MODEL BRADY POLICY This Policy sets forth the prosecuting authority s disclosure requirements regarding witnesses and is intended to assure compliance with the law, to protect witnesses and defendants rights, to prosecute criminals effectively and efficiently, and to allow for effective law enforcement investigation. This policy will focus on the Brady Rule. This policy is dependant on law enforcement establishing a separate Brady policy/procedure applicable to their organization. I. THE BRADY RULE The prosecution must disclose to the defense evidence that is favorable to a defendant which is either exculpatory or impeachment and is material to guilt or punishment. 1. Materiality. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. 2. Exculpatory Evidence. Evidence is exculpatory if it tends to negate the defendant s responsibility for the charged crime and is material to guilt or punishment. Exculpatory evidence must be disclosed. 3. Impeachment Evidence. Impeachment evidence is governed by Evidence Rules 607, 608(b), 609 and 613, as well as state case law. Impeachment evidence is evidence that demonstrates that a witness is biased or prejudiced against a party, has some other motive to fabricate testimony, has a poor reputation for truthfulness or has past specific incidents that are probative of the witness truthfulness or untruthfulness. Prior inconsistent statements are impeachment evidence. Impeachment evidence that is favorable to the defendant and material to guilt or punishment must be disclosed, unless it is cumulative or impeaches on a collateral issue. Brady is violated if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. 4. Evidence harmful to prosecution. Favorable evidence is evidence that either helps the defense or hurts the prosecution, therefore evidence harmful to the prosecution must be disclosed under Brady. III. CATEGORIES OF POSSIBLE LAW ENFORCEMENT RELATED BRADY MATERIAL. 1. Substantiated findings reflective of officer s honesty or truthfulness. 2. Conviction involving dishonesty or untruthfulness. 3. Information regarding ongoing investigation of allegation of officer s dishonesty or untruthfulness, (related or unrelated to criminal prosecution case). 1
4. Information regarding a resignation, demotion or other action in-lieu of a negative agency finding or action. 5. Unsubstantiated findings regarding accusations of officer dishonesty or untruthfulness. 6. Information regarding officer s use of force and history of use of force when use of force is pertinent to ongoing criminal prosecution. IV. PROSECUTOR'S DUTIES A. Generally. Prosecutors must disclose to the defense evidence that is favorable to a defendant which is either exculpatory or impeachment and is material to guilt or punishment. B. Identify and Disclose Brady Evidence Under Prosecutor s Knowledge or Control. Brady information within the knowledge, control or possession of the prosecutor, deputy prosecutor, prosecutor s staff, or law enforcement who is working on behalf of the prosecution must be disclosed. Prosecution is not required to search court, incarceration, or other files possessed by a separate office or agency. Evidence held by law enforcement that is favorable to a defendant which is either exculpatory or impeachment and is material to guilt or punishment must be disclosed to the defense; The prosecution must request and/or turn over to the defense such information pursuant to section V. below. C. Preserve Evidence. Prosecutors must preserve Brady evidence. Evidence that is only potentially useful, (not material), should be preserved. Prosecutors aware of potentially useful evidence in the possession or control of law enforcement, investigators or any other entity acting on the State s behalf in the investigation or prosecution of a case, should request that the potentially useful evidence be preserved. D. Err on the Side of Disclosure. The United States Supreme Court has urged the careful prosecutor to err on the side of disclosure of possible Brady information. E. Protect Witness Right to Privacy. Pursuant to RCW 42.56.230(2), personal information in files maintained for employees, appointees, or elected officials of any public agency is exempt from public inspection and copying under the Washington State Public Records Act to the extent that disclosure would violate their right to privacy. Law enforcement and other government employees that act on behalf the prosecution have personal information in employee files. Law enforcement agencies are the custodian of law enforcement personnel files. Some information in an employee s files, if disclosed, may violate that employee s right to privacy. Prosecutors shall request disclosure of and disclose Brady information contained in law enforcement personnel records pursuant to section V. below. 2
F. Protect Law Enforcement Investigations. Pursuant to RCW 42.56.540, specific investigative records compiled by law enforcement agencies are exempt if nondisclosure is essential to effective law enforcement. Some investigation information about a law enforcement officer or a witness, if disclosed, may jeopardize an investigation. Prosecutors shall request disclosure of and disclose Brady information contained in investigative records pursuant to section V. below. V. BRADY PROCEDURE REGARDING LAW ENFORCEMENT WITNESSES A. Potential Brady Information Request. Immediately upon filing of criminal charges or the receipt of a law enforcement agency incident report the prosecuting attorney s office shall review its files for Brady information regarding all potential law enforcement witnesses involved in the case and disclose the same. If information is found that was disclosed pursuant to Brady, the prosecutor shall determine if disclosure is still required pursuant Brady. If a potential law enforcement witness is from an agency other than that of the prosecution s, the prosecution shall complete the REQUEST THAT LAW ENFORCEMENT CONDUCT A REVIEW OF ITS FILES FOR POSSIBLE BRADY DOCUMENTS, (form attached hereto as Exhibit A ) and send the completed form(s) to the appropriate agency(ies). The prosecutor shall ensure that the date by which the agency must return the form provides sufficient time for the court to evaluate the possible Brady material. B. Response to Brady Notification. 1. Substantiated Finding or Conviction. Upon notice that there exists Brady material that the prosecution has not previously been made aware of, the prosecution shall review the notice received from law enforcement and shall disclose the same to the defense if required by law or, at the sole discretion of the prosecution, request an in camera review pursuant to section V. below. 2. Unsubstantiated Finding or In Lieu of Action. Upon notice that there exists potential Brady material that the prosecution has not previously been made aware of, the prosecution shall confer with the law enforcement agency to determine if a Brady disclosure needs to be submitted to prosecution for disclosure consideration or submitted to the Court via the in camera review pursuant to section V. below. 3. Current or Ongoing Investigation. Upon notice that there is an ongoing investigation into an officer s actions in a current criminal case, the prosecution may confer with the law enforcement agency to determine if a Brady disclosure needs to be submitted to prosecution for disclosure consideration or submitted to the Court for an in camera review pursuant to section V. below. 4. Use of Force. Upon notice that there a law enforcement officer witness use of force history or a current or ongoing use of force investigation, the prosecution shall review any use of force history information submitted by the law enforcement agency for disclosure as required 3
