A 1963 Supreme Court ruling (Brady V. Maryland) requires prosecuting attorneys to turn over all exculpatory evidence to defense attorneys, including information pertaining to the credibility of police officers involved in the case. The ruling was meant to provide more balanced justice during court proceedings by guarding against an unfair advantage for prosecutors, and resulted in the compilation of “Brady Lists,” or registers of officers with histories of unprofessional or questionable conduct.
However, the Brady List is a tool rarely used to investigate an officer’s history of professional conduct, according to the Seattle Associated Press (AP).
In some states, prosecutors are required to reveal to the defense information about an officer with a history of lying, bias, excessive force, criminal misconduct, theft or fraud.
“Instances of deputies lying in reports or during investigations do not simply affect the immediate case at hand. Instead, they may influence the outcome of every other case in which the deputy’s testimony is considered,” said a 2013 oversight report by the Office of Independent Review.
However, due in part to police union influence and disparities from state to state in the application of the Brady List, many jurisdictions don’t even track police officer misconduct.
Amy Parker is with the King County Public Defense. “As a career public defender, I have listened to prosecutors routinely make the argument that defendants with prior unlawful uses of force/violence are more prone to violence and lack credibility. If prosecutors are going to apply that standard to defendants, then the same standard should apply to police officers when judging their conduct,” she wrote in an email.
The Brady ruling, however, “did not define the steps prosecutors and police officers must take to ensure defendants are informed or whether lists of troubled officers must be kept at all,” said AP.
Dishonesty by an officer in Denver, Detroit, and Seattle, will land an officer on the Brady list—but using excessive force on the job will not.
“It’s like there’s a huge continuum and the result is you don’t have the same procedures being followed not only across the country, but within individual states,” said Will Aitchison, an attorney with Labor Relations Information Systems, a Portland, Ore. group that represents police officers in disciplinary appeals.
The state of Washington will require prosecutors to develop written protocols for collecting potential impeachment information by July 2022, reported AP.
In California, legislators approved requiring a list of sustained findings of “moral turpitude or group bias,” but Gov. Gavin Newsom vetoed the measure, citing the cost of funding a mandate of such magnitude.
“An officer accused of using too much force in an unrelated arrest has nothing to do with the impeachment of their veracity,” said Dan Satterberg, a King County (Seattle) prosecutor.
Philadelphia District Attorney Larry Krasner said he believes that “prosecutors have both a legal and moral obligation to use Brady Lists,” but says that local police have pushed back on its application.
Police misconduct records have been a hot topic for at least the past year in San Francisco, creating what has become known as a “do not call” list.
“If an officer’s history is such that we just don’t believe the officer, period, we will not use him to testify during criminal cases,” said former San Francisco and current Los Angeles County District Attorney George Gascon.
