Chiefs of Police
A police officer testifies to the circumstances under which he found a gun in a woman’s possession during an interview in a public hallway outside of her apartment. Her attorney secures a hallway surveillance video that reveals the officer’s account to be false, leading to the charges being dropped against the woman.
Officers execute a search warrant that requires them to knock and announce. They conduct the raid and end up shooting and seriously injuring the occupant, who had appeared in the hallway with a gun at his side. The officers give statements indicating they announced, “Police, search warrant!” and knocked on the door prior to forcing entry. The home had surveillance cameras that depicted a much different version of how the entry took place, leading a federal magistrate to conclude the officer’s statements “were false.” [1]
Cases such as these place police administrators in a difficult position and compromise the integrity of the agency. Internally, police administrators need to be able to rely on what their officers tell them. But beyond that internal issue, what are the implications of these findings as to the involved officers’ ability to perform their essential job functions?
The Brady/Giglio Rule
Most law enforcement officers should be familiar with the legal implications of the cases of Brady v. Maryland (373 U.S. 83 (1963)) and Giglio v. United States (450 U.S. 150 (1972)). The impact of these cases, and other similar cases that followed, established what is commonly known as the Brady/Giglio rule. This rule requires the prosecution to provide the defense with any evidence that could possibly be exculpatory (Brady) and information that might affect the credibility of a prosecution witness (Giglio), which includes police officers. Law enforcement similarly has a duty to disclose such information to the prosecution. The best rule for police administrators to follow: If there is any doubt whether the information is exculpatory and/or could impact the credibility of a witness, let the prosecutor decide.
A comprehensive analysis of all the possible types of Brady/Giglio material is beyond the scope of this article. My focus is on the credibility of police officers and the impact dishonesty can have on both the officer’s career and the operation of the agency. [2] Actions such as lying during an official investigation, falsifying business documents, giving false testimony, filing false search warrant affidavits and intentionally mishandling contraband and/or evidence are all examples of acts that would need to be reported pursuant to Brady/Giglio.
Implications of the Rule
The proliferation of recording devices is revealing that acts of officer deception do, unfortunately, occur. One occurrence is too many and damages the image of the entire law enforcement profession. When the agency does not take any disciplinary action against the officers, this damage is compounded.
Are their times when police officers may use deception in the course of their duties? The answer to this question is a definitive yes. An undercover police officer is clearly using deception for legitimate and lawful purposes. A police officer during a street encounter may tell the person being interviewed a false reason for the interview to keep the person at ease. Another example is using deception during the interview of a criminal suspect. All these involve the use of deception for legitimate and lawful purposes. The key factor is that the officer does not lie about using such deception in subsequent case filings or testimony. For example, telling a suspect in an interview that a co-suspect has implicated him when this is not true is legal and allowed by the courts. Ignoring this fact in case notes and testimony and denying it occurred is not legitimate and could amount to a Brady/Giglio violation.
So, what is an administrator to do about the officers who may now appear forever on a Brady/Giglio list? This can severely impact the ability of an officer to do his/her job and prohibit them from working criminal investigations. If the officer is allowed to continue working, the agency is jeopardizing future prosecutions. A criminal suspect may have in fact have committed a crime, but because the arresting officer has credibility issues, a judge or jury may not believe the officer’s testimony. The suspect may then walk free or be given a greatly reduced plea bargain.
In some cases, the officer is arrested for perjury or a related charge, making termination proceedings easier. For example, in one case a detective placed a suspect in an interview room and then came in to interview him a few minutes later. Without administering Miranda warnings, the detective interviewed the suspect for 80 minutes. During both a pretrial hearing and at trial, the detective repeatedly lied about the circumstances of the interview and indicated he did not question the suspect prior to giving Miranda warnings. Unbeknownst to the detective until he was cross-examined at trial, the suspect had recorded the entire conversation on his MP3 player. The detective was charged with and convicted of perjury. [3]
In the case examples cited at the beginning of this article, however, it appears no charges were filed nor was there any discipline against the officers, even with the video evidence. These cases are admittedly difficult to deal with. If a chief executive officer of an agency chooses not to attempt to discipline and/or terminate the officers, then the CEO is kicking the problem down the road, where it will keep rearing its head. Proper adherence to the Brady/Giglio rule would at the very least require disclosure to your district attorney.
Agency Culture, Documentation and Hiring Practices
Agencies that take no action to terminate officers who have been proven to be dishonest are placing themselves at risk. Failure to disclose this information could create both potential liability and a public relations nightmare. The officers’ duties will be severely limited as they will not be able to testify in court. I do not know of many agencies that can afford to create administrative positions for officers who placed themselves in this situation by making the decision to lie.
The best way to avoid Brady/Giglio issues is to create a culture where officer dishonesty never occurs in the first place. You should make clear to your members that there is no piece of evidence in any car, on any person, or in any house worth the officer compromising their integrity or the integrity of the agency. Accept that mistakes will be made and encourage and reward officers for telling the truth about them. Make it clear that most transgressions may lead to some type of discipline – but lying about them will elevate the situation to one where you will need to seek termination.
When an officer chooses to lie, file false or fabricated paperwork, or otherwise exhibit clear evidence of dishonesty, then your investigation and documentation must be complete and thorough. Termination of the officer, who has effectively made him/herself useless as a police officer, should be sought. Please note that I used the phrase “clear evidence” to categorize the interpretation of the available information. If there is video applicable to the interpretation of the officer’s statements or testimony, then that video must be reliable and accurately interpreted. [4] In addition, administrators need to understand and consider that officers under stress may have imperfect memories and their recall of an event may not be consistent with other evidence. [5]
Placing an officer on a Brady/Giglio list can effectively end their career and doing so should not be taken lightly. But when an officer clearly states, as in the example cited earlier, that certain things happened in a public hallway, and the video shows those things did not happen, then you have an issue that must be dealt with.
I will conclude with one final word of caution regarding hiring practices. It is difficult to confront the possibility that one of your own officers may commit an act worthy of being placed on a Brady/Giglio list. Then why would you want to hire someone who brings that issue with them from a previous agency? Any administrator who hires an officer from another department without doing a complete review of that officer’s personnel and discipline files deserves what they get. It should be standard practice to obtain a release from the officer allowing an inspection of those records from the prior agency, especially when the officer has already separated from the prior agency.
References
1. Betton v. Knowles, 2018 WL 4404073 (D. South Carolina 2018); adopting report and recommendation 2018 WL 3744957 (D.S.C. 2018); aff’d Betton v. Belue, 942 F.3d 184 (4th Circ. 2019); see also this article by Chief Ken Wallentine.
2. For more on how Brady/Giglio can impact an officer’s personnel file, see this article by Scott Sergent.
3. People v. Perino, 76 A.D.3d 456 (2010)
4. For issues related to the interpretation of video evidence, see this article and on-demand webinar Point/Counterpoint: The Debate Over Officer Viewing of BWC Video.
5. For more on memory and recall in use of force incidents, see this article.
