While most police officers may be honest and upstanding, there is a minority that do not follow the law. They may be guilty of misconduct, or even caught lying on the job. They may have committed perjury or simply tried to pad their overtime.
When an officer has been officially found to have been dishonest, it’s crucial that the defense and jury be told so they can properly evaluate the officer’s credibility. However, the defense often has no way of knowing whether particular officers have troublesome histories. It’s up to the police and prosecutors to ensure that the defense is told.
In 1963’s Brady v. Maryland, the U.S. Supreme Court ruled that the government, in the form of police and prosecutors, has an affirmative legal duty to notify the defense of any “exculpatory” evidence. That is any evidence that tends to show the defendant is not guilty or which calls the prosecution’s case into question. This is often referred to as “Brady evidence.” To comply with the requirements of Brady, prosecutors are encouraged to keep a “Brady list” of officers with known credibility issues.
But are police and prosecutors sharing their Brady lists with the defense and public? Or are they letting tainted officers testify without challenge?
Recently, USA TODAY completed an in-depth investigation into Brady compliance. Their conclusion is that far too many are not.
The wrongful convictions are piling up. According to the National Registry of Exonerations, the number of cases overturned for police or prosecutorial misconduct more than doubled between 2008 and 2018.
Significant resistance to Brady rules?
USA TODAY contacted police departments and prosecutors’ offices across the country. It found evidence that thousands of people have been charged or imprisoned based, at least in part, on testimony from officers with documented histories of credibility problems.
Furthermore, the reporters found at least 300 prosecutors’ offices around the country that simply don’t track whether their local police officers have a documented history of lying or misconduct. These offices, which range in size from rural operations to cities like Chicago, don’t keep Brady lists at all.
In those departments and prosecutors’ offices that do keep Brady lists, those lists are often incomplete. USA TODAY was able to find at least 1,200 officers who hadn’t been added to local Brady lists despite proven histories of serious misconduct or lying. Of those 1,200, 261 had specifically been disciplined for job-related dishonesty.
In many cases, the Brady lists are not public. That makes it impossible to determine whether they are following the law.
Defendants have a constitutional right to Brady evidence, including Brady lists. Failure to turn that evidence over risks innocent people being charged and convicted.
