Training Bulletin Over fur decades ag, the United States Supreme Curt decided the case f Brady v. Maryland (1963) 373 U.S. 83, establishing the rule that a prsecutr has a due prcess affirmative duty t disclse t a charged criminal defendant all material evidence that is favrable t the defense and that is pssessed by the prsecutin team. Due Prcess is the cnstitutinal prvisin under the Fifth and Furteenth Amendments guaranteeing that a persn s life, liberty r prperty will nt be taken frm him r her withut first being accrded due prcess, i.e., being treated with fundamental fairness. Infrmatin that qualifies as material evidence, and that which des nt, will be discussed in this training bulletin. The prsecutin team includes the prsecutr and any law enfrcement agency invlved with the particular case in issue. Since Brady was decided, a myriad f new cases have fine-tuned, and smetimes cnfused, the legal bligatins f the public prsecutr as t what is, and what is nt, discverable (i.e., the infrmatin that must be given t the defense in a criminal prsecutin). The fllwing are the main pints under this Brady discvery bligatin: A prsecutr has a duty t learn f favrable evidence knwn t ther prsecutin and investigative agencies acting n the prsecutin s behalf, including plice agencies. (Kyles v. Whitley (1995) 514 U.S. 419, 437-438.) There is a duty n the part f the prsecutin, even in the absence f a request therefre, t disclse all substantial material evidence favrable t an accused, whether such evidence relates directly t the questin f guilt, t matters relevant t punishment, r t the credibility f a material witness. (Peple v. Ruthfrd (1975) 14 Cal.3 rd 399, 406.) The prsecutr s duties f disclsure under the due prcess clause are whlly independent f any statutry scheme f reciprcal discvery. The due prcess requirements are self-executing and need n statutry supprt t be effective.... (I)f a statutry discvery scheme exists, these due prcess requirements perate utside such a scheme. The prsecutr is bligated t disclse such evidence vluntarily, whether r nt the defendant makes a request fr discvery. (Izazaga v. Superir Curt (1991) 54 Cal.3 rd 356, 378.) Failing t cmply with the rules under Brady results in what is cmmnly knwn as a Brady vilatin. A Brady vilatin will likely lead t a reversal f a cnvictin n appeal and/r a new trial fr the accused. There are three cmpnents t a Brady vilatin: The evidence at issue must be favrable t the accused because it is exculpatry, r because it is impeaching; The evidence must have been suppressed by the State, either willfully r inadvertently; and Prejudice must have ensured. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) The suppressin f favrable evidence prduces prejudice t a defendant nly if the suppressed evidence is material. Evidence is material nly if there is a reasnable prbability that the result f the trial wuld have been different if the suppressed [evidence] had been disclsed t the defense. (Strickler v. Greene, supra. at pp. 289.)
There are six separate categries f favrable evidence: Evidence mitigating punishment. (Brady v. Maryland, supra.) Evidence directly ppsing guilt. (E.g.; Peple v. Jacksn (1991) 235 Cal.App.3 rd 1670, 1676; A witness belatedly (during jury deliberatins) cming frward saying that he saw smene else cmmit the crime.) Evidence indirectly ppsing guilt. (E.g.; Peple v. Clark (1992) 3 Cal.4 th 41, 133-134; Peple v. Kaurish (1990) 52 Cal.3 rd 648, 684-687; Evidence f ther similar crimes cmmitted by anther persn, circumstantially prving that this ther persn, and nt the defendant, cmmitted the present ffense.) Evidence supprting defense testimny. (E.g.; Peple v. Cllie (1981) 30 Cal.3 rd 43, 54; Infrmatin that tends t reestablish the credibility f defense witnesses.) Evidence supprting a defense mtin that wuld weaken the prsecutin s case. (E.g.; United States v. Gamez-Ordun (9 th Cir. 2000) 235 F.3 rd 453, 461; evidence relevant t a defense mtin t suppress.) Evidence impeaching a prsecutin witness s credibility (United States v. Bagley (1985) 473 U.S. 667, 676.), such as: Cntrary, cnflicting statements. False Reprts. Inaccurate statements and reprts. Other evidence cntradicting prsecutin witness statements and/r reprts. Prmises r ffers f leniency, r ther inducements, express r implied. Felny cnvictins. Miscnduct invlving mral turpitude. Misdemeanr cnvictins invlving mral turpitude. Pending criminal charges. Parle r Prbatin status. Reputatin fr untruthfulness. Alchl and/r drug use. Gang membership. Bias tward the defendant. What is NOT Brady material: Rumr and speculatin is nt evidence that must be revealed pursuant t Brady. (Sledge v. Superir Curt (1974) 11 Cal.3 rd 70, 75; Peple v. Breaux (1991) 1 