One of the most troubling and perplexing issues facing law enforcement in the United States is defining and disclosing impeachment evidence regarding law enforcement officers in criminal cases. By tradition and long-standing practice, federal prosecutors refer to potential impeachment information about police officers or agents as “Giglio Material.” See Giglio v. United States, 405 U.S. 150 (1972). Everybody agrees that such impeachment evidence must be disclosed under the Due Process Clause of the US Constitution. The problem is that nobody really knows exactly what Giglio Material is. The fact that a police officer committed perjury or planted evidence clearly is covered. But what about lying to your wife about having a girlfriend, using a racial epithet while off duty, or having a history of depression or alcoholism?
The Supreme Court issued a few broad opinions in the area of disclosable impeachment material, then walked off the podium, leaving a symphony that lies unfinished after the first movement. Rule 16 of the Federal Rules of Criminal Procedure governs mandatory discovery in criminal cases but does not even mention Giglio Material. Police, prosecutors, legislators, and lower courts have reached no consensus on the definition of Giglio Material, and in fact present wildly disparate views. Even more worrisome, a national survey found that a majority of prosecutors’ offices in the United States do not have a formal Giglio policy to cover the definition and disclosure of such impeachment material, and some local law enforcement leaders are not even aware that such a constitutional requirement exists.
In the current climate focusing on police misconduct and increased transparency, it is imperative for criminal justice in the United States that clear rules are established defining law enforcement Giglio Material. This article summarizes the evolution of Giglio Material under Supreme Court precedent, describes some of the Giglio protocols from around the nation, discusses difficult examples of attempting to apply Giglio to police hypotheticals, and finally proposes amending Rule 16 to provide a workable definition of Giglio Material. Interestingly, as recently as 2011, the Advisory Committee on the Federal Rules engaged in a vigorous debate about amending Rule 16 to address Giglio Material. The motion to amend failed by one vote, with the Department of Justice casting the deciding opposing vote.
This section addresses the limited and spectacularly inconclusive precedent from the US Supreme Court about Giglio Material.
The origins of the Giglio doctrine are familiar to all lawyers. In Brady v. Maryland, the Supreme Court held, “[S]uppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution.” The Court thus established a two-pronged standard for evidence that must be disclosed to the defense in criminal cases—evidence that is (1) favorable to the accused and (2) material to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
In the eponymous Giglio v. United States, the Court made a small and uncontroversial clarification to the rule in Brady. The Court held that impeachment evidence about witnesses—“evidence affecting credibility”—falls squarely with the general disclosure rule of Brady. Thus, Giglio established the simple rule that impeachment evidence for witnesses was part of the discovery required by the Due Process Clause. See 405 U.S. 150, 154–55 (1972). From this seemingly straightforward holding, the complex issue of law enforcement Giglio Material was born, as potential impeachment material about testifying police officers falls into the same general category of required discovery about any testifying witness.
The Court’s next attempt to define Giglio Material was where the train began to run off the tracks. In United States v. Bagley, the Court reiterated the Brady standard that evidence must be disclosed if it is (1) favorable to the defense and (2) material to the issues of guilt or punishment. In addressing the materiality prong, the Court held that evidence is material if it “might have affected the outcome of the trial.” A reversal is required “only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” See 473 U.S. 667, 674–75, 678 (1985). Now, defining police impeachment material became a moving target, depending entirely on the nature of the impeachment evidence and the strength of the rest of the criminal case.
Finally, in Kyles v. Whitley, the Court completely unleashed chaos in the area of defining Giglio Material. Writing for the majority in a badly fractured 5-4 decision, Justice David Souter broke new ground on the materiality standard for Brady/Giglio violations. Justice Souter wrote that the test for materiality “turns on the cumulative effect of all such evidence suppressed by the government,” not an analysis of any single piece of evidence. The traditional test for materiality seemingly remained “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” However, Justice Souter went on to opine that a reasonable probability of a different result for Brady/Giglio materiality purposes does not require that disclosure would have resulted in an acquittal, but instead set the standard as whether the failure to disclose still resulted in “a verdict worthy of confidence.” In making a determination about what constitutes Giglio Material and must be turned over, the prosecutor must “gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability’ is reached.” See Kyles v. Whitley, 514 U.S. 419, 421, 433–37 (1995).
These four cases represent the substance of the Supreme Court’s guidance to prosecutors on determining exactly what is law enforcement Giglio Material that must be disclosed to the defense in criminal cases. Counterintuitively, the Court never even mentioned Federal Rules of Evidence 608 and 609, the foundational rules that govern impeachment evidence at trial. Instead, the Court created a freestanding definition of Giglio Material: It is whatever is favorable to the accused and “material” to guilt or punishment. This includes material impeachment evidence. Materiality is defined as constituting a “reasonable probability” that the result of the proceeding would have been different, judged by whether not disclosing the evidence still resulted in a “verdict worthy of confidence.” All the prosecutor needs to do pre-trial is assess all of the evidence the government has, all of the theories and evidence that the defense might present (without knowing what they are), and then “gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability’ is reached.”
