In 1963, the US Supreme Court ruled (quite correctly) in Brady v. Maryland that any and all evidence collected and/or held by the state in a prosecution is to be passed on to the defense. To fail to forward all of it to the defense would result in a lack of due process, which at the minimum would guarantee that the defendant's case would be dismissed. Over the years, this has come to some interesting ends. For one thing-- if an officer investigating a criminal case takes 32 photographs of the exact same thing, but only 1 of the pictures is in focus, all 32 still must be included in the case file turned over to the defense. The thought is that the first or the 31st picture might well have contained a shred of evidence which would have led toward the defendant's case.
For a prosecutor to possess information which could be exculpatory and not turn it over is not only grounds for dismissal of a case, it is grounds for civil, administrative, and even criminal sanction against the prosecutor himself.
This led to Brady Lists.
Occasionally, there are times when what the state's witness on the stand testifies to and what the prosecutor knows to be true don't line up. Maybe the witness was in error. Maybe the prosecutor's grasp of the facts were in error. Maybe a document which the prosecutor briefed himself with was in error. Or, sometimes, the witness just lied. When the prosecutor knows that a witness doesn't tell the truth on the stand, he cannot in good conscience put that officer on the stand again. Over the years, it became a practice for district attorneys to draw up forms which they had their Assistant D.A.'s fill out about questionable police witnesses. If an officer's name was on the Brady List at a DA's office, then the DA would either look for another officer with knowledge of the case to testify, or would dismiss the case. Presumably, they would also consider turning over their knowledge of the officer's alleged misdeed to the defense, if they had to go forth with the case. But it didn't happen, because those lists were kept secret for a long while.
Until recently. Dallas County's list was just published, and Tarrant County just sent out disclosures about their lists to a bunch of defendants.
So it was that, a couple of weeks ago, my chief sent me a text:
"See the local paper's article [about the existence of Brady lists in our county DA's office]. Let me know if you think I should contact the DA office."I immediately replied:
"Yes. You should. If we have an officer on staff whom our DA has deemed untrustworthy enough not to back, you need to know about it. Even as uncomfortable a topic as that is to contemplate."I went on to assure him that I doubted that we had anything to worry about.
I promptly forgot about the conversation until Friday, when the chief called me in and asked me with a stony face whether I had been worried about what the DA would say. I told him, quite honestly, that I hadn't been. I know that I rely on the other men in my department, and I know who they are, and know that they would not fudge the truth, even when it damns them. I would bet my life on it.
He smiled and told me that none of our officers in our small (less than 10 man) department was on the list, and that ours was one of the only departments in the county without a person on the list. I smiled with pride at the first part, but was a bit saddened and a little shocked by the second part of that sentence.
I have heard that some of these lists got combined with grading lists on whether the officer was a good testifier (Did he speak clearly, did he stumble over words, did he seem unsure of himself or frightened of the courtroom? Did he wear an inappropriate tie?), and thus it could turn out that an officer on such a list might have made only the error of being a shy person with bad taste in tropical neck apparel. I don't know if that is true or not. I do know that these lists are made and added to by young prosecutors who don't have to prove up their case. While some police unions and advocacy groups have questioned them, however, they have been upheld by courts. Getting one's name on such a list, ironically enough, brings up the whole question of due process again (which is how the whole Brady issue got started.). So, the best thing for an officer to do is to avoid all appearances of impropriety, and state only that which is known, and never, ever, EVER try to "wing it."
Okay, I'll admit that I'm a little bit proud of my department. But I'm not going to break my arm patting ourselves on the back about it.