Police Misconduct and Brady Material

Recently, the head of a local narcotics investigations unit found himself in hot water pending an investigation (Edit: another officer in the unit is also under investigation). The natural question is, if the allegations against the officer prove true, what happens to the cases he made? Police misconduct is, of course, evidence which may detract from the credibility of an  officer. Where misconduct is sufficient to completely undermine the credibility of an officer (and depending on that officer’s role in the investigation), the ability to prosecute the case may be impaired. 

The deeper question then is how would evidence obtained in the course of an internal investigation, like the one mentioned in the link above, make it into the hands of a defense attorney? These sorts of internal investigations can be very secretive affairs. In the case of the investigation discussed in the linked article, for example, the sheriff’s office is playing everything very close to the chest. And, since it’s an ongoing investigation, it’s likely not disclosable under a freedom of information request. The answer to this deeper question is that it’s the state’s obligation to turn over this evidence. 

This kind of evidence is what’s known as Brady material. Brady, in turn, takes its name from the landmark U.S. Supreme Court case Brady v. Maryland, which held that exculpatory evidence must be turned over by the government to the defense. In the years that followed Brady, the Court expanded the rule to include impeachment evidence, i.e., evidence which tends to damage the credibility of a witness. 

Turning back for the moment to the issue of secrecy in internal investigations, the Brady rule goes a little bit further to cover these types of scenarios. It does this by requiring the prosecution to establish procedures and protocols to ensure that evidence disclosable under Brady is discovered and turned over to the defense. To this end, the prosecution cannot simply bury its head in the sand but must instead actively ensure that this critical evidence is uncovered and disclosed.