If you think that this standard is a tad convoluted and unworkable, you are not alone. In Bagley, Justice Thurgood Marshall offered a well-grounded criticism of the Court’s attempted Brady/Giglio standard. First, Justice Marshall pointed out, “The private whys and wherefores of jury deliberations provide an impenetrable barrier to our ability to know just which piece of information might make, or might have made, a difference.” Justice Marshall went on to note, “[The prosecutor] must evaluate his case and the case of the defendant—of which he presumably knows very little—and perform the impossible task of deciding whether a certain piece of information will have a significant impact at trial. . . . At best, this standard places on the prosecutor a responsibility to speculate, at times without foundation, since the prosecutor will not normally know what strategy the defense will pursue or what evidence the defense will find useful.” Justice Marshall succinctly summarized his critique by concluding that the Supreme Court’s jurisprudence in this area “imposes on prosecutors the burden to identify and disclose evidence pursuant to a pretrial standard that virtually defies definition.” See Bagley, 473 U.S. at 685–709 (emphasis added).
And this is precisely where the Supreme Court decided to abandon any further attempt to define Giglio Material. Given this confused and confusing background, it is unsurprising that police, prosecutors, and legislators have struggled to understand and apply the concept of Giglio Material in disclosing impeachment evidence about police officers. The following section describes a few of these attempts to create some concrete definitions.
Prosecutors, the police, and legislatures all have struggled to create policies that define what constitutes disclosable police impeachment evidence. Following is a survey of selected policies and legislation that have attempted to define law enforcement Giglio Material.
In 2009, the International Association of Chiefs of Police (the IACP) issued a model policy on Brady/Giglio evidence. See Int’l Ass’n of Chiefs of Police, Model Policy on Brady Disclosure Requirements (Apr. 2009) (the IACP Model). The IACP is a well-respected organization that the police community often looks to for guidance. The IACP Model does not explicitly differentiate law enforcement Giglio Material from general Brady disclosure requirements. However, the policy does make at least passing references to disclosable police officer conduct.
For instance, the IACP Model states that disclosable police impeachment evidence includes “[a] finding of misconduct by a Board of Rights or Civil Service Commission that reflects on the witness’s truthfulness, bias, or moral turpitude. This includes employees under suspension.” The policy also captures “[a]n officer’s excessive use of force, untruthfulness, dishonesty, bias, or misconduct in conjunction with his or her service as a law enforcement officer.” Somewhat inconsistently, the IACP Model includes a much broader list of potential impeachment material for civilian witnesses, including the disclosure for non-law enforcement witnesses of: (1) any criminal record or pending criminal cases; (2) information regarding any mental or physical impairment of the witness that would cast doubt about the witness’s ability to testify accurately; and (3) any evidence of bias against the defendant or any member of a group based on race, religion, or personal bias.
The IACP Model is notable for a number of reasons. First, even though it was drafted 37 years after Giglio, it includes extremely limited examples of what actually constitutes law enforcement Giglio Material. Second, where the IACP Model does explicitly discuss such law enforcement Giglio Material, it makes the scope of such mandatory disclosures extremely narrow—it only covers on-duty conduct and findings of misconduct formalized by something like a Civil Service Commission. Third, the IACP Model applies some impeachment disclosure rules to civilian witnesses that logically would apply equally to law enforcement witnesses, but the policy evades applying such rules to the police.
Any discussion of prosecutors’ policies defining law enforcement Giglio Material necessarily begins with the relevant protocols from the US Department of Justice (DOJ). DOJ was responsible for christening this area of disclosures as “Giglio Material” and has the most experience in thoughtfully evolving its own policies.
In 1996, the year after Kyles was decided, Attorney General Janet Reno issued DOJ’s inaugural Giglio policy. See US Dep’t of Just. Memorandum from Att’y Gen. Janet Reno, Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (Dec. 9, 1996) (the Reno Policy). The Reno Policy was the first systematic attempt by DOJ to classify and clarify what constitutes Giglio Material. In the policy, DOJ admitted that “The exact parameters of potential impeachment information are not easily determined.” The Reno Policy then briefly defined Giglio Material in one sentence: “This information may include but is not strictly limited to: (a) specific instances of conduct of a witness for the purpose of attacking the witness’ credibility or character for truthfulness; (b) evidence in the form of opinion or reputation as to a witness’ character for truthfulness; (c) prior inconsistent statements; and (d) information that may be used to suggest that a witness is biased.” The policy made no attempt to differentiate law enforcement Giglio Material from general Giglio Material. The policy covered all of the US Attorneys’ Offices and the federal investigative agencies.
Currently, DOJ has a much more extensive policy regarding law enforcement Giglio Material than was initially formulated by the Reno Policy. Last updated in January 2020, the current US Attorneys’ Manual provides a laundry list of items considered law enforcement impeachment material. See US Dep’t of Just., Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (Giglio Policy), Justice Manual § 9-5.100 (updated Jan. 2020) (the DOJ Policy). DOJ also has a complex system of procedures and overlapping protocols to keep track of such information across the nation for federal cases.
