Principles for Public Safety Employment

4. T HE B RADY R ULE In 1963, the United States Supreme Court rendered a decision, 451 which, of late, has received increasing attention from law enforcement and prosecutorial agencies throughout the State. The following defines what constitutes so-called Brady material and the impact of Brady on a public safety department’s operations. a. The Brady Rule Defined The prosecution owes an affirmative duty to a criminal defendant to disclose evidence which is favorable to the defendant and which is material to the guilt and/or punishment of the defendant. 452 A violation of this obligation is a violation of the criminal defendant’s “due process” rights regardless of the good faith or bad faith of the prosecutor. b. What is Brady Material? i. “Material” Evidence Evidence is considered material for purposes of the Brady rule if there is a reasonable probability that, if the evidence was disclosed, the result of the proceeding would have been different. 453 ii. Impeachment Evidence Impeachment evidence falls within the Brady rule. Such evidence is considered evidence favorable to the defendant. 454 Thus, peace officer personnel records which could be used to impeach a peace officer may constitute Brady material. 455 iii. Law Enforcement Records The prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in a case, including the police. 456 iv. Unknown Whether Required to “Run a Rap Sheet” In People v. Coleman , 457 the Court of Appeal held that a criminal defendant was not entitled under Brady to compel the prosecution to “run a rap sheet” (compile a criminal history) of police officer witnesses. That decision held prosecution needs a mechanism for ensuring that they learn of Brady material in its constructive possession, but that mechanism is not generally subject to supervision by the courts. The California Supreme Court has granted review and therefore the Court of Appeal decision is currently not good law. c. Interplay Between Brady and Pitchess Even if no request is made by the defense, the prosecution still owes a duty to disclose Brady material. 458 However, as held by the California Supreme Court in People v. Superior Court (Johnson) , 459 the prosecution may not view peace officer personnel records without an order pursuant to a Pitchess motion even to comply with Brady . The Court held that the prosecution is not required to conduct a defendant’s investigation for him or her, or to do what the defense can do for itself. The prosecution is only required to share with a defendant any information it has regarding whether the personnel records contain Brady material. The defense can then decide whether it wants to file a Pitchess motion. In this case,

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