By: Joe Hegedus, Esq.
Lately, it has come to my attention that, apparently, employees of certain prosecutor’s offices are advising law enforcement employers that there is a mandatory obligation to immediately disclose personnel records of peace officers to defendants in criminal cases. Depending on the jurisdiction, I have heard this obligation defined in terms that typically appear to be all encompassing.
However, a review of the actual law applicable in cases of this nature, seems to paint a slightly different picture.
The seminal case in this area of the law is Brady v. Maryland, 373 U.S. 83, 87 (1963), where the United States Supreme Court held that:
the suppression by the prosecution of evidence favorable to an accused 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.
In United States v. Bagley, 473 U.S. 667, 669 (1985), the Court revisited its decision in Brady, supra., by stating:
[1A] In Brady, v. Maryland, 373 U.S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.
The Court in Bagley then amplified its decision in Brady, supra., as follows:
The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or to punishment.” 373 U.S., at 87. See also Moore v. Illinois, 408 U.S. 786, 794-795 (1972). The Court explained in United States v. Agurs, 427 U.S. 97, 104 (1976): “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” The evidence suppressed in Brady would have been admissible only on the issue of punishment and not on the issue of guilt, and therefore could have affected only Brady’s sentence and not his conviction. Accordingly, the Court affirmed the lower court’s restriction of Brady’s new trial to the issue of punishment.
The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive that defendant of a fair trial:
“For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose. . . .”
“. . . But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” 427 U.S., at 108.
Bagley, at pp. 675, 676, emphasis supplied.
The Bagley Court then further explained that impeachment evidence, as well as exculpatory evidence, both fall within the disclosure requirements of Brady. See Giglio v. United States, 405 U.S. 150, 154 (1972).
The Bagley Court continued by reiterating that regardless of whether the suppressed evidence is exculpatory or utilized for impeachment purposes, it is only subject to disclosure if it is material to guilt or punishment and “[t]he evidence 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.” Bagley, supra., at pp. 681-682.
Consequently, as emphasized by the Ohio Supreme Court, “[s]ince Bagley, the “reasonable probability” test has been held to apply in all cases where the defense alleges the prosecution improperly suppressed exculpatory evidence.” State of Ohio v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988).
For the purposes of this article, then, the question is: do the Brady and Bagley disclosure requirements apply as broadly to disciplinary investigations contained in personnel files as is being demanded by prosecutors in certain jurisdictions?
In my opinion, the answer is probably not.
For example, in United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), the Sixth Circuit Court of Appeals considered a case where a defendant challenged his felony convictions, inter alia, on the basis that the Court’s denial of his motion for disclosure of the officers’ personnel files, in an effort to find information that cast doubt on their credibility, violated Brady v. Maryland.
In rejecting this argument, the Court indicated:
Mr. Driscoll offered no support for his contention that personnel files might contain information important to his case. “The Supreme Court has made clear that the Brady rule is not an evidentiary rule which grants broad discovery powers to a defendant and that ‘there is no general constitutional right to discovery in a criminal case.’” United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845, 51 L. Ed.3d 30 (1977)). “The Court also has made it clear that while the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is subject to disclosure.” United States. v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988). Furthermore, “the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2399-2400, 49 L. Ed. 2d 342 (1976).
In light of these principles, we agree with United States v. Andrus, 775 F.2d 825 (7th Cir. 1985)., in which the Seventh Circuit rejected a defendant’s argument that he should have had access to material from testifying officers’ personnel files that might have been used for impeaching them.
“Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court.”
Sometime later, the United States District Court for the Southern District of Ohio considered a similar request by a defendant, in a discovery motion, which sought to generally examine employment information of all testifying witnesses. In denying the motion, the court relied on Driscoll, supra., by stating:
With Item 8F, Defendant does not ask for the disclosure of any particular information; rather, he requests that the Government examine the personnel files of all its testifying witnesses, including law enforcement officers, to ascertain whether those files contain any evidence of perjurious conduct, dishonesty or any other material that is relevant to impeachment. The Court will decline to order the Government to conduct the requested examination of personnel files. Although the Ninth Circuit has held that the Government has an obligation to examine the personnel files of testifying law enforcement officials in order to comply with its obligations under Brady, see United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), the Sixth Circuit implicitly rejected Henthorn in Driscoll, supra. Therein, the Sixth Circuit concluded that, under Brady, the Government was not obligated to produce personnel files of its testifying agents, based solely upon the defendant’s speculation that those files might contain impeaching information. In support of that conclusion, the Sixth Circuit relied, inter alia, upon United States v. Andrus, 775 F.2d 825 (7th Cir. 1985), wherein the Seventh Circuit concluded that the defendant’s speculation that personnel files might contain impeaching information did not impose upon the District Court the obligation of conducting an in camera review of those files, since Brady was not a discovery device. The dissenting opinion in Driscoll argued that the Sixth Circuit should decline to follow the Seventh Circuit’s decision in Andrus and should adopt the approach of the Ninth Circuit in Henthorn, a case which was described by the dissent as being “on all fours.” 970 F.2d at 1489. The fact that this Court will not require the Government to conduct a review of the personnel files of its testifying witnesses does not, however, relieve it of its obligation under Brady of disclosing impeachment material of which it becomes aware, including any such material contained in the personnel files.