The DOJ Policy starts with repeating verbatim the Reno Policy’s general definition of impeachment material and the difficulty with defining such material. The DOJ Policy then provides specific categories of evidence about law enforcement officers that constitute disclosable Giglio Material. In DOJ’s own language, the policy requires disclosure of:
i) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor during a criminal, civil, or administrative inquiry or proceeding;
ii) any past or pending criminal charge brought against the employee;
iii) any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation;
iv) prior findings by a judge that an agency employee has testified untruthfully, made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession, or engaged in other misconduct;
v) any misconduct finding or pending misconduct allegation that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—that the prosecutor intends to rely on to prove an element of any crime charged, or that might have a significant bearing on the admissibility of prosecution evidence. Accordingly, agencies and employees should disclose findings or allegations that relate to substantive violations concerning:
(1) failure to follow legal or agency requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications;
(2) failure to comply with agency procedures for supervising the activities of a cooperating person (C.I., C.S., CHS, etc.);
(3) failure to follow mandatory protocols with regard to the forensic analysis of evidence;
vi) information that may be used to suggest that the agency employee is biased for or against a defendant … ; and
vii) information that reflects that the agency employee’s ability to perceive and recall truth [sic] is impaired.
The DOJ Policy also notes that Giglio Material includes both on-duty and off-duty conduct. However, the policy explicitly states that allegations against law enforcement officers “which are unsubstantiated, not credible, or have resulted in exoneration” are not considered disclosable impeachment material.
There are a number of notable aspects to the DOJ Policy. First, like the IACP Model, DOJ repeatedly mentions bias/prejudice and dishonesty as core Giglio concerns. Second, it does not discuss excessive force, although some of the categories mentioned (e.g., illegally obtaining a confession) might be construed as covering excessive force. Third, in stating that allegations that are “unsubstantiated, not credible, or have resulted in exoneration” are not disclosable Giglio Material about law enforcement, the DOJ Policy both leaves itself subject to the sometimes questionable results of police arbitration rulings about discipline and grants DOJ lawyers a large degree of discretion over what is “not credible.” Fourth, the DOJ Policy specifically takes the ability to perceive and recall as a relevant Giglio factor for law enforcement; other policies that address this issue only apply it to civilian witnesses. Fifth and most importantly, it is clear that DOJ has a much more expansive view of what constitutes law enforcement Giglio Material than the IACP Model or any of the actual law enforcement Giglio policies that are currently in use. Where the IACP considers only a narrow band of conduct to be law enforcement Giglio Material, DOJ prosecutors have created a much more comprehensive list of disclosable impeachment evidence. This reflects a general and important philosophical trend of “splitting the prosecution team,” as aptly described by one commentator, because the issue of law enforcement Giglio Material has a tendency to create an adversarial relationship between prosecutors and the police. See Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743 (2015).
Realizing the vacuum in authority about law enforcement Giglio Material, a few legislative bodies have attempted to provide some structure about what constitutes disclosable impeachment material about police witnesses. The proposals have not been subtle, but they are interesting. Two approaches are described below.
New York State has been experiencing dizzying legislative changes in attempting to deal with law enforcement Giglio Material. The New York legislature has taken a two-pronged approach: (1) prosecutors must turn over everything they know about the police and (2) New York has made every allegation and finding of police misconduct open to the public.
For New York prosecutors, effective January 1, 2020, a sweeping new automatic discovery rule encompassing law enforcement Giglio Material went into effect. The law, section 245.20 of the New York Criminal Procedure Rules, states that prosecutors “shall disclose” to the defendant all evidence and information that tends to “impeach the credibility of a testifying prosecution witness,” among other discovery items. The information must be disclosed “whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the allegation.” This latter language makes it clear that the prosecution needs to produce anything that they may have heard from anywhere and must disclose even unsubstantiated or dismissed allegations. The statute does not attempt to define specific areas of impeachment material, simply taking the approach that everything must be disclosed.
Paired with this automatic discovery rule, on June 12, 2020, the New York governor signed a bill repealing section 50-a of New York’s Civil Rights Law. Section 50-a, originally passed in 1976, protected from public disclosure “all personnel records” of police officers. The repeal of section 50-a now makes the personnel records of all 36,000 New York City police officers (and all police officers in the state of New York) subject to public disclosure. This includes any complaint, allegation, or discipline, no matter how large or small, and regardless of whether the complaint was dismissed or substantiated.
The twin effects of the automatic discovery rule and the repeal of section 50-a essentially means that there is now an “open file” discovery rule regarding law enforcement Giglio Material in New York. Prosecutors have a duty to turn over everything they know about potential police witnesses in every case. And to the extent that the prosecutors might miss something, the personnel files of the police officers are open for discovery by any defense lawyer or member of the public.
