Cops lie. Cops lie enough there’s a term for it: testilying. Honest prosecutors don’t want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. “Brady lists” are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don’t want to have to rely on their… shall we say… misstatements in court.
Unfortunately, these lists are often closely-guarded secrets. Judges aren’t made aware of officers’ penchant for lying. Neither are defendants in many cases. But they’re called “Brady” lists because they’re supposed to be disclosed to defendants. The “Brady” refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.
The Massachusetts Supreme Judicial Court has ruled (PDF) prosecutors have an obligation to inform defendants of officers who have made their “Brady” lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)
The cops argued there’s no constitutional duty to disclose this information (under the US Constitution or the Commonwealth’s) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.
First, prosecutors have more than a constitutional duty to disclose exculpatory information; they also have a broad duty under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose “(a)ny facts of an exculpatory nature.” This duty is not limited to information so important that its disclosure would create a reasonable doubt that otherwise would not exist; it includes all information that would “tend to” indicate that the defendant might not be guilty or “tend to” show that a lesser conviction or sentence would be appropriate.
Second, even if prosecutors had only their constitutional obligation to disclose, and not the broad duty under our rules, we would not want prosecutors to withhold exculpatory information if they thought they could do so without crossing the line into a violation of the defendant’s right to a fair trial.
The acceptable standard under the Constitution is not “see what you can get away with.” This is an obligation, not a nicety to be deployed at the prosecutor’s discretion.
A prosecutor should not attempt to determine how much exculpatory information can be withheld without violating a defendant’s right to a fair trial. Rather, once the information is determined to be exculpatory, it should be disclosed — period. And where a prosecutor is uncertain whether information is exculpatory, the prosecutor should err on the side of caution and disclose it.
In this case, the information was definitely of the possibly exculpatory variety. Lying cops who’ve admitted before a grand jury they falsified reports should definitely be considered impeachable witnesses. Whether or not the information is determined admissible at trial is beside the point.
(T)he ultimate admissibility of the information is not determinative of the prosecutor’s Brady obligation to disclose it. Where the information, as here, demonstrates that a potential police witness lied to conceal a fellow officer’s unlawful use of excessive force or lied about a defendant’s conduct and thereby allowed a false or inflated criminal charge to be prosecuted, disclosing such information may cause defense counsel, or his or her investigator, to probe more deeply into the prior statements and conduct of the officer to determine whether the officer might again have lied to conceal the misconduct of a fellow police officer or to fabricate or exaggerate the criminal conduct of the accused.
The cops also argued their immunity from prosecution during their grand jury testimony should shield them from any adverse consequences. Wrong again, says the court. The immunity only covers prosecution for the admitted crimes. It is not a shield against reputational damage that may result from this information being made public or handed over to defendants.
An immunized witness, like others who are not immunized, may prefer that the testimony not be disseminated by the prosecutor, especially if it would reveal the witness’s dirty deeds, but that preference does not affect whether the information is exculpatory or whether it should be furnished to other defendants. Once disclosed, the immunized testimony may be used to impeach the immunized witness, provided that the testimony is not being used against the witness in a criminal or civil prosecution other than for perjury. In sum, a prosecutor’s obligation to disclose exculpatory information is the same for immunized testimony as for all other testimony. There is no higher Brady standard applied for a prosecutor to disclose immunized testimony.
The Court wraps this up by laying down the law: this is Brady info and it needs to be disclosed to defendants. The SJC is not fucking around.
(W)e conclude, as did the district attorney, that the prosecutors here have a Brady obligation to disclose the exculpatory information at issue to unrelated criminal defendants in cases where a petitioner is a potential witness or prepared a report in the criminal investigation. That obligation remains even though that information was obtained in grand jury testimony compelled by an immunity order. And the district attorney may fulfill that obligation without prior judicial approval; a judge’s order is needed only for issuance of a protective order limiting the dissemination of grand jury information.
More broadly, we conclude that where a prosecutor determines from information in his or her possession that a police officer lied to conceal the unlawful use of excessive force, whether by him or herself or another officer, or lied about a defendant’s conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the prosecutor’s obligation to disclose exculpatory information requires that the information be disclosed to defense counsel in any criminal case where the officer is a potential witness or prepared a report in the criminal investigation.
That’s the standard in Massachusetts. And bad cops are on notice there’s pretty much nothing they can do to escape the consequences of their own actions. This is as it should be. Now, if the courts could just make sure prosecutors and police departments are actually compiling Brady lists, we’d be set. At least in this Commonwealth.
Top Court In Massachusetts Says Prosecutors Must Provide Info On Bad Cops To Criminal Defendants
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