The Discovery Process and Personnel File Information

By Schott, Richard G. | The FBI Law Enforcement Bulletin, November 2003 | Go to article overview

The Discovery Process and Personnel File Information


Schott, Richard G., The FBI Law Enforcement Bulletin


Law enforcement agencies go to great lengths to ensure that they hire individuals of good character and with backgrounds containing no, or minimal, negative information. In this regard, police employers are no different from other employers: they hope to hire people who will present the fewest personnel issues with which to deal. However, law enforcement employers have another important reason to screen potential hires, and to ensure that their employees conduct themselves in a manner consistent with their positions of trust. A single lie can taint an officer's credibility forever and render the officer virtually useless as a courtroom witness. An example is the recent release of several convicted defendants in a sweeping drug investigation in Tulia, Texas. Texas Judge Ron Chapman concluded that the investigator involved in the case had "falsified reports, misrepresented the nature and extent of his investigative work, and misidentified various defendants during his investigation." (1) As a result, all 38 convictions in the case likely will be vacated. It is hard to imagine the officer involved ever testifying as a prosecution witness again after this finding.

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The reason officers with credibility problems lose their viability as witnesses is based on the constitutional principle that every criminal defendant in this country is entitled to a fair trial. (2) The notion of due process, or fundamental fairness, is a basic right guaranteed by the Fifth and Fourteenth Amendments of the Constitution. (3) This article examines how the due process clause impacts the judicial discovery process and adversely affects police officers with credibility problems.

The Discovery Process in General

The goal of the American criminal justice system is to allow the truth to prevail. One way that courts endeavor to find the truth is through pretrial discovery. During discovery, the prosecution and defense disclose to each other certain evidence they intend to use at trial. With such disclosure, the parties can prepare in advance to test that evidence through cross-examination or expert testimony, ensuring that the judge or jury hears all sides of the case before they decide guilt or innocence. Avoiding trial by surprise is a surer route to the truth.

Although "there is no general constitutional right to discovery in a criminal case," (4) criminal procedure rules dictate the type of information that must be shared by the adversaries in any criminal proceeding. For example, Rule 16 of the Federal Rules of Criminal Procedure outlines what material the government shall provide to the defense and, likewise, what material the defense shall provide to the government. (5) However, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence (6) are silent regarding information relating to the credibility of witnesses, including law enforcement witnesses. This is where the notion of "fundamental fairness," or due process, (7) comes into play.

From Napue to Brady

In 1959, the U.S. Supreme Court decided the case of Napue v. Illinois. (8) In the case, a witness falsely testified at trial that he had received no consideration in return for his testimony. In fact, he had received consideration from the state, but the prosecutor did nothing at trial to correct the falsehood. Napue was convicted of murder, but appealed his conviction when he discovered the false testimony. Not surprisingly, the Supreme Court decided that the government's use false evidence at trial of violated the due process clause of the Fourteenth Amendment. It did not matter to the Court that the falsehood related only to the credibility of the government's witness. The Court emphasized that the "truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. …

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