Vol. 14 No. 15 – Brady v. Maryland – Attorney General’s Memo of November 2, 1999

“Brady v. Maryland” — Attorney General’s Memo of November 2, 1999

The California Attorney General recently issued a memo to all California District Attorneys stating that prosecutors do not have a duty to learn of exculpatory information which might be in the personnel file of an officer who is a material witness in a prosecution. This is, obviously, of great significance to all law enforcement in the state and, therefore, we are attaching it to this Client Alert Memo along with our comments.

First and foremost we must note that the opinion of the Attorney General, even though, it is not an “official” opinion (one which is published and able to be cited in cases), is still extremely important when issued, as was this one, to all District Attorneys. At the same time we have an obligation to our clients to inform you that we are confused with the opinion and, respectfully, disagree with its conclusion. We are providing this input for your information but, as we have stated continuously, all agencies must seek, and be guided by, advice from their own elected county District Attorneys as to the process they want law enforcement to follow regarding “Brady” material.

As you will note the Attorney General states, at the very start of his memo, that both the United States and California Supreme Courts have held that, pursuant to the cases of Kyles v. Whitley (1995) 514 U.S. 419 and In re Brown (1998) 17 Cal. 4th 873, “…the prosecution had a duty to learn of any favorable evidence known to others acting as part of the prosecution team (e.g., police agencies).@ Nonetheless, the A.G. goes on to conclude that such a duty does not extend to include a duty on the prosecutor “…to search the personnel files of any material-witness peace officer for potential exculpatory evidence.” This conclusion is based upon the A.G.’s determination that (1) the prosecutor cannot access the personnel files of a peace officer, as a result of restrictions in Penal Code section 832.7 and (2) the defendant can bring a “Pitchess” motion, pursuant to Evidence Code section 1043 to obtain potentially exculpatory material.

Our confusion is based upon two things: first, in a formal Opinion of the Attorney General from 1983, 66 Ops. Atty. Gen. 128, the A.G. opined that “…as long as the investigation of (the officer’s) conduct is part of the (prosecutor’s) duties … a district attorney need not follow the provisions of Evidence Code Section 1043 in obtaining access to the personnel records in question.” That formal opinion appears to contradict the conclusion in the current memo that a district attorney cannot access the officers’ files to look for exculpatory material

Secondly, the Supreme Courts have ruled, unequivocally, that a defendant need not even ask for “Brady” material; if it exists, the prosecutor has an obligation to provide it to the defendant. Since the defendant need not even make a “request” for such evidence, how can the defendant be required to prepare, submit and argue a formal motion to secure this material? Furthermore, the Courts have held that the burden to produce such evidence is on the prosecution and the responsibility cannot be delegated to any other entity … which would include the defendant. Since this is the holding of both Supreme Courts, the existence of a “Pitchess” motion would not appear to relieve the prosecutor of the duty to provide “Brady” material. United States v. Agurs (1976) 427 U.S. 97; In re Brown (1998) 17 Cal. 4th 873; Strickler v. Greene (1999) 119 S. Ct. 1936.

It must also be pointed out that a “Pitchess” motion is narrow in scope and the requirements under “Brady” are not. A defendant must be able to meet specific requirements to succeed under “Pitchess” (we are frequently able to defeat such motions for discovery) which do not apply to the mandate on the prosecution to disclose “Brady” material.

/ How does this effect your agency?

The memo from the Attorney General states that there is no duty on the part of the California District Attorneys “…to establish any expanded protocol for prosecutorial review of the personnel files of material-witness peace officers for exculpatory evidence.” It is not that such a protocol cannot be established between a law enforcement agency and the District Attorney -just that the D.A. has no duty to establish one. The D.A. acts as the advocate for law enforcement once it decides to prosecute cases brought to it by an agency. As such, the attorney (prosecutor) needs access to all relevant information held by the law enforcement agency which will assist it in deciding whether to prosecute and, if so, to successfully prosecute a case.

As we have stated in the past, we believe that law enforcement agencies should make error on the side of caution in order to avoid being the inadvertent cause of a conviction being reversed if a court ultimately determines that “Brady” material was withheld. This can be accomplished by consulting with the elected District Attorney of your county and securing guidance from him or her as to how you should handle “Brady” material, if it exists.

This is, obviously, a very sensitive and significant area of the law. In prior documents we set forth examples of procedures which would protect the right of privacy of the peace officers, the constitutional rights of the accused (as set forth by the United States and California Supreme Courts) and the obligations of the prosecution. The ultimate burden and responsibility, however, rests with the prosecutor and, therefore, direction must come from that source.

As always, if there are questions or you wish to discuss this issue in greater detail, please do not hesitate to call.