What is the Brady case and what does it have to do with you as a law enforcement officer or prosecutor? And who is Giglio?
If you're confused by these cases, how they impact your cases and what they have to do with discipline, be sure to join this recorded webinar as Rick Hodsdon discusses:
- Brady and Giglio obligations and case law
- How employment discipline is evolving and impacting Brady obligations
- What a "Brady List" is and its implications
- Options to manage Brady issues
- The potential for cooperation and conflict between law enforcement and prosecutors
- Future trends and emerging issues on Brady obligations
Justice Clearinghouse Editors: Rick, you’re a new presenter for our community. Tell us a bit about yourself and your area of expertise.
Rick Hodsdon: In the 40 years since law school, I have been working in the public sector as a prosecutor, civil litigator and legal advisor to the government. I currently serve in the Washington County Attorney's Office in Stillwater, Minnesota and also work part-time as general counsel for the Minnesota Sheriffs, serve as chair of the MN Board of Private Detectives and Protective agent Services and teach part-time for MNSCU and Northwestern University School of Police Staff and Command. What brought me to this series of seminars is my work with the National Sheriffs Association Legal Advisor Committee.
For the Brady/Giglio topic, I would not say I have a unique perspective but it is a rare one because very few attorneys have extensive experience as a prosecutor, government personnel attorney and government records and data attorney. I have worked in and continue to work extensively in all three of those areas. Working as an instructor all over the country and networking with attorneys from throughout the country who represent sheriffs gives me a national perspective that I think is valuable in classes like these.
Brady was the first case to establish as a matter of constitutional law
that a prosecutor has a duty to disclose exculpatory information
and it came up to the Court through the state.
JCH: What do you think are the biggest mistakes or misunderstandings justice professionals might have regarding their obligations due to Brady and Giglio?
Rick: There are a couple of areas where I see issues and they tend to create conflict between law enforcement and prosecutors. Many prosecutors appear to not yet be aware of the legal issues surrounding the role of internal discipline as arguable Brady material and when they do learn of this topic I find they may overreact and try to impose Brady type demands on law enforcement. Law enforcement may blur the distinction between the prosecution disclosure obligations to the defense and what is admissible evidence. In a vast majority of cases, prosecutors may disclose an officer has been disciplined and then fight hard, and most often successfully to exclude the evidence at trial.
JCH: For those of us who aren’t lawyers, how are the Brady and Giglio cases related?
Rick: Brady was the first case to establish as a matter of constitutional law that a prosecutor has a duty to disclose exculpatory information and it came up to the Court through the state. Giglio was a federal case and it along with several other lesser known cases greatly expanded those obligations to include evidence that might affect the credibility of witnesses and that the duty includes evidence in possession of law enforcement. When I deal with federal prosecutors and agents they tend to speak Giglio whereas the rest of us may reference Brady but in fact by now either case really stands for a series of cases we are going to discuss in the seminar.
Giglio was a federal case and it along with several other lesser known cases
greatly expanded those obligations to include evidence
that might affect the credibility of witnesses
and that the duty includes evidence in possession of law enforcement.
JCH: Why can the Brady and Giglio requirements be challenging for justice professionals?
Rick: Despite a lot of discussion being generated about whether and the scope of employment misconduct is Brady material, there is actually not much case law on the subject and what there is varies by jurisdiction. Because a Brady violation could be and has been grounds for prosecutors to be disciplined by the bar many are playing it extra safe by seeking extreme amounts of records on discipline. Law enforcement understandably would like to protect the privacy of its staff, and in some states the employment privacy laws or court decisions may make the conflict even worse. California is wrestling with that issue right now.
The other major challenge is that in many places the prosecutor and agency have not agreed on a workflow or record keeping process. The so-called "Brady List" has several different models and options wherein some the agency keeps discipline records, some places the prosecutor does, some places they both do and others neither of them yet do. This is an area where there are competing interests and reasonable people can disagree and it really good to use some clear communications between the interested parties.
Click Here to Watch "Giglio, Brady and Discipline Disclosures: What Prosecutors and Law Enforcement Need to Know."