In recent years, the District Attorney’s Office has received public record requests for so-called “Brady Lists” (sometimes referred to as “Brady/Giglio Lists”). The creation and maintenance of such lists are not required under Massachusetts law. The following questions and answers are provided to assist in understanding this issue.
- What are Brady Lists?
Some law enforcement agencies compile lists of names in an effort to track various forms of misconduct by police officers. Prosecutors use these lists to determine whether they should deem listed officers as unqualified to serve as witnesses due to damaged credibility. Practices vary widely throughout the country. Presently, there are no Massachusetts procedural or substantive standards for inclusion on a Brady List.
- Is the Worcester District Attorney’s Office required by law to maintain a Brady List?
No. The Supreme Court cases of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), are often cited as the genesis for the so-called Brady List or Brady/Giglio List. Those cases, however, do not mandate the creation of any such list and do not even reference such a list. In both cases, the Supreme Court actually addressed the conduct of a prosecutor, not a police officer. In Brady, the Supreme Court concluded: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. Similarly, in Giglio, the Supreme Court concluded that the prosecution failed to disclose that it promised a witness “that he would not be prosecuted if he cooperated with the government.” Giglio, 405 U.S. at 153.
- If it does not maintain a list, does the Worcester District Attorney’s Office disclose evidence of police misconduct?
Yes. When the District Attorney’s Office learns of any information favorable to the accused (including misconduct or the reliability of a given witness), such information is immediately disclosed to the defense, and in some instances to the court. In some cases, the District Attorney’s Office takes unilateral action by dismissing a case if the evidence of misconduct or unreliability is manifest. Such disclosures are handled every day on a case-by-case basis under the Massachusetts Rules of Criminal Procedure as well as state and federal appellate decisions. The regularity of such disclosures should not be misunderstood to conclude there is widespread misconduct. To the contrary, the disclosure obligation sweeps very broadly and includes not just instances of suspected misconduct, but also any information that may be helpful to the accused. Also, this obligation is not limited to police witnesses and includes all witnesses.
- Why doesn’t the District Attorney’s Office simply keep track of all the disclosures in the form of a list?
Creation of such a list would be impractical. The broad sweep of disclosures encompasses countless instances that do not rise to the level of misconduct. For example, a prosecutor may learn from discussing the case with an officer that the officer’s memory is not consistent with a police report. Such disclosures are frequent because reports can be written many years before a trial, and memories can fade. This is not misconduct, but it must be disclosed to the defense.
Creation of such a list would be misleading. For example, a defendant’s testimony may directly contradict a police officer’s testimony. Someone might view such a contradiction as evidence of a lie. While this is possible, it is also possible that one or both witnesses were innocently mistaken, or it is possible that both witnesses saw the same event from different viewpoints and testified truthfully. Our jury system is designed to ferret out the truth by testing the believability of witness testimony. A lack of believability is not, standing alone, proof of misconduct.
Creation of such a list implicates constitutional protection for the accused officer. Before creating a list that would impair an officer’s employment status, a government agency must provide the officer with an opportunity to be heard and apply identifiable standards for determination. Due process rights are implicated whenever the government impairs a person’s “opportunity to engage at all in a particular occupation, or a particular aspect of an occupation.” Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 496 (1965) (emphasis added). Due process of law mandates the exercise of sound discretion only “after fair investigation, with such a notice, hearing and opportunity to answer.” Goldsmith v. U.S. Board of Tax Appeals, 270 U.S. 117, 123 (1926). “[P]rocedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.” Willner v. Committee on Character and Fitness, 373 U.S. 96, 103 (1963). Presently, there are no Massachusetts procedural or substantive standards for inclusion on a Brady List.
- Does the District Attorney’s Office have a system in place to monitor potential problems with police witnesses?
Yes. The District Attorney’s Office takes a series of sequential steps to protect the integrity of its prosecutions. These sequential steps include, but are not limited to, the following: (1) police departments are regularly asked to update a Witness Availability Form; (2) prosecutors are notified of any responses from police departments regarding witness availability issues; (3) the DAMION database is regularly updated to note availability issues with officers and civilian employees; (4) an attempt to summons a witness through the DAMION database will alert the prosecutor of a possible witness availability issue; (5) when preparing witnesses to testify, prosecutors inquire about the availability issues listed on the form; and (6) defense counsel and/or courts are notified of any witness availability issues well in advance of court testimony.
Note that disclosure of this information to the defense does not equate with a determination that an officer cannot testify at a hearing or trial. Evidentiary issues must be evaluated on a case-by-case basis. The Supreme Judicial Court has cautioned that prior misconduct must be material: “whether the prior misconduct is probative of how the officer conducts police investigations, a judge may consider whether the misconduct reflects a willingness to lie to win a conviction or instead involves matters that, although serious, do not bear on the integrity of police investigations.” Matter of Grand Jury Investigation, 485 Mass. 641, 652 (2020).
- What information does the Witness Availability Form track?
The Witness Availability Form tracks 10 broad categories of information: (1) convicted of any crime (or found delinquent) within last 5 years; (2) charged in a pending criminal case; (3) entered into a pending “last chance agreement” with department; (4) lied to conceal a police officer’s unlawful use of excessive force; (5) lied about a defendant’s conduct and allowed a false or inflated criminal charge to be prosecuted; (6) failed a proficiency test; (7) demonstrated incompetence, lack of reliability, or lack of credibility; (8) maintained familial or similar personal relationship with employee in prosecuting office; (9) discharged or placed on limited duty status; and (10) rendered unavailable for duty because of protracted injury, illness, military deployment, retirement, or family leave.