Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, "Giglio, Brady and Discipline Disclosures: What Prosecutors and Law Enforcement Need to Know." Here are some of his responses.
Audience Question: Would a law enforcement officer who is lying to his superiors about a workplace rule or direction — not related to a particular case or anything — but an untruthfulness nonetheless, is that Brady and Giglio related?
Rick Hodsdon: It is. If they end up being disciplined for it. Even though it is not case specific, the key is they were disciplined for lying. An example of a case that ended tragically where a police officer who by all accounts was a highly-dedicated, highly-competent officer, he had an accidental discharge of a firearm. Big deal, so what? If he had filled out a report and honestly said what happened and told his boss what happened, probably nothing. But unfortunately, for all concerned, he lied about it. The lie was discovered and he was advised going through the internal affairs and discipline process that because of the Brady-Giglio obligations, he was going to be disciplined and he was, therefore, going to be fired because his agency is one of those with a central work rule to provide credible testimony and prosecutor said, "Well, that's pretty much shot now", and unfortunately the officer killed himself as a result.
Yes, it doesn't have to be specific to a case to be disciplined. If you lie about other such issues, it is potentially covered by Brady-Giglio.
Audience Question: How are disclosure requirements impacted when a case involved a confidential informant?
Rick Hodsdon: If the confidential informant is going to be a testifying informant. You get your testifying CIs and non-testifying. If the informant is a testifying CI, the disclosure, the Brady obligations for that testifying informant still exists. If the informant is working off a knot, we have to disclose that. If the informant has a criminal record, we have to disclose that. If the informant is being paid, that is all going to have to be disclosed.
Audience Question: How does Brady-Giglio apply to expert witnesses, or does it?
Rick Hodsdon: The case law makes no distinction between an expert witness and any other person. If I had a person who is a scientist of some sort and they were brought in to testify about some genetic issue, and it turned out that they have been fired by a private employer — and now they're freelancing out on their own and their resume says they used to work for the state crime lab. If I found out that they had been fired from the state crime lab for fudging a lab report, that would absolutely be Brady material.
Audience Question: What liability does an agency take on if they discover after the fact that an officer was not forthright during the initial background hiring but it was discovered by another agency and the hiring agency was notified but retains the officer within their agency?
Rick Hodsdon: If that agency is clever in their background investigation packet. They'd advise that person who completed the background investigation, "If you lie in any of these background packets, we have the right to terminate your employment even if we don't discover this for quite some time down the road". If you have that disclaimer in their packet, most places that I know — even if it might be several years later — they have the ability to terminate that person because they gave notice to the person. If they keep that person onboard, I think the fact that the person lied to get a job is certainly reflective of dishonesty and false statement. From now on, that's going to be disclosed to the prosecuting attorney when that person is going to be a witness in a proceeding. There's no doubt in my mind that every prosecutor I would talk to about that would absolutely expect to have that information disclosed.
Audience Question: What are the privacy rights that a law enforcement officer has when it comes to prosecutors’ review and disclosure of potential Giglio allegations?
Rick Hodsdon: Those privacy rights vary massively from state to state. In a state like mine and few of the more open records states. My colleagues in Florida tell me that Minnesota and Florida compete to be who is the most open records oriented. Prosecutors have the right to everything. For sure that the members of the public have. That would be the fact that a person has been disciplined and the facts from which they have been disciplined. Their disciplinary letter, their disciplinary consequences. On the other extreme as I mentioned, in California police officers' entire disciplinary records are not public record and there's an entire court process, a waltz and a dance that needs to go through to get those records from the police agency to the prosecutors. You absolutely have to know the privacy personnel public record privacy laws of your state and it's going to vary widely in terms of what protections.
If you're in a jurisdiction where what the prosecutor obtains is not a public record but is still something because of constitutional requirements, the Davis versus Alaska kind of situation we discussed. One option there, you may want to work between police and prosecutors is – if you have to do disclosure, can we also get a protective order to keep the defense attorneys from further disseminating this information using in other areas. This is something we see in cases involving child abuse and child videotapes. The defense has a constitutional right to a copy but by court order, it's prohibited from use of this information anywhere outside this one particular prosecution. That might be a middle ground option for those states that are trying to balance the officers' privacy rights and the prosecutor's Brady obligations.
Audience Question: If an accusation is not sustained and there is no discipline, then is it still a Brady or Giglio issue?
Rick Hodsdon: So far, in my view, no. I have yet to find a court that has gone that far. But as I mentioned at the beginning of my discussion, I know some prosecutors that are so nervous about this whole issue that they may think that that is a Brady-Giglio issue. Those start to become highly problematic. Even in states that have very wide-open record laws, unsustained discipline of public employees, unsustained disciplinary allegations — those are not public information. Those employees are entitled to privacy of those records. The middle ground remedy in those cases when sometimes a judge might take the bait if you will. What I want to suggest to prosecutors at that mode is rather than cough it up, or get crossways with your law enforcement agency, suggest to the court an in-camera review. Have the judge in the pending criminal prosecution review the disciplinary investigation that was investigated did not result in sustained discipline, and then see if the judge agrees or is there some type of Brady exculpatory material. I litigated this a lot. I used to handle besides lots of dope cases, I handle all the prison prosecutions for years in my jurisdiction. We have Minnesota's two major adult prisons. We had staff members all the time when allegations of misconduct among staff were made and we would've applied the same principles. The court judges on occasion, "Ok, bring me in the personnel records". They review the staff personnel records and say, "No, they're not admissible, there's nothing in here you don't get them". So that might be a middle ground where you could work between the prosecution, civil attorney for the law enforcement agency, and protect the privacy and rights while meeting the obligation.
Audience Question: For example, an expert employed by the state, such as at a lab, is terminated for work-related dishonesty. Clearly, prosecutors have to disclose that to defense and all pending cases in which evidence was touched by that person. Are prosecutors also required to alert defendants in closed cases that this person was also terminated and why?
Rick Hodsdon: If you found out as a prosecutor, you didn't know about it, this happened maybe three or four years ago and you've got a case a year or two ago where even though in good faith you didn't know about it, now you found out about it. Most prosecutors that I know of is going back to that defense counsel and say, here's something we just found out. We didn't disclose it because we didn't know about it, so you do what you're going to do with it. And if they bring up petition for post-conviction relief or habeas corpus or whatever is available in that particular state and jurisdiction, then what the prosecutor is going to end up arguing, in that case, is it's basically it's not material. It didn't make any difference or would've affected the outcome of the verdict and therefore, the conviction should not be reversed. Every prosecutor that I'm aware of is going to go back to that circumstance. They're going to advise counsel — I know one jurisdiction that had this problem recently, and there are multiple individuals who are now seeking or obtaining post-conviction relief. No fall to the prosecutor. The prosecutor is not going to get in trouble with the lawyer's board but it certainly is going to impact the results of those prosecutions.