1811 Magazine — Summer 2011
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The Increased Focus By U.S. Attorneys On Giglio Issues
Lawrence Berger

Recent Federal Court decisions (for example, the Brady issues raised in the Senator Stevens prosecution) have faulted some U.S. Attorney’s offices for not being vigilant enough about Brady disclosure. This has resulted in more aggressive and overbroad efforts by various USAO’s to harvest any and all disciplinary records of Federal Law Enforcement officers who are potential witnesses in suppression hearings as well as trial. In many cases, the USAO inquiries are intrusive, overbroad, and considerably outside the scope of the substantive and procedural requirements of Brady. What follows is a short primer on the parameters of such disclosure as it relates to witnesses.

Pursuant to the Department of Justice policy regarding the disclosure to prosecutors of potential impeachment information concerning law enforcement agency witnesses, dated December 9, 1996 (“Giglio Policy” Giglio v. United States, 405 U.S. 150 (1972); it is an expectation of the Department of Justice that a prosecutor (Federal or State) will be able to obtain all potential impeachment information directly from potential law enforcement agency witnesses and/or affiants. The Giglio Policy imposes upon each potential law enforcement agency witness, at a minimum, the obligation to inform prosecutors with whom they work of potential impeachment information, that is, specific instances of prior conduct of the witness that is probative of truthfulness or untruthfulness (see e.g. Federal Rules of Evidence 608(b)), as “early as possible” under the following circumstances:

1. Prior to providing a sworn statement in any criminal investigation or case; and

2. Prior to providing testimony in any criminal investigation or case.

Based upon the disclosure goals of the Giglio Policy, which are intended to enable a prosecutor to obtain all potential impeachment information from the law enforcement agency witness “as early as possible,” disclosure of potential impeachment information should also be effected at a time when the witness is first aware that what the witness sees or hears during the course of a criminal investigation could potentially be material to the guilt of the individual or entity subject to the investigation and the witness can anticipate that some time in the future the witness will in all likelihood provide a sworn statement or testimony in the criminal investigation or case. There is no bright line rule for timing of disclosure. The exact parameters of potential impeachment information are not easily determined and must be individually assessed on a case-by-case basis. However, impeachment information is confined to administrative or court findings of prior acts which bear on truthfulness or credibility. Obvious categories include findings of lack of candor or false statement, integrity type crimes such as theft, conversion or even discriminatory (race, gender, age) biases. There is a broad range of misconduct which do not arise to impeachment information such as misuse of vehicle, performance issues, loss of equipment etc., which have no materiality to credibility, and should not be subject to Brady type disclosure. One developing issue is whether those employees who are under investigation for misconduct that potentially reflects on the truthfulness or bias are obliged to disclose that fact, that is, the mere allegation in the absence of a finding of misconduct, to any prosecutor.

According to the Giglio Policy, mere allegations that cannot be substantiated, are not credible, or have resulted in the exoneration of an employee generally, are not considered to be potential impeachment information. Despite this general exemption from disclosure, the Giglio Policy does provide that upon request of a prosecutor (in contrast to a witness’ self-disclosure) and despite the lack of substantiation or credibility of the allegation or exoneration of the employee, disclosure will be provided under the following circumstances:

a. a Court decision in the district where the investigation or case is being pursued requires disclosure and the prosecutor advises the Agency of this fact;

b. the allegation was made by a federal prosecutor or judge;

c. the allegation receivedpu blicity; and

d. when the prosecutor and agency official agree that disclosure is appropriate based upon exceptional circumstances or when disclosure is otherwise deemed appropriate by the agency.

The Agency is responsible for advising the prosecutor whether any allegation is unsubstantiated, not credible, or resulted in the employee’s exoneration. If an agency fails to adhere to this affirmative duty of disclosure of exoneration or if a USAO insists upon disclosing the details of an investigation which resulted in exoneration to a defendant, both the Agency or the USAO, as the case may be, may run afoul of the Privacy Act (5 U.S.C. Section 552a) which prohibits any andall information (garnered from pursuing in official business of the Agency, including the details of an internal investigation) from disclosure to third parties unless a specific rule authorizes the disclosure. An agency has an obligation under the Privacy Act to maintain accurate records andif a recordof an exonerated employee is not accurately maintained, which would include the requirement to maintain accuracy by informing a USAO of exoneration where an agency previously disclosed to the USAO of the fact of the internal investigation, the agency could face Privacy Act liability. Likewise, disclosure by an agency of mere allegations of misconduct which bears on truthfulness which are not “credible” would violate the Giglio Policy, and hence constitute a prohibited disclosure under the Privacy Act. A blanket rule of disclosure by an agency of such allegations regardless of the credibility of the allegation would be improvident in my view.

It follows that a USAO which insists on disclosure to a defendant of the investigative file of an exonerated employee (that is, where there is no finding of misconduct which bears on truthfulness by the internal affairs investigative unit or after adverse action procedures result in unsubstantiatedch arges) wouldv iolate the Privacy Act to the detriment of the involved employee since such disclosure would not be required under established constitutional (Brady-Giglio) substantive or procedural law. Only prior acts which bear on truthfulness are subject to disclosure to a USAO or defendant, and an exonerated employee is not in that category.

There is no doubt that Privacy Act lawsuits are in the offing to protect the reputation andin tegrity of agents who are victimizedb y malicious or non-credible allegations of misconduct which further exacerbates the harm when agencies and USAO’s carelessly and casually pass this information onto defendants. The next article will address how an agent should honestly and transparently address information provided to a defendant when confronted with “impeachment” questions on the witness stand, especially when such information should not have been disclosed in the first place.

In addition, unique issues arise when an agent, who is a witness in a suppression hearing or trial, is found to be not “credible” by a judge or magistrate. (This couldappl y to non-official matters such as matrimonial, child custody cases, and other types of court proceedings dealing with off-duty matters). The witness is not represented by counsel while the witness gives testimony and has no opportunity to address in a comprehensive manner relevant issues, but rather, must passively answer questions put to the witness by counsel. A potential witness shouldbe well prepared for testifying. This will also be addressed in a later column.