by law or, in the prosecutions sole discretion, may submit the use of force history to the Court for an in camera review pursuant to section V. below. C. Disclosure of Brady Information. Nothing in this policy prohibits the prosecution from disclosing any information about an officer that the prosecution, in its sole discretion, determines must be disclosed pursuant to Brady, CrR 4.7(a)(3) or CrRLJ 4.7(a)(3). D. In Camera Review of Potential Brady Information. Upon receipt or knowledge of possible Brady material that the prosecution has determined should be reviewed by the court for a disclosure determination, the prosecution shall request a hearing for an in camera review by the court to determine if the information is Brady material and must be disclosed to the prosecution and/or defense. The prosecution shall subpoena the appropriate law enforcement personnel to deliver the possible Brady notification or information to the hearing. If the prosecution has the subject information in its possession, the information will be filed under seal. The prosecution shall send a copy of the notice of hearing to the officer who is the subject of the possible Brady information. The notice will provide sufficient time for the law enforcement agency and subject officer(s) to respond to the potential disclosure or review, but shall be no shorter than five business days prior to the scheduled hearing. If the court rules that all or some of the information is not subject to disclosure, should not be turned over the prosecution and/or defense, or is not admissible at any proceeding in the case, the prosecution shall request that the information or the portion not subject to disclosure be returned to the law enforcement agency or be sealed in the court records. A copy of the court s order(s) regarding the information shall be forwarded to the law enforcement agency. If the court determines that some or all of the information should be turned over to the prosecution and/or the defense, or is Brady information, the prosecution shall maintain a copy of the said information in its files, along with the disclosure order. Prior court rulings regarding information shall guide the prosecution in further disclosure determinations. Law enforcement agencies investigation and response, if any and if known to the prosecution, and the similarity and difference in the allegations, facts and criminal charges and those before the disclosing court shall be considered. Most likely, if information was ruled discloseable pursuant to Brady in a prior proceeding, the information will be disclosed pursuant to Brady in subsequent cases. If there is sufficient doubt as to whether the information should be disclosed again, as determined solely by the prosecution, the prosecution shall submit the previously disclosed information to a court and request an in camera review and follow the procedures above. E. Continuing Obligation to Disclose. Despite previously disclosed Brady information, the prosecution is under a continuing duty to disclose Brady information and must submit a request for a search for Brady information with each criminal prosecution. 4
PROSECUTING ATTORNEY REQUEST FOR LAW ENFORCEMENT REVIEW OF FILES FOR POSSIBLE BRADY DOCUMENTS The Office of the County Prosecuting Attorney has determined that the following employees of your department may be material witnesses in: State v. Case # Therefore, it is requested that you review any files in your agency in order to locate any possible Brady documents for: Please review your files pursuant to your Brady procedure. We are NOT seeking allegations of misconduct that are without merit, unfounded, false or unsubstantiated. We ARE, in addition to substantiated, with merit, or founded allegations, or allegations that result in discipline of any kind, seeking allegations that are currently under investigation or resulted in an action in lieu of another administrative action. If no Brady information is located for any of the above-listed employees, please so indicate on this form and return it to: Prosecutor/Deputy Prosecutor at on or before If Brady information does exist for any of the above-listed employees, please identify the name and employment status of any such employee on this form and return it as indicated above, along with the Brady notification. If there is an ongoing investigation and/or any in lieu of action has been taken regarding any of the above-listed employees, please identify the name and employment status of any such employee on this form and return it as indicated above. ONLY INDICATE THE ABOVE REQUESTED INFORMATION & BRADY NOTIFICATION IF APPLICABLE. DO NOT RETURN OR DISCLOSE ANY UNDERLYING DOCUMENTS. Upon return of the completed form, the Prosecuting Attorney s Office will: 1) disclose the Brady notice to the defense; 2) contact your agency to determine whether there is possible Brady information that needs to be disclosed to the prosecution for review and possible disclosure to the defense; or 3) request that your agency submit possible Brady information to court for review in camera by the court in order to decide whether to release any possible Brady documents to both the prosecution and defense. The obligation to provide Brady documents is ongoing. If your department receives any new Brady information regarding your above-listed employees, notify the above named Prosecutor/Deputy Prosecutor. Date Prosecutor/Deputy Prosecutor 5
TO BE COMPLETED BY LAW ENFORCEMENT AGENCY: Brady information exists and the Brady notice is attached hereto for the following employees: No documents reasonably foreseen as constituting Brady exist for any the abovenamed employees or, none exists for the following employees: Brady notice or documents have previously been provided to the Court for review, (attached is the court s order regarding disclosure) regarding the following employee(s): Possible Brady (or new/additional Brady) documents exist for the following employees: Date Name Print Signature Contact telephone number 6
SAMPLE BRADY NOTIFICATION ABC County Sheriff s Deputy Joe Smith was disciplined by the ABC County Sheriff s Office on November 22, 1996 for lack of candor. No charges were filed after the incident was reviewed by the XYZ County Prosecuting Attorney s Office. 7