Academic journal article Texas Journal on Civil Liberties & Civil Rights

Fulfilling the Promise of Brady: The Need for Open Files and Complete Disclosure between the Prosecution and the Police

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Fulfilling the Promise of Brady: The Need for Open Files and Complete Disclosure between the Prosecution and the Police

Article excerpt

I. Introduction..........188

II. Brady Imposes a Duty to Disclose Exculpatory and Impeachment Material on the Entire Prosecution Team...........189

III. Why Might Police Officers Violate Their Duty Under Brady?...........191

IV. Remedies in Criminal Court Do Not Incentivize Police Disclosure Under Brady...........192

V. Civil Litigation Does Not Incentivize Police Disclosure Under Brady...........196

VI. An Open File Should be Required Between the Police and the Prosecution...........200

A. Open File is the Best Practice...........200

B. Personnel Files Should Not be Treated Differently Than Other Brady Evidence...........205

C. Police Chiefs Can Encourage Disclosure and Help Avoid Tunnel Vision...........207

VII. Conclusion.209

I. Introduction

Jurisprudence on Brady v. Maryland and its applicability to police action leaves criminal defendants with little chance of success in civil court and without meaningful remedies in criminal court. This jurisprudence does not encourage police agencies to be thorough with their Brady compliance. Therefore, new approaches must be taken to ensure Brady compliance by law enforcement. This paper will argue that the best approach to ensuring Brady compliance is an open file policy between the police and the prosecution, including police personnel records. Further, this paper recognizes that a change in police culture may be necessary to ensure full compliance, and that police chiefs may be best situated to create this change.

Imagine a criminal defendant who maintains his innocence to his attorney, to the police, to the prosecutor, and to the court. His attorney investigates the matter and is unable to expose any exculpatory evidence. He requests that the prosecutor turn over any such evidence in the state's file, and the prosecutor does so. This evidence includes police reports, witness statements, photographs, and DNA tests. The one thing that is not turned over, that the attorney believes exists, is the police officer's dash cam video. The defense attorney makes another request, specifically asking for the dash cam, and the prosecutor realizes it is not in the file. The prosecutor asks the police to turn it over and then realizes that it does not exist. The officer failed to turn the dash cam video over in time, and it has been erased.

The video is the only real evidence of what happened during the stop. It contains what the officer and the defendant said to each other, how they behaved, and when the stop happened. It could give rise to Fourth or Fifth Amendment suppression issues. It could support a much more viable defense than the attorney currently believes can be proven. Without the video, all of this is unavailable to the defendant, and the potential harm is immense.

Seemingly, the prosecutor complied with the duties on the state for the purposes of Brady v. Maryland, and yet, a piece of exculpatory evidence has gone missing. This paper will first establish that the police's failure to mm over the video was still a violation under Brady v. Maryland. It will then assert that Brady violations occur as a result of both intentional and negligent acts by the police. Next, it will analyze what remedies are available to criminal defendants who find themselves in this situation and establish that these remedies are inadequate for ensuring police compliance. Finally, it will call for an open file policy between police and prosecutors, and analyze and recommend approaches for this policy's implementation.

II. Brady Imposes a Duty to Disclose Exculpatory and Impeachment Material on the Entire Prosecution Team

In 1963, the Supreme Court decided Brady v. Maryland, holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. …

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