To the extent that New York has decided to go beyond the Supreme Court’s requirements for Giglio Material by making everything about police witnesses disclosable by prosecutors and publicly available, California has taken an entirely different approach. California’s default rule is that nothing about law enforcement impeachment material is discoverable, not even to the prosecutors.
Under section 832.7 of the California Penal Code, a byzantine procedure has been created. The default rule is that law enforcement personnel files/misconduct findings “are confidential and shall not be disclosed in any criminal or civil proceeding . . . .” This means that neither the prosecution nor the defense knows what is in the police files concerning potential Giglio impeachment material.
The general rule of confidentiality is subject to two categories of exceptions. First, the legislature stated that disclosures could be made where (a) a police officer discharged a firearm at a person or otherwise used force causing death or serious injury, (b) a police officer sexually assaulted a civilian, or (c) there is a sustained finding of dishonesty by a police officer. These discoverable areas were recently created, passed as an amendment in 2018. Second, and outside of these narrow areas, the only way to obtain Giglio impeachment material from a police officer’s personnel record is to file a motion with the court asking for disclosure “pursuant to Sections 1043 and 1046 of the Evidence Code.” In California, such motions are called Pitchess motions, named after the California Supreme Court decision in Pitchess v. Superior Court, 11 Cal. 3d 531 (1974).
Thus, in a criminal case in California, if either the prosecution or the defense believes that there may be law enforcement Giglio Material contained in police personnel records, the attorney must file a Pitchess motion with the trial court, without actually knowing what might be in the file. Despite not knowing what is in the file, the motion must set forth a description of the records sought and the “materiality” of the evidence regarding the pending litigation.
The trial court then conducts an in camera, ex parte review of the file. Neither the prosecution nor the defense lawyer is permitted to review the file and argue about disclosure. However, the police officer (as “the person authorized to claim the privilege”) and the union representative of the police officer are allowed to confer with the judge about what should be disclosed.
The court then must decide what is relevant and material, i.e., what actually constitutes law enforcement Giglio Material in the files that must be disclosed. In making this decision, section 1045 of the California Evidence Code provides a few rules. Any law enforcement conduct that is more than five years old is excluded. The conclusions of any police officer investigating a citizen complaint of police misconduct are excluded. Facts that are “so remote as to make disclosure of little or no practical benefit” are excluded. The trial court also should consider whether the information sought is available from some publicly available source; shall make any order necessary to protect the police officer from “annoyance, embarrassment or oppression”; and shall limit the use of any disclosed records to the specific case pending before the court. With these outer boundaries, the trial court then must make a decision about what is “relevant” law enforcement Giglio Material under the precedent of the US Supreme Court and California courts.
Thus, the East Coast and the West Coast have two utterly different approaches to Giglio Material. In New York, everything about police officers appears to be discoverable and disclosable. In California, even the prosecutors may not know what is in the police officer’s file, and discovering it is a convoluted process.
To summarize this survey of policies and legislation about law enforcement Giglio Material, it is accurate to say that there is a complete lack of definitional clarity. Policies are wildly inconsistent. Legislation is remarkably nonstandard. The Supreme Court decisions are opaque. The Federal Rules of Criminal Procedure are silent. Against this backdrop, the next section attempts to apply these various standards to the specific behavior of law enforcement officers. The results are not pretty, but they are revealing.
In an effort to frame the basic question of what constitutes law enforcement Giglio Material, following are a few hypothetical scenarios involving police conduct that will look eerily familiar to prosecutors throughout the United States. These examples are designed to highlight the complexity and scope of the larger definitional problem. Any experienced prosecutor or defense lawyer could come up with a laundry list of other perplexing scenarios.
The Alpha Township Police Department receives a 911 call for a potential fire on the back deck of one apartment in a building. Three police officers arrive at the scene: two patrol officers and a sergeant. They enter the building and the apartment, finding a small fire on the deck, which they put out with a fire extinguisher. They notice drug paraphernalia around the apartment, including scales, baggies for packaging drugs, and cutting agents for drugs. They also notice a small lock box, which they all agree probably contains drugs and/or money. The sergeant informs the two patrol officers to wait inside while he steps outside to call the local prosecutor’s office for a necessary search warrant for the lock box. The sergeant tells the patrol officers not to open the lock box.
After the sergeant calls the prosecutor’s office to start the search warrant process, he re-enters the apartment. The sergeant finds the two patrol officers with the lock box now opened, revealing cocaine and $4,500 in currency. The patrol officers tell the sergeant that one of them “tripped over” the lock box and the contents spilled out. Despite this, the sergeant still obtains a search warrant for the lock box, using only the information that he knew before the lock box was “tripped over” by the patrol officers. The occupant of the apartment then arrives. He is given Miranda warnings and interviewed by the sergeant, all recorded on a body camera, and admits that he was selling drugs from the apartment. He requests a probationary sentence because he was cooperative. The sergeant also discovers a video/audio security system in the apartment, obtains a search warrant for it, and discovers that it recorded the occupant selling cocaine from the apartment on multiple occasions.
