Julie A. Risher
Public Safety Attorney
Winston-Salem Police Department
Mark H. Newbold
Deputy City Attorney - Police
Charlotte-Mecklenburg Police Department
to the Legal Officers Section
109th IACP Conference
October 5 - 9, 2002
I. Brady impeachment material
A. Background: What is the constitutional obligation to disclose?
As a refresher, a Brady claim arises in three contexts:
1. Where previously undisclosed evidence shows that the prosecution introduced testimony it knew or should have known was perjured;
1. Where the defendant asked for specific exculpatory evidence but the government did not provide it; and
2. Where the government failed to reveal exculpatory evidence, even though the defendant did not request it.
Note: Brady does NOT require an “open file” policy.
1. Brady v. Maryland, 373 U.S. 83 (1963). (Government has a duty to disclose material exculpatory evidence; failure to do so violates due process.)
Facts: Both Brady and his co-defendant were found guilty of first-degree murder and sentenced to death. After trial, the prosecutor disclosed to Brady that the co-defendant admitted to the homicide.
Held: The prosecutor’s suppression of the confession violated the due process clause of the 14th Amendment.
Rule: The prosecutor must disclose to the defendant all material evidence that is exculpatory.
What is material? Anything that has a bearing on guilt or innocence or on sentencing. This disclosure is required irrespective of the good or bad faith of the prosecutor. (Note: Refined in U.S. v. Bagley.)
1. United States v. Giglio, 405 U.S. 150 (1972) (Brady rule includes evidence that could be used to impeach a witness.)
Facts: Defendant was convicted of forging money orders. While the appeal was pending, defendant discovered new evidence that government failed to disclose. The government’s key witness was given a promise not to be prosecuted in return for his testimony. The key witness was the defendant’s alleged coconspirator and the only witness linking the defendant to the crime.
During trial, the defense vigorously cross-examined the witness about any promises of leniency. The witness denied that he was given any promises of leniency or promises not to be prosecuted. The prosecutor who had presented the case to the grand jury had given the witness a promise of immunity. He signed an affidavit stating that he did not prosecute the witness because he had given the witness immunity. However, the prosecutor trying the case signed an affidavit stating that the witness had not been prosecuted for different reasons.
Rule: When the reliability of a given witness may determine guilt or innocence, the prosecutor must disclose evidence affecting the credibility of that witness.
Held: The promise not to prosecute was material to the reliability of the government’s key witness. Note: The government’s case depended almost entirely on the witness’s testimony. Therefore, his credibility was important and the jury was entitled to the information. Disclosure is the responsibility of the prosecution regardless.
3. U.S. v. Bagley, 473 U.S. 667 (1985) (No legal distinction between exculpatory evidence and impeachment evidence for purposes of Brady rule). Bagley, in a nutshell, held that:
a. Favorable evidence is material if there is a reasonable probability that the result would have been different had the defense known of the evidence.
b. The defendant must show that the favorable evidence could reasonably so modify the case as to undermine confidence in the verdict.
c. The “harmless error” standard does not apply; the issue is whether the evidence is material.
d. The obligation to disclose must be based on the cumulative effect all of the undisclosed evidence as would have on the defendant, not as applied item by item.
e. 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. A reasonable probability is one sufficient to undermine confidence in the result.
4. Kyles v. Whitley, 514 U.S. 419 (1995) (Knowledge imputed to the prosecution includes knowledge police may have).
The petitioner must convince this Court that there is a reasonable probability that his conviction or sentence would have been different.... The adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the suppressed evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. at 434 (emphasis added).
5. Strickler v. Green, 527 U.S. 263 (1999)
a. The three essential components of a Brady claim are:
a. The evidence must be favorable to the defendant because it is exculpatory or impeaching;
b. The state has willfully or inadvertently suppressed the evidence; and
c. Prejudice resulted.
b. The defendant established the first and second elements, but because in light of other evidence in the record, the court concluded that even with the impeaching evidence disclosed, the evidence could not reasonably be taken to put the whole case in so different a light as to “undermine confidence in the verdict.”
c. The standard is not whether the impeachment evidence might have changed the trial’s outcome; nor is it a sufficiency of the evidence standard.
B. Impeachment Evidence as Exculpatory Evidence (Giglio material - recent cases)
1. U.S. v. Bowie, 198 F.3d 905 (D.C. Cir. 1999) (Where impeachment evidence is wrongly withheld, the defendant must prove that there was a reasonable probability that the jury would have acquitted him had the evidence been disclosed).
