It’s a controversial subject, but we live in a harsh world. Some police officers lie. Some have a documented history of misconduct, including lying or other acts that call their truthfulness into question. If they do, this history should be available to the defense so that the officer’s credibility can be tested in court.
In its 1963 ruling in Brady v. Maryland, the U.S. Supreme Court ruled that prosecutors have an affirmative duty to disclose to the defense any evidence that tends to show the defendant is innocent or that calls into question the reliability of the state’s evidence. That means that prosecutors are required to tell the defense when their case relies on the testimony of a police officer with a history of lying.
In fact, all prosecutors are expected to keep so-called “Brady” lists of officers who have been found untrustworthy in the past. But according to an investigation by USA TODAY, almost half of county prosecutors offices across the country do not maintain Brady lists.
How serious is this problem?
The scope is hard to gauge, but we know that people have been exonerated after evidence revealed that officers lied in their cases or that prosecutors failed to turn over the evidence required by Brady v. Maryland.
The National Registry of Exonerations reports that exonerations based on official misconduct doubled between 2008 and 2018. That includes false testimony by police and violations of Brady by prosecutors.
Reporters from USA TODAY called dozens of prosecutors’ offices about their Brady lists. A couple of offices acknowledged that they should maintain a Brady list and promised to begin doing so. Some insisted they don’t need Brady lists in order to comply with the requirements of Brady.
Some were far more concerned about the potential harm to officers’ reputations than about the possibility that an innocent person might be convicted based on an officer’s false testimony.
In California, for example, the Los Angeles County Sheriff’s deputy union sued when the state began requiring prosecutors to turn over the names of officers with a history of lying or other misconduct. In August, the state supreme court ruled against the deputies.
In some counties, such as Miami-Dade, internal trainings obtained by USA TODAY actually give instructions on how prosecutors can avoid disclosing officers’ histories of misconduct.
Perhaps the most troubling thing the reporters found was that, in many jurisdictions, officers with histories of lying or other misconduct are continuing to be called to testify with no assurance the defense has been notified.
When a tainted officer testifies, we run a very real risk that an innocent person will be sent to prison.