Cal.4 th 281, 298-299; United States v. Agurs (1976) 427 U.S. 99, 109, fn. 16.) The Brady rule des nt apply t inculpatry evidence; i.e., evidence against a defendant, r evidence tending t cnvict. (Peple v. Hill (1998) 17 Cal.4 th 800, 849.) Nr des it include neutral evidence; i.e., evidence that tends neither t cnvict nr exnerate the defendant. (United States v. Rhdes (2 nd Cir. 1978) 569 F.2 nd 384; United States v. Bryan (9 th Cir. 1989) 868 F.2 nd 1032, 1037.) Brady des nt include immaterial evidence; i.e., evidence nt reasnably prbable t prduce a different result. (Peple v. Earp (1999) 20 Cal.4 th 826 870.) The Brady Index: As a result f the abve, the District Attrney s Office has established what is nw knwn as the Brady Index. The Brady Index is a centralized repsitry fr ptentially discverable infrmatin (i.e., Brady Infrmatin ) abut law enfrcement witnesses that is already in the pssessin
f the District Attrney s ffice. The Brady Index will act like the hub f a wheel t allw prsecutrs frm any and all divisins and branches t submit and receive discverable infrmatin abut a law enfrcement witness. Will the Index intrude int Peace Officer Persnnel Files? N! The Brady Index is nt abut a deputy district attrney ( DDA ) rummaging thrugh a law enfrcement fficer s persnnel files r changes t the Pitchess discvery prcess (E.C. 1043-1045). It deals with infrmatin already in the pssessin f the District Attrney s Office. The District Attrney will ntify every defendant n every case n the cver page f every set f discvery that law enfrcement persnnel files are nt reviewed by the District Attrney, but rather that Pitchess is the prcess fr such review. Why create the Brady Index? T avid the granting f new trial mtins and reversals n appeal due t discvery r ethics vilatins related t material Brady infrmatin already in the pssessin f the District Attrney s ffice. Discvery rules mandate that trial prsecutrs prvide discverable infrmatin knwn t any member f the District Attrney s Office (nt just what the trial DDA knws). A DDA needs t knw abut it t evaluate it fr discvery. A centralized Brady Index allws the individual DDA t d s in a large ffice. The Brady Index will als prtect an fficer s reputatin and integrity against unfunded allegatins frm witnesses, defense, prsecutrs, and ther fficers that might therwise spread thrugh uncntrlled rumr and baseless speculatin; a situatin which has happened in the past. What are the gals f the Brady Index Prject? It has been determined that there is a need t autmatically alert any particular DDA f the existence f ptentially discverable infrmatin already in the pssessin f the District Attrney s ffice, and t track infrmatin that has already been prvided in discvery by ther DDAs in ther cases. The Brady index is necessary t effectively prtect the entire District Attrney s Office, cunty-wide, frm discvery failures due t cmmunicatin gaps. It is als imprtant t prtect law enfrcement fficers frm inapprpriate disseminatin f harmful r inaccurate rumr, pinin, r speculatin by setting up a screening prcess fr infrmatin befre it ges int the Brady Index. Hw des the Brady Index system wrk? Infrmatin regarding a Brady Index candidate must be submitted t the District Attrney Brady Index Cmmittee. The Cmmittee cnsists f senir DDAs with expertise in trial and discvery bligatins, and the Chief f the District Attrney Bureau f Investigatins. The Cmmittee will screen the infrmatin and cncerns f the submitter, discerning between legitimate ptential Brady discvery and baseless speculatin r misunderstandings. Fllwing a Cmmittee determinatin that the fficer shuld be in the Index, a summary f any material t be kept as ptential Brady discvery will be kept in the District Attrney s Special Operatins Divisin in a secure system. This summary is made available t a trial DDA as the need arises in any particular prspective case. Where determined t be ptentially relevant t a prspective case, the trial DDA will then be allwed access t the relevant Brady infrmatin fr a final determinatin f whether it is smething, pursuant t Brady v. Maryland, that must be prvided t the defense. Des the Brady Index review include a P.C. 832.7 demand fr infrmatin in persnnel files? N. The District Attrney s Office will nt rutinely make a P.C. 832.7 (law enfrcement cnfidential persnnel file) demand fr persnnel infrmatin as part f the Brady Index review f an fficer. Hwever, in the event an fficer is prsecuted fr any criminal ffense, a P.C. 832.7 demand by the District Attrney s Office culd result in persnnel file infrmatin cming int the pssessin f the District Attrney s Office and, as a result, then becming reviewable fr use in bth the criminal prsecutin and the Brady Index review prcess.