Facts: An officer testified as a witness in defendant’s case, and the same officer was under investigation for perjury in a prior case. The prosecutor sent a letter to the defendant after the jury returned a guilty verdict. The U.S. Attorney for the District of Columbia maintains an electronic list of officers under investigation (called the “Lewis list”). The prosecutor had checked the list before the trial , but the officer’s name was not on it. The officer’s name did not appear on it until the prosecutor checked 3 days after trial.
Even though the transcript at issue would not have been admissible, inadmissibility alone is not enough to determine that the evidence is not Brady material. However, there was no reasonable probability that the jury would have acquitted the defendant because the officer’s testimony was bolstered by another officer’s testimony.
2. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002) (Where detectives’ alleged impropriety is in admissible because it only rises to the level of “the possibility that the officers had engaged in bad acts,” such evidence is not material for purposes of Brady disclosure).
Facts: Defendant was charged with burglary and murder. The testimony of two detectives who investigated the burglary was crucial. At the time of the investigation of defendant’s crime, the detectives were the subject of a RICO investigation and they were allegedly stealing cocaine during fake investigations, selling it, and using it. Claims that the detectives were motivated by a desire to curry favor with the prosecutor; therefore their credibility was possibly undermined. However, the detectives’ criminal conduct was completely unrelated to defendant’s crime. Further, the detectives had not even been indicted at the time of defendant’s trial. With respect to suppression prong of Brady test, the prosecution term is generally considered a unitary entity, so that favorable information possessed by police but unknown to prosecutor is nonetheless subject to the test.
3. Fullwood v. Lee, 290 F.3d 663 (4th Cir. 2002).
Detective's failure to pass along to the prosecution the substance of his private conversation with defendant did not absolve the state of its Brady disclosure obligations, which extended to evidence that was known only to police investigators and not prosecutors.
4. Moon v. Head, 285 F.3d 1301 (11th Cir. 2002).
A Tennessee investigator who testified on behalf of the prosecution during the sentencing phase of capital murder case was not part of a Georgia prosecutor's team because there was no evidence that Tennessee law enforcement officers and Georgia prosecutors had engaged in joint investigation of this homicide, and agencies of two states did not share resources or labor. Consequently, Brady material in investigator’s hands did not have to be disclosed to the defendant.
5. U.S. v. Morris, 80 F.3d 1151 (7th Cir. 1996).
The government did not suppress allegedly material exculpatory information which was in hands of other governmental agencies where the government was unaware of existence of that information and the other agencies were not part of the team that investigated case or participated in its prosecution. Prosecutor’s office does not have a duty to learn of information possessed by other government agencies that have no involvement in investigation or prosecution of the case.
6. Mastracchio v. Vose, 274 F.3d 590 (1st Cir. 2001).
City police officers served as the witness protection team for the key witness against the defendant. Members of the attorney general’s department or of the witness protection team delivered $20,000 in cash to the witness during his six-month custodial confinement prior to trial. The witness testified at trial that he had received no cash while in confinement. Knowledge of the fact that the testimony was false was imputed to the prosecutor, even though the city police officers never told him that the witness was lying.
7. Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001).
A prosecutor is responsible for learning of and disclosing all exculpatory evidence
known to the police.
8. U.S. v. Stott, 245 F.3d 890 (7th Cir. 2001).
The Brady duty to disclose applies to evidence known to police investigators even if it is unknown to the prosecutor.
9. Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000), cert. denied, 122 S.Ct.580 (2001).
Brady does not require bad faith on the part of the prosecution for a violation of due process, and the rule encompasses evidence known only to police investigators and not to the prosecutor; thus, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.
10. Smith v. Holtz, 210 F.3d 186 (3rd Cir. 2000).
The duty of disclosure under Brady v. Maryland is not limited to evidence the prosecutor is aware of; rather, it includes evidence known only to police investigators and not to the prosecutor.
11. Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (on remand) (equally divided court)
Although this is a Section 1983 case involving disclosure of information impeaching key witness testimony, the case illustrates several points:
1) For purposes of due process rights, all knowledge is imputed to the prosecutor, so who fails to disclose (prosecutor or officer) is immaterial.
2) For purposes of 1983 liability for failure to disclose, prosecutors enjoy absolute immunity in this area while officers enjoy only qualified immunity. The heightened potential exposure for officers is obvious.
12. Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002).