The next day, the sergeant confronts the two patrol officers about their story regarding tripping over the lock box. They admit that they lied. When the sergeant left the room to call for a search warrant, they broke the lock box open and discovered the drugs and money. They apologize profusely.
If the occupant of the apartment is charged with drug dealing, do the actions of the patrol officers constitute Giglio Material that must be disclosed by prosecutors, and thus would result in the reversal of a conviction if not disclosed? Surely, this is an easy example. The patrol officers engaged in three distinct forms of misconduct: (1) they lied about tripping over the lock box, (2) they intentionally violated the Fourth Amendment by opening the lock box without a warrant, and (3) they disobeyed a direct and lawful order from their superior not to open the lock box.
Under every Giglio policy discussed supra, this conduct by the patrol officers would constitute Giglio Material and must be disclosed in a criminal case where the officers are testifying. It is core dishonesty in the actual case under consideration, involves a clear and intentional constitutional violation, and has the insubordination angle thrown in as an additional factor. The easiest case possible, right? Every prosecutor, law enforcement officer, defense lawyer, and scholar agrees, correct?
In fact, everybody agrees that the conduct here constitutes Giglio Material, except for the US Supreme Court. In Bagley, under the materiality standard, the Court specifically stated that evidence constitutes Giglio/Brady information only if there is a reasonable probability that the nondisclosed information would have resulted in a different outcome at trial. The Kyles court morphed that standard into a general requirement for “a verdict worthy of confidence.” In this scenario, the sergeant made sure that a conviction in this case was airtight. The sergeant got a search warrant for the box based solely on the lawfully obtained evidence, the defendant confessed to the crime, and there is a video and audio recording of the drug dealing on the security system. There is absolutely no doubt that the defendant was dealing drugs from the apartment. Under the current US Supreme Court precedent, the evidence would not be considered “material.” Thus, there is no duty for the prosecution to turn over the misconduct of the patrol officers; the misconduct evidence, if not disclosed, would not result in a reversal of the conviction.
This rather unbelievable gulf between Supreme Court precedent and real-life implications highlights the incomplete nature of the case law governing Giglio Material. The Supreme Court clearly needs to revisit this issue and redefine Giglio Material—unless, that is, the Court is satisfied that the misconduct by the officers described above really should not be disclosed by prosecutors.
The next police Giglio issue is one that has been entirely ignored in academic and practical literature but represents a revolutionary potential area of legitimate law enforcement Giglio Material. It deals with substance abuse and mental health.
Initially, consider the issue as applied to a civilian witness. The Zanesville Police Department is conducting a drug investigation, using a confidential informant named Larry. Larry was a crystal methamphetamine addict for over 10 years and was diagnosed with bipolar disorder, but he recently has cleaned himself up and tests negative for drugs every week. Larry is engaging in controlled buys of drugs from various drug dealers in the area of Zanesville. All of the drug deals are done under police supervision. Some of the deals are recorded with a body wire and some are not, relying instead on Larry’s description of the deals when he is debriefed by the police. When the drug dealers are arrested and go to trial, the prosecutors are expected to disclose Larry’s prior drug addiction and mental health evidence as impeachment material. Under longstanding law, such evidence goes directly to the issue of the witness’s ability to recall and communicate accurately, and failure to disclose such information would result in reversal of any conviction.
Now consider essentially the same issue applied to a police officer. Officer Parker originally worked for the Hampton Police Department. He resigned when he was arrested for a DUI, went through an alternative disposition program for first-time offenders, and had the charges expunged. Officer Parker then was hired by the Chester Police Department and became a detective, investigating complex crimes for 10 years. What nobody at the Chester Police Department knew was that Officer Parker was still a functioning alcoholic, regularly drinking during work and investigating cases with a blood alcohol level over 0.20, meaning that he was working and driving a Chester Police Department vehicle while legally drunk. The Chester police chief eventually suspects that Officer Parker has a drinking problem and subjects him to testing at work, revealing his inebriated state. The chief, an all-around great guy, does not fire Officer Parker. Instead, the chief immediately has Officer Parker admitted into an in-patient substance abuse program. Officer Parker completes the treatment, comes out clean and sober, and has maintained his sobriety for the past three years, albeit suffering from depression. Now, the issue is whether Officer Parker’s long-term alcohol abuse and mental health status must be turned over as law enforcement Giglio Material every time Parker testifies because his alcoholism and depression may have affected his ability to recall and relate information.
This is a major issue for police officers. Police officers are well-known to have struggles with alcoholism. In addition, it is not uncommon for a police officer to get injured in the line of duty, have surgery, be prescribed opioids, and become addicted, like many people in the United States. Moreover, many police officers struggle with depression, anxiety, and other mental health issues, and may be prescribed psychotropic drugs to treat these psychological issues.
