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Limiting The Effects Of Brady
By: Dieter C.
Dammeier
LACKIE & DAMMEIER LLP
The California Supreme Court has recently
reaffirmed the definition of exculpatory or impeachment evidence that is
“material” in a criminal defendant’s case. City of Los Angeles v. The
Superior Court (Brandon) (2002) 29 Cal. 4th 1. The
materiality requirement propounded by the Supreme Court in Brandon
is assisting to turn the tide in regard to opinions on Brady effects on
police officers careers. Some police administrators use Brady as an
excuse to impose excessive disciplinary action against officers where they
claim that because of Brady, the officer is no longer useful to the
Department. The facts in the Brandon case involve an officer who,
ten years earlier, received a sustained complaint that the officer failed
to report his partner’s excessive use of force. The Supreme Court in the
Brandon, which involved a criminal defendant charged with lude
conduct with a seven year old boy, indicated that it was “not reasonably
probable that a ten year old complaint of failing to report another
officer’s improper use of mace would alter the outcome of the defendant’s
trial.” Id. At p. 16 Another example involves a California
Highway Patrol Officer who had “irregularities” involving his time card
investigated by his agency. A California Court of Appeals held that
“evidence of time card irregularities would not establish a habit or
custom or reputation for making false police reports.” California
Highway Patrol v. Superior Court (2000) 101 Cal.Rptr.2d 379, 389.
While there is no fine line between what is and what is not Brady
material, based on recent court decisions, not all police misconduct
involving credibility give rise to Brady implications, as some police
administrators would suggest.
An example would be an officer who lied to a
supervisor about a reason for being late to briefing. Since the officer
is not lying on a police report or lying about evidence in a case, such
conduct does not rise to the level of ”materiality” for Brady purposes.
When you think about it, lying to a supervisor and lying to a fellow
officer or even to a friend all equally impact on the capacity for
honesty. The only difference involves administrative misconduct charges
where lying to a supervisor is involved. Looking at the issue in a
criminal trial context, unless it is shown that you have a habit or custom
of lying, neither rises to the level of being “material” to the
defendant’s guilt or innocence.
One issue is clear, Brady
is here to stay. While it is expected the Courts and to some extent the
legislature, will limit the impact of Brady on officer’s careers, officers
as well as police administrators should be watchful and take whatever
actions are available to limit exposure in this area. One such avenue
involves the destruction of material in officer’s personnel files
involving misconduct. As most officers know, Penal Code §832.5(b)
requires the retention of citizen’s complaints for at least a five-year
period. Many if not most law enforcement agencies have a policy of
routinely destroying citizen complaints after five years. It is highly
recommended that POA’s, where such destruction does not occur, negotiate
such an issue into their next MOU. The California Supreme Court in
Brandon indicated that where an agency does routinely destroy records
after five years there is no constitutional violation.
About the Author; Dieter
Dammeier is a LDF Panel Attorney and partner at Lackie & Dammeier LLP,
representing police associations in labor and disciplinary matters
throughout California.
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