The duty to disclose Brady material extends to information in the possession of the law enforcement agency investigating the offense. Under Brady, the state failed its duty of disclosure by failing to weigh evidence so that exculpatory evidence could be provided to defense in aggravated murder case, where police removed exculpatory evidence from information given to prosecution, such that prosecutor was intentionally kept in dark regarding exculpatory evidence.
13. Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999).
Within context of a defendant’s request for material favorable information under Brady, prosecutors have an affirmative duty to disclose such evidence and a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. The state’s duty to disclose evidence and learn of favorable evidence known to others acting on its behalf arises when the cumulative effect of all such evidence suppressed by the government raises a reasonable probability that its disclosure would have produced a different result. In determining whether a reasonable probability exists, courts must focus on whether the lack of evidence impaired the defendant’s ability to receive a fair trial or cast doubt upon the verdict. A “reasonable probability,” for this purpose, is shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial.
C. Other Issues
1. In camera review
U.S. v. Dent, 149 F.3d 179 (3rd Cir. 1998) (vacated and remanded on other grounds).
Sergeant Cassidy was pursuing a drug dealer. The drug dealer ran into a house where defendant Dent was seated at a table cluttered with cocaine base and drug paraphernalia. Allegedly Cassidy had previously committed misconduct in a drug investigation and cases were dismissed. The district court conducted an in-camera review of the files. Concluding they contained neither exculpatory evidence or impeachment material, the court properly granted the state’s motion to quash the subpoena.
2. Brady is inapplicable to pleas
US v. Ruiz, 122 S. Ct. 2450 (2002).
Held: The due process guarantees of the Constitution do not require the government to disclose impeachment information prior to entering a plea agreement with a criminal defendant.
3. Brady doesn’t apply to a 4th amendment issue
Taylor vs. Waters, 81 F.3d 429 (4th Cir. 1996).
Arrestee could not allege a due process claim based on the investigator’s alleged failure to disclose exculpatory information to the prosecutor.
II. Dickerson: Civil liability for failure to advise suspects of Miranda rights
A) 42 U.S.C. § 1983
1) Permits an individual whose federal Constitutional or statutory rights have been violated by a public official acting under color of law to sue the official for damages.
2) Public officials are afforded protection from “undue interference with their duties and from potentially disabling threats of liability.”
3) Qualified immunity protects public officials from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
4) Only conduct that an official could not reasonably believed was legal under settled law falls outside the protective sanctuary of qualified immunity.
i) Hunter v. Bryant, 502 U.S. 224 (1991)(per curium).
B) Dickerson v. United States, 530 U.S. 428 (2000).
a) Petitioner was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence. Before trial, petitioner moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received "Miranda warnings" before being interrogated
b) The district court granted his motion to suppress.
c) The Fourth Circuit Court of Appeals reversed the suppression order. The Fourth Circuit held that 18 U.S.C. § 3501 permits the admissibility of statements made without Miranda warnings as long as the statements were made voluntarily. The Fourth Circuit then concluded that because Miranda was not a constitutional decision, the enactment of § 3501 by Congress effectively overruled the dictates of Miranda.
d) The Supreme Court reversed, holding that Miranda was a constitutional decision and could not be overturned by Congress.
a) The Supreme Court reviewed the history of the exclusionary rule and the impact of Miranda. The Court concluded that Miranda was a constitutional decision and refused to overrule the decision based on principles of stare decisis.
C) Application of Dickerson to § 1983 actions based on failure to advise
1) Reser v. Las Vegas Metropolitan Police Dept., 242 F.3d 383 (9th Cir. 2000) (unpublished opinion).
a) Plaintiff in a §1983 action asserted that a police officer should have adjusted his interrogation strategy to account for the plaintiff’s mental capacity.
b) 9th Circuit held that at the time the interrogation took place, Miranda warnings had not been clearly established as a constitutionally required right and therefore there was no § 1983 cause of action.
c) Court further held that a technical violation of Miranda’s provisions would not support a § 1983 action.
d) Case is of limited utility, as Dickerson was not yet decided at the time of Reser’s custodial interrogation.
2) Williams v. Weaver, 2000 U.S. Dist. Lexis 18076, 2000 WL 1844684 (S.D. Ala. 2000).
a) Plaintiff asserted a § 1983 action based on a failure to advise of Miranda rights.
b) Court held that within the 11th Circuit, “it is clear B that the failure ‘to follow Miranda procedures triggers the prophylactic protection of the exclusion of evidence but does not violate any substantive Fifth Amendment right that a cause of action for money damages under § 1983 is created.’” (citing Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999)).
c) Court referred to the Dickerson decision, stating that it “had no application in a § 1983 case”.