Will the fficer and agency get ntice and input as t infrmatin in Brady Index? Yes. Once the Brady Index Cmmittee determines infrmatin shuld be maintained within the Brady Index, ntice will be sent t bth the fficer and fficer s agency that material is t be included in the Brady Index, and that further infrmatin and input frm the fficer and/r agency is welcme. Additinal material r infrmatin received frm the fficer and/r agency will be reviewed by the Cmmittee t determine if the screened material shuld be remved frm the Brady Index r that the additinal submitted material shuld als be included in the Brady Index fr review by DDAs in the future. Will the fficer r agency be ntified if a candidate fficer is NOT put int the Index fllwing Cmmittee review? Only upn written request. Given the sensitive nature f these matters, the District Attrney s Office will nt publicize reviews that result in nn-inclusin in the Index. It is nly when an fficer is placed int the Index that he r she and the fficer s agency is autmatically ntified. Can an fficer r agency submit material t the Index Review Cmmittee befre the review? Yes. The District Attrney s Office will review any additinal infrmatin the agency r the fficer wishes t prvide either befre r after a Brady Index candidate review. Can infrmatin be submitted t the District Attrney fr Brady Index review purpses nly? N. Infrmatin will nt be accepted by the District Attrney s Office under any kind f cnditinal waiver f privilege just fr Index review purpses since nce such infrmatin is in the District Attrney s pssessin, Brady discvery bligatins apply. Hwever, there may be ccasins where infrmatin is prvided t the District Attrney under a statutry privilege (e.g., P.C. 832.7). In such a case, the privilege will be maintained by the District Attrney s Office t the extent the law allws. Brady bligatins, hwever, supersede statutry privilege. This means that the District Attrney can cntinue t prtect as nn-discverable any privileged nn-brady material received, but cannt avid its Brady bligatins even thugh the infrmatin is therwise privileged. If an fficer is in the Index, des it mean the fficer cannt r shuld nt be used as witness? N. The purpse f the Index is t prvide a centralized repsitry f infrmatin that must be reviewed fr ptential discvery when the fficer is a witness. The nature f the infrmatin and rle f fficer in the case will be cnsidered in making issuing and witness-chice decisins, thus allwing the prsecutr t evaluate discvery bligatins, impeachment issues, and ther case impact when the fficer testifies. Will prsecutrs prvide impeachment infrmatin regarding an fficer wh is nt in the Index? Yes. Impeachment infrmatin abut an fficer in the pssessin f the District Attrney s Office is discverable whether r nt the fficer is in the Index (r is still pending review). Will an fficer wh is cleared by an internal investigatin still be in the Index? Yes, at least where the dergatry infrmatin therwise qualifies fr inclusin. Favrable results f an internal law enfrcement investigatin and review are nt determinative f the Brady Index inclusin issue. A favrable finding by an agency s Internal Affairs unit is a cnclusin frm a different prcess, with different legal standards, than the Brady discvery respnsibilities f a prsecutr. Hwever, since the determined facts and cnclusins that result frm an internal investigatin prcess may cntain infrmatin relevant t the Brady Index prcess, the fficer
may wish t prvide infrmatin t the District Attrney under either a statutry privilege (e.g., P.C. 832.7) r a privilege waiver. The P.C. 832.7 privilege can be maintained by the District Attrney t the extent the law allws, remembering that Brady bligatins supersede a statutry privilege. This means that the District Attrney can cntinue t prtect as nn-discverable any privileged nn-brady material received, but will be bligated t make discverable any Brady infrmatin even thugh it is therwise privileged. An fficer may als chse t waive his r her privileges and submit t the District Attrney the cmplete internal investigatin file. Since many believe an internal investigatin/persnnel matter privilege is held by bth the fficer and the agency, the agency and fficer shuld discuss the need r impact f jintly waiving the privilege t avid any cnflict with each ther. Is it pssible fr an fficer t be remved frm the Index? Yes. In the event additinal infrmatin frm the fficer r ther surces reviewed by the District Attrney results in a determinatin by the District Attrney that the riginal basis f Index inclusin (discverability) n lnger applies, the fficer may be remved frm the Index. Hw lng des an fficer remain in the Index? Brady discvery bligatins have n set washut perid in terms f years. Discvery bligatins are based upn the materiality f the infrmatin that is cntained in the Index, as well as the cncerned fficer s degree f invlvement and his r her need t be used as a witness in the particular case at issue. Materiality, therefre, must necessarily be determined n a case-bycase basis. Cnclusin: These rules, prcedures and plicies are intended t be a quick-reference guide, and shuld nt be used t reslve issues n any specific case invlving a Brady Index candidate r criminal prsecutin. Discvery is determined n a case-by-case individualized basis, guided by statutry bligatins and ever-evlving case-law. It is als recgnized, hwever, that law enfrcement fficers are entitled t be aware f the fact f, and the extent f, the cllectin and retentin f ptentially adverse infrmatin that may, in future criminal prsecutins, be prvided t defense cunsel. The Brady Index prcedure is t remain an pen, cperative effrt, thus encuraging trust between agencies while meeting the cnstitutinal bligatins f the law enfrcement team t d justice. Officers and deputies are encuraged t recgnize the necessity f these prcedures, as dictated by the United States Supreme Curt, in the jint endeavr between swrn law enfrcement fficers and prsecutrs t seek justice and ensure the cnvictin and punishment f the guilty. Law enfrcement fficers wrking with prsecutrs, and prsecutrs wrking with law enfrcement fficers, will help t achieve this result. R.C. Phillips