United States v. Floyd, 247 F.Supp.2d 889, 901 (S.D. Ohio, 2002).
More recently, another District Court, within the Sixth Circuit, followed Driscoll by reiterating that “a speculative, nonspecific claim that an officer’s personnel file might contain material helpful to the defendant is not sufficient to entitle the defendant to the officer’s file. . .”
United States v. Johnson, 2010 U.S. Dist. Lexis 94513 (W. D. Tenn. 2010). See also People of the State of Michigan v. Rawls, 2007 Mich. App. Lexis 760 (Court of Appeals of Mich. 2007).
Finally, in State of Ohio v. Widmer, 2013-Ohio-62; 2013 Ohio App. Lexis 44 (12th App. Dist. 2013) the Ohio Court of Appeals for Warren County considered a claim by a defendant that the prosecution violated Brady v. Maryland by not disclosing an administrative investigative report that indicated that one of the investigating police officers had allegedly lied about some of his credentials, listed in an employment application and resume’ letter, more than ten years prior to the relevant murder investigation.
After a comprehensive review of Brady and its progeny the Widmer Court observed:
It is one thing to require prosecutors to inquire into whether the police have discovered exculpatory or impeachment evidence during the course of the investigation. It is quite another to require them, “on pain of possible retrial, to conduct disciplinary inquiries into the general conduct of every officer working the case.” Robinson, 627 F.3d at 952. Here, Braley’s alleged misconduct is so unrelated to his role in the investigation and to the state’s case against Widmer, that it is difficult to burden the prosecution with an obligation to discover this evidence.
(Id., 2013 Ohio App. Lexis 44 at p. 54).
Further, the Widmer Court explained that “cross-examining Braley on the employment applications and the other information in the DD&M report would have only created a dispute about purely collateral matters, i.e., whether Braley fabricated various credentials over ten years ago for jobs unrelated to his position as lieutenant detective. Braley was not on trial for fraud or misconduct, Widmer was on trial for murder, and examining this part of Braley’s past would only lead to surprise, jury confusion and a waste of time, which are the very reasons for the rule against impeachment on collateral matters.” Id. at p. 47.
The Widmer Court then denied the defendant’s claim that a Brady violation occurred by concluding:
After a thorough review of the record below, we find that even if the allegedly suppressed evidence in the DD&M report could have helped the defense to cast some doubt on the police investigation under Kyles, it is not enough to establish materiality. Id. at 109-110 (“[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense”).
Moreover, the suppressed information was not material impeachment evidence. See Id. at 676-677; United States v. Jones, 399 F.3d 640, 648 (6th Cir. 2005). Generally, impeachment evidence constitutes Brady material when the evidence relates directly to a key witness’s veracity on matters about which he or she has testified at trial. See Giglio, 405 U.S. at 154. However, as we discussed earlier, Braley was not a key witness, and the allegedly suppressed evidence pertained only to collateral matters that had nothing to do with Braley’s trial testimony. See, e.g., People v. Fernandez, 249 A.D.2d 3, 5, 670 N.Y.S.2d 840 (1998) (“where the impeachment information has no bearing on defendant’s guilt or innocence, such as where the prosecution witness’s misconduct is completely unrelated to the trial at which he is testifying and [his] testimony is not crucial to the prosecution’s case, its nondisclosure does not constitute a Brady violation”). Even if the new evidence was severely impeaching, the fact remains that Braley’s credibility was not determinative of Widmer’s guilt or innocence. Instead, Braley’s testimony was simply cumulative to the considerable evidence bearing on Widmer’s guilt, and there is no reasonable probability that impeaching Braley would have resulted in a different outcome. See Evid.R. 608(B); Agurs, 427 U.S. at 112; Jones, 399 F.3d at 648.
In sum, under the Brady line of cases, the prosecution has an obligation to disclose personnel information that could be utilized for impeachment purposes only if that information is material to the defendant’s guilt or level of punishment. Moreover, materiality in the Brady sense requires disclosure, “if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. Thus, the burden of disclosure of evidence contained in personnel files, for impeachment purposes, under Brady, may not be as far-reaching as some prosecutors seem to believe.
 This purported obligation to disclose personnel records has been described to me, at times, in the broadest possible terms. However, the information actually required to be disclosed concerns only information that is material to guilt or punishment. Notwithstanding that, I have been told that some prosecutors are requiring that all disciplinary records be provided on an ongoing basis.
 It appears to me that this explanation of Brady, to include evidence that may be utilized to impeach a prosecution witness, is the genesis of the perceived obligation to disclose disciplinary records of law enforcement officers, especially if the investigation resulted in a finding of dishonesty.