3) Fortier v. Valerino, 2001 U.S. Dist. Lexis 4577, 2001 WL 274754 (D. N.H. 2001).
a) Plaintiff sued under § 1983 based on questioning in violation of Miranda.
b) Court reiterated three different views of the relationship between Miranda violations and claims under § 1983.
(1) Most restrictive view
(a) Miranda violations, whether the results are used at trial or not, are not actionable under § 1983.
(b) The sole remedy for Miranda violations is the exclusion of evidence at trial.
(2) Median rule
(a) Where evidence obtained in violation of Miranda is used at trial, there is a Fifth Amendment violation (exclusion of the evidence) and basis for a §1983 action.
(3) Liberal view
(a) Miranda violations are actionable under § 1983 even when the results are not used in a criminal proceeding.
(c) The court then refused to adopt a position, based on the uncertainty of a cognizable § 1983 action based on Miranda violations.
III. DNA and other scientific evidence
A. Destruction of evidence or failure to disclose evidence.
Failure to disclose exculpatory physical evidence or scientific evidence may establish a Brady violation. However, absent a defendant making out a Brady violation, the defendant must establish that the failure to disclose the evidence or the destruction of the evidence violated his due process rights. The constitutional framework for this aspect of case management is discussed below:
1. California v. Trombetta, 467 U.S. 479 (1984).
Several respondents were stopped on unrelated incidents of suspicion of drunken driving on California highways. Each of the respondents in the Trombetta case submitted to an intoxilyzer (breath-analysis) test and registered a blood alcohol concentration high enough to be presumed to be intoxicated under California law. The practice of the arresting officers at the time was not to retain samples of the respondents’ breath, but rather to retain the test results. The California court below held that to destroy these breath samples violated due process in that it precluded defendants from challenging the test results at trial.
In its opinion, after noting that the evidence to be presented at trial was not the breath sample itself, but the intoxilyzer results, the U.S. Supreme Court went on to note that the “constitutional duty of the states to preserve evidence is limited to evidence that might be expected to play a role in the suspect’s defense. The evidence must possess an exculpatory value that was apparent before it was destroyed and also must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 488-489.
2. Arizona v. Youngblood, 488 U.S. 51 (1988).
The defendant was convicted of child molestation, sexual assault and kidnapping. The police failed to preserve potentially useful evidence when they failed to refrigerate the victim’s clothing and to perform tests on semen samples. None of this information was concealed from the defendant at trial, and there was no indication of any bad faith on the part of the police. The unrefrigerated evidence was made available to defendant’s expert who declined to perform any tests. The court concluded that there was no violation of the due process clause. The opinion seems to somewhat refine or modify the test enunciated in Trombetta. The Youngblood court held that unless the defendant can show bad faith on the part of the police, failure to preserve potential useful evidence does not equate to a denial of due process under law. The court distinguished its analysis from the analysis used in Brady, as indicated by the following quotation.
The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the state irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. Part of the reason for the difference in treatment is found in the observation made by the [Trombetta court] that “[w]henever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.” Part of it stems from our unwillingness to read the “fundamental fairness” requirement of the Due Process Clause as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution. We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.
488 U.S. at 57-58 (citations omitted).
1. Subsequent Cases: Note: The cases below discuss this issue only in the context of the constitutional requirements of due process. In many jurisdictions, state statutes require preservation of various types of evidence, including DNA evidence. See, e.g., N.C.G.S. §15A-268 (2001).
U.S. v. Mendoza-Paz, 286 F.3d 1104 (9th Cir. 2002).
The government failed to provide defendant with summaries of a chemist's anticipated testimony and qualifications until four days before trial and failed to provide names of tests conducted on substances seized from defendant until first day of trial. However, given defendant's failure to show a likelihood that the verdict would be undermined had such information been provided earlier (tests conducted were standard and all positively identified substances as marijuana), admission of chemist’s testimony was not a Brady violation.
U.S. v. Duvall, 272 F.3d 825 (7th Cir. 2001).
Any error in admission of government chemists' testimony in drug prosecution, despite alleged inadequacy of government's pretrial notice of the chemists' testimony because it was allegedly difficult to identify from the disclosures the particular weight and purity of the mixtures in each of the separate bags seized, was harmless and not a Brady violation, given defendant's admission of his intent to distribute the substances.