The issue is whether such substance abuse and mental health issues constitute disclosable law enforcement Giglio Material. The argument is that substance abuse and mental health issues affect the ability to recall and relate information accurately, core impeachment issues. Interestingly, many Giglio policies specify that such information must be disclosed for civilian witnesses. For instance, the DOJ Policy explicitly states that “[k]nown substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events” are considered disclosable Giglio issues for civilian witnesses. However, none of the surveyed Giglio policies discussed above from police or prosecutors, nor any legislative proposals, identify substance abuse and mental health issues for law enforcement officers as disclosable Giglio Material. The closest any policy comes to the issue is a glancing reference in the DOJ Policy that “information that reflects that the agency employee’s ability to perceive and recall truth is impaired” must be disclosed for law enforcement officers. See DOJ Policy, § 9-5.100.5.C.vii.
The omission of substance abuse and mental health issues for police from all of the policies and academic literature about law enforcement Giglio Material is simply wrong. The ability to recall and relate information accurately is a fundamental impeachment issue. Drug or alcohol addiction and mental health issues clearly impact on the ability to recall and relate, in both the short term and long term. This is exactly why such issues are so widely recognized as impeachment material for civilian witnesses. The same Giglio issue must be recognized for law enforcement officers.
While this is legally accurate, it is problematic. No police officer wants to have disclosed that they are or were an alcoholic or drug addicted, or that they have mental health issues. Law enforcement officers may try to cover up such information. Some police officers may avoid getting treatment for these problems simply to avoid having to make the disclosures. All of these are negative collateral consequences. But they do not change the hard truth that such information should and must be disclosed under the logic of Giglio.
The following hypothetical about law enforcement Giglio Material causes no end of debate when discussed among prosecutors. Officer O’Neal is off-duty and at a bar. He gets into a drunken fight with another bar patron. Nobody gets hurt, no charges are filed, and nobody can even remember how the fight started.
Under this scenario, if Officer O’Neal was called to testify in an unrelated criminal case, there is little dispute that Giglio is not implicated under the police and prosecutor protocols described above. The conduct is off duty, no charges were filed, no citizen complaints were made, and the circumstances do not assign any responsibility. None of the Giglio protocols previously described capture such conduct.
However, changing a minor fact can turn the analysis on its head. Imagine that all of the other facts remain the same, but Officer O’Neal got into the fight with a Black civilian and used the “n-word” during the fight.
Now, it appears that Giglio comes into play. Virtually every prosecutorial and law enforcement Giglio protocol includes a category for bias/prejudice against a constitutionally protected group. In the case of bias/prejudice, there is no exception for off-duty behavior. Certainly, every lawyer defending a Black defendant would want to cross-examine Officer O’Neal about his use of a racially derogatory term. Just ask Los Angeles Police Detective Mark Fuhrman about his cross-examination in People of the State of California v. Orenthal James Simpson. So a very small change in the facts results in a totally different result for classification of evidence as law enforcement Giglio Material.
But the hypothetical can be tweaked again. Apply the same facts as above, including the racial slur, but now Officer O’Neal and the civilian are both Black. Is Officer O’Neal’s comment a racial slur when directed at a Black civilian, or is that view the result of a “cultural misunderstanding”? Some prosecutors would classify the comment as an example of racial bias/prejudice and consider it Giglio Material, reasoning that a standard encompassing racist terms must apply equally to every law enforcement officer. Some prosecutors would take the “cultural misunderstanding” view and not disclose the comment. These are the subtle factual nuances and judgment calls that can plague this area of the law.
Where would the Supreme Court come down on these variations on a theme? Almost certainly, the ruling would be a decisive, “It depends.” It depends on the strength of the other evidence, the theories raised by the defense, and the importance of whatever testimony Officer O’Neal is offering in the specific case, from the advantageous perspective of viewing all of the evidence after the trial. The last variation of the hypothetical, regarding the “cultural misunderstanding,” could easily result in nine different, lengthy, and convoluted opinions from the Supreme Court justices under the current precedent.
Unfortunately, the Supreme Court’s answer to most law enforcement Giglio Material questions posed before a case goes to trial is: “It depends.” As pointed out by Justice Marshall in Bagley, such a definition is useless to prosecutors.
Our next hypothetical deals with an unreasonable and obstinate judge, which every actor in the criminal justice system will recognize (except possibly the unreasonable and obstinate judges).
Judge Frock does not like drug interdiction traffic stops. In these traffic stops, police officers have been trained to spot potential drug dealers based on a number of factors (e.g., out-of-state license plates from common drug transportation centers, rental cars, etc.), make traffic stops for minor but real traffic violations (e.g., speeding or failure to use a turn signal), then obtain consent to search the vehicle (which is often and surprisingly given). Judge Frock believes that all of this is voodoo and possible racial profiling.
In a suppression hearing before Judge Frock, Officer Troutman from the Fox Chapel Police Department testifies about an interdiction traffic stop that resulted in the seizure of two kilograms of fentanyl. All of the conduct on the stop by Officer Troutman and the defendant driver was captured on video and audio recordings by the officer’s vehicle recorder and body camera, including the obvious traffic violation, consent to search the vehicle, and recovery of the drugs. The defendant driver is white. Nevertheless, because he does not like interdiction stops, Judge Frock suppresses the seizure of the drugs. In his written opinion, Judge Frock bases his decision specifically on a finding that Officer Troutman’s testimony was “lacking in credibility.” The local district attorney’s office reviews the judge’s opinion and reviews the evidence again. The prosecutor’s office finds Officer Troutman to be entirely credible but decides not to appeal Judge Frock’s decision because such a credibility finding is virtually unreviewable under that state’s law.
Pursuant to nearly all of the Giglio polices, Judge Frock’s adverse credibility finding about Officer Troutman is disclosable law enforcement Giglio Material. It is an explicit finding of dishonesty and has been memorialized in a written opinion by a judge. Despite the fact that Judge Frock was mistaken and unreasonable, this adverse credibility finding must be disclosed every time Officer Troutman testifies. While this result seems clear, it also seems inequitable to Officer Troutman, who has no redress or remedy for the misinformed opinion of a misguided judge.
This hypothetical is going to be bitterly familiar to every police chief and prosecutor dealing with a large urban police department where discipline is ultimately decided by an outside arbitrator. Officer Rabbit works for the Big City Police Department. Officer Rabbit and his partner pull over a car for a suspected DUI. The male driver is clearly intoxicated. The individual turns out to be a juvenile, who is also the son of one of Officer Rabbit’s friends. Officer Rabbit arrests the juvenile for a DUI but also finds what appears to be 13 baggies of heroin on the juvenile. Not wanting to see his son’s friend get arrested for heroin possession, Officer Rabbit tosses the probable heroin packets down the sewer. Officer Rabbit’s partner later reports him to internal affairs. The body cameras of both officers recorded Officer Rabbit finding the baggies and throwing them away. Officer Rabbit’s partner is a veteran officer with no disciplinary record and multiple commendations, who testifies truthfully at each proceeding.
Officer Rabbit is investigated by internal affairs. Officer Rabbit claims that he did not discard any potential evidence, despite the recordings and his partner’s testimony. The internal affairs department recommends that he be terminated for destroying the evidence and for lying in the internal affairs investigation. Under the terms of Big City Police Department’s collective bargaining agreement, the initial firing decision is made by a captain, with potential consecutive appeals (via a grievance) about the firing to the Big City police chief, Big City mayor, and ultimately a “neutral” arbitrator. The captain fires Officer Rabbit, despite Rabbit claiming that he did not throw away anything. Officer Rabbit grieves the firing to the police chief, still stating that he did not throw away anything. The chief reviews the evidence, finds Rabbit to be totally lacking in credibility, and sustains the termination. Officer Rabbit grieves the firing to the mayor, with the same defense, and with the same result—the mayor upholds the termination.
Officer Rabbit then gets a union attorney and goes to arbitration, now two years after his termination. The arbitrator, as is traditional in police arbitrations, has to be mutually approved by the terminated officer and the police department, and comes from a list of arbitrators who regularly hear police discipline cases. In arbitration, the attorney has Rabbit admit that he threw the baggies away because it was captured on the body cameras and confirmed by Rabbit’s partner. But the union attorney now claims that there is no evidence that the baggies actually contained heroin because they were never tested, and Rabbit has no prior disciplinary record. The arbitrator recently upheld two other police officer terminations and is worried that if he upholds three in a row, he will never be approved by police union lawyers again to hear police discipline arbitrations around the state. Accordingly, the arbitrator issues a decision overturning Rabbit’s termination entirely and reinstating him with back-pay, based on the reasoning that the potential heroin was never tested and thus might not have been relevant evidence. The arbitrator does not mention Rabbit’s prior lies in the investigation, where he claimed that he never discarded anything from the arrest.
Every large urban police department has horror stories to tell about arbitration decisions that are contrary to any logic. And such arbitration decisions are virtually impossible to appeal. The impact on defining Giglio Material is tremendous, and tremendously bad.
For instance, the DOJ Policy explicitly states that allegations against law enforcement officers “which are unsubstantiated, not credible, or have resulted in exoneration” are not considered disclosable impeachment material. The allegations against Officer Rabbit “resulted in exoneration.” Thus, under the DOJ Policy, despite mountains of evidence, Officer Rabbit’s conduct is not going to constitute disclosable law enforcement Giglio Material, all because of the illogical, impenetrable, and unreviewable opinion of a single arbitrator. Other Giglio policies have similar language, exempting disclosure of evidence where the officer’s misconduct has been found to be acceptable or excusable by some decision-maker in the chain of appeals that cover police discipline. This appears to be a significant gap in defining law enforcement Giglio Material.
This section is an attempt to provide a solution to defining what constitutes law enforcement Giglio Material. The cleanest and most logical solution to defining law enforcement Giglio Material is to create a master list of fundamental, bedrock concepts that should be considered disclosable impeachment material about police officers. This list synthesizes the existing Giglio protocols, amorphous Supreme Court precedent, and perplexing factual scenarios discussed supra. These rules place the burden for making Giglio decisions and disclosures on prosecutors, where the burden has been placed by the Supreme Court.