U.S. v. Lopez, 271 F.3d 472 (3rd Cir. 2001).
In defendant’s prosecution including charges of murder, burglary and robbery under Virgin Islands law, the government failed to provide, before trial, the required written summary of its fingerprint expert's qualifications, and to list the bases and reasons for the expert's opinion. However, absent any allegation or showing of resulting prejudice, the defendant was not entitled to a new trial.
Boyette v. Lefevre, 246 F.3d 76 (2nd Cir. 2001).
Once a reviewing court has found constitutional error under Brady arising from a failure to disclose material exculpatory evidence, there is no need for further harmless error review.
Bullock v. Carver, 297 F.3d 1036 (10th Cir. 2002).
Held: Where a child therapist conduct initial interviews of alleged victims which triggered a subsequent investigation by police, because the therapist was not acting as an agent of the police, her failure to make a record of her interviews could not form the basis of a due process claim advanced by the defendant.
U.S. v. Bloomgren, 42 Fed. Appx. 147 (10th Cir. 2002).
No Youngblood due process violation occurred, in prosecution of a felon in possession of firearm, from government’s alleged mishandling of evidence allegedly damaging defendant’s ability to present defense that fingerprints other than his had been on weapon; the government had not been placed on notice that the defendant believed the fingerprint evidence was potentially useful. Therefore, there could be no finding of bad faith on the government’s part.
Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002).
Actions of police in mistakenly destroying “rape kit” evidence during course of investigation did not result in violation of due process rights of the defendant (who was ultimately charged with rape), where evidence was only potentially useful prior to testing, and no bad faith was shown. Police had not identified defendant or anyone else as a suspect at the time the evidence was mistakenly destroyed.
Phillips v. Woodford, 267 F.3d 966 (9th Cir. 2001).
State did not violate defendant’s due process rights by destroying remains of vehicle in which murder victim was sitting at time of shooting and which was allegedly torched by defendant to cover up crime, absent any evidence suggesting that destruction was accomplished to prevent disclosure of evidence favorable to defense or that exculpatory value of vehicle was apparent prior to its destruction.
Cooper v. Calderon, 255 F.3d 1104 (9th Cir. 2001).
Police officer’s destruction of blood-spattered overalls which were represented by person who brought them to officer to be evidence in a first-degree murder prosecution did not deny defendant due process, absent any showing that overalls were exculpatory or a showing of bad faith on the officer’s part. The officer had informed murder investigators of the evidence, then waited six months before destroying it. The duty of police to preserve evidence is limited to material evidence, i.e., evidence whose exculpatory value was apparent before its destruction and that is of such nature that the defendant cannot obtain comparable evidence from other sources. Unless criminal defendant can show bad faith on part of police, failure to preserve potentially useful evidence does not constitute a denial of due process.
Downs v. Hoyt, 232 F.3d 1031 (9th Cir. 2000).
Deputy did not violate the defendant’s due process rights when he destroyed handwritten notes related to investigation. Given that the deputy’s demeanor in testifying and apparent selective destruction of notes did not establish the required bad faith, especially in light of the trial court’s statement that deputy was just as likely confused as evasive in his testimony. Further, the deputy incorporated many of his notes into reports, and the defendant failed to make the required showing that the destroyed items had potential exculpatory value.
B. 42 U.S.C. §1983 Cases
1. Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002).
Defendant brought a §1983 claim for failure to turn over evidence after his conviction so that defendant could conduct independent DNA testing using technology that was not available at the time of his conviction. Where a criminal defendant is only seeking access to evidence in order to conduct further testing that might lead to his exoneration, he is not entitled to a remedy under §1983.
A criminal defendant may only bring § 1983 claim that would imply invalidity of his conviction or sentence (i.e., a due process or similar issue) if he can prove that his conviction or sentence has already been invalidated. The remedy in this instant case would be a petition for a writ of habeas corpus.
2. Morgan v. Gertz, 166 F.3d 1307 (10th Cir. 1999).
The defendant was acquitted of aggravated incest and sexual assault. He brought a §1983 action against a social worker and a police detective who had worked on the case. The §1983 action sought damages for alleged intentional destruction of exculpatory evidence prior to trial. On appeal from a grant of summary judgment for the defendants, the court noted that: 1) withholding or destroying evidence violates a defendant’s constitutional rights under the due process clause only if as a result of that withholding destruction, the defendant does not receive a fair trial. 2) The person who has been acquitted has not been denied the 14th Amendment right to a fair trial.