To be clear, the suggestion here is that (1) the Supreme Court should abandon the “materiality” prong of the Giglio analysis as a failed experiment and (2) Federal Rule of Criminal Procedure 16 and the parallel state rules on criminal discovery should be amended expressly to incorporate the following disclosure categories into the rules themselves, creating a template for prosecutors and courts to follow across the United States. The new subsection to Rule 16 would read as follows:
Rule 16(a)(1)(H) Giglio Material. The government must disclose to the defendant all of the following:
(i) Any evidence regarding a law enforcement officer that may be admissible under Federal Rules of Evidence 608 and 609. This includes any pending criminal case where the law enforcement officer is a defendant and any prior arrests of the law enforcement officer.
(ii) Any evidence of dishonesty in the line of duty as a law enforcement officer or in any official proceeding, excluding conduct specifically permitted by law.
(iii) Any evidence that the law enforcement officer harbors any bias or prejudice regarding the defendant or any constitutionally protected group.
(iv) If the case or defense includes some element or issue of force exerted by the law enforcement officer, any findings or allegations of excessive use of force by that law enforcement officer.
(v) Any intentional violation of any constitutional rights or intentional failure to handle evidence pursuant to applicable department protocols by any law enforcement officer.
(vi) Any evidence that a law enforcement officer suffers from some reduced ability to recall and/or relate information accurately, including substance abuse and mental health issues.
(vii) Any evidence that a law enforcement officer has ever been terminated from employment or resigned in lieu of termination.
(viii) Any evidence that a law enforcement officer has ever been placed on a Giglio or Brady list by any agency, or has had their conduct classified as Giglio or Brady material that is subject to disclosure. This rule includes any state law equivalents to Giglio and Brady.
(ix) Any evidence that a law enforcement officer is a party to any pending civil, administrative, or other formal proceeding.
(x) Any evidence that a prosecutor is aware of about a law enforcement officer that is relevant to a prosecution or investigation and that negatively affects the integrity of a prosecution or investigation. This includes all categories of impeachment material that must be disclosed for civilian witnesses.
(xi) Other Considerations
(1) For impeachment evidence that qualifies under any of the previous categories, the evidence must be disclosed if (i) it was ever sustained or upheld in any proceeding, even if the finding was later overturned, or (ii) it is otherwise found to be credible by the prosecutor.
(2) Conduct of a law enforcement officer that took place more than ten years ago shall not be subject to disclosure, provided no other Giglio Material applies to that law enforcement officer during the intervening time period. This time-bar does not apply to evidence of dishonesty or bias/prejudice.
(3) The prosecutor must disclose all Giglio evidence that is known to the prosecutor or others acting on the government’s behalf in the case. If the Giglio evidence was publicly available at the time of the trial, nondisclosure by the prosecutor is not grounds for an appeal pursuant to Giglio.
The categories discussed above provide a bedrock framework for prosecutors and courts to make decisions about what material to disclose regarding testifying police officers as Giglio Material. This list is notable for three things. First, it expands the categories of disclosable material, particularly in the area of substance abuse and mental health. Second, it creates some hard-and-fast rules that reflect the real-life decisions that prosecutors must make regarding disclosures, based on specific prior examples or identified normative concerns. Third, this list allows prosecutors to make coherent decisions about disclosing law enforcement Giglio Material before a trial, rather than rolling the dice about what a court might consider to be “material” after a trial. If these standards are employed across the nation in a uniform fashion, then prosecutors, law enforcement, the courts, defendants, and the public might begin to renew respect for the criminal justice process. At the very least, these definitional issues merit a vigorous and informed debate.
In today’s climate, the definition of impeachment material regarding testifying police officers should be an area of the law that has been rigorously developed and subjected to well-established rules. Instead, the relevant Supreme Court precedent in the area of Giglio Material is an incoherent mess. As a result, prosecutors, police, courts, and legislatures have struggled to find a single consistent melody within the Supreme Court’s musical madness. Not surprisingly, the policies and protocols that have been developed across the nation to define law enforcement Giglio Material are wildly divergent and inconsistent. Also not surprisingly, this is one of the elements that has led the public to distrust the criminal justice system.
This article has proposed a fully integrated definitional list of what constitutes law enforcement Giglio Material. Such a list was previously lacking in scholarly literature and judicial precedents. While exploring new and expanded areas of disclosable police impeachment evidence, such as substance abuse and mental health issues, this article also proposes some logical limitations on this material.
It is my hope that this article can be used as both a finishing line and a starting point for law enforcement Giglio Material. It is a finishing line because it is the first attempt to aggregate and synthesize the discordant Giglio policies, laws, and precedent from around the nation. It is a starting point because it now permits the courts, legislators, scholars, and practitioners to begin to engage in a fully informed debate on this critical issue for the American criminal justice system. As always, the goal is to improve the system, ensure fairness for all, and increase the trust and respect of the public.
