Potential Impeachment Disclosures - a Prosecutor’S Ethical Duty to Disclose

Potential Impeachment Disclosures - A Prosecutor’s Ethical Duty to Disclose

Tami A. Perdue Chief Prosecuting Attorney City of Kent WSAMA Spring Conference April 26-28, 2017

Introduction

Placing a police officer on a “Brady list” can be a career ending event the police officer. Once placed on “the list” an officer may be barred from testifying in court and/or their cases may be automatically declined at filing. This is tantamount to a career ending event for the officer. Given the magnitude of classifying an officer as a “Brady Officer”, prosecutors literally hold the career lives of officers in their hands when they are making a decision whether to place a police officer a “Brady” list. This label, once given, is near to impossible to redact, retract or remove from any officer and can have immense ramifications for the officer, the police department, the prosecutor, and the prosecutor’s office.

Prosecutors do not represent a client; we represent the citizens of our community. In reality, based on the nature of our job, we develop close working and often personal relationships with the police officers we work with. This relationship can become contentious when our ethical obligations under Brady require us to disclose uncomfortable information about a police officer we work with. If not from that police officer him or herself, then from the other police officer brethren on the force. Nonetheless, prosecutors have an absolute ethical obligation under Brady, RPC 3.8, the ABA Model Rules of Professional Conduct and the court rules to turn over any potential impeachment information to the defense in criminal prosecutions. This includes any information as it relates to the police officers we work with.

I. WHAT IS POTENTIAL IMPEACHMENT INFORMATION?

A. Potential impeachment information is generally defined as impeaching information which is material to the defense. This information may include but is not strictly limited to: (a) specific instances of conduct of a witness for the purpose of attacking the witness' credibility or character for truthfulness; (b) evidence in the form of opinion or reputation as to a witness' character for truthfulness; (c) prior inconsistent statements; and (d) information that may be used to suggest that a witness is biased. The exact parameters of potential impeachment information are not easily determined.

B. The only issue with respect to disclosure is whether the potential impeachment information would provide a plausible factual foundation for a cross-examination question. In answering this question, the prosecutor cannot disregard potential impeachment information solely because the prosecutor does not believe the truth of the allegations or does not believe the information is “material.”

C. The Ninth Circuit succinctly summarizes this principle as follows: A trial prosecutor's speculative prediction about the likely materiality of favorable

evidence, however, should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be "material" after trial. Thus, “there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge.” United States v. Agurs, 427 U.S. 97 (1976). As this court has noted, some trial courts therefore have concluded that the retrospective definition of materiality is appropriate only in the context of appellate review, and that trial prosecutors must disclose favorable information without attempting to predict whether its disclosure might affect the outcome of the trial. See Price, 566 F.3d at 913 n.14 (noting favorably “the thoughtful analysis set forth by two district courts in this circuit” on the matter and citing United States v. Acosta, 357 F. Supp. 2d 1228, 1239-40 (D. Nev. 2005) (“[T]he ‘materiality’ standard usually associated with Brady for pretrial discovery purposes . . . should not be applied to pretrial discovery of exculpatory materials.”), and United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1990) (The standard of whether evidence would have changed the outcome “is only appropriate, and thus applicable, in the context of appellate review. . . . [I]t obviously cannot be applied by a trial court facing a pretrial discovery request.”)). See also United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005) (“The prosecutor cannot be permitted to look at the case pretrial through the end of the telescope an appellate court would use post- trial. Thus, the government must always produce any potentially exculpatory or otherwise favorable evidence without regard to how the withholding of such evidence might be viewed — with the benefit of hindsight — as affecting the outcome of the trial.”). United States v. Olsen, 704 F.3d 1172, 1183 n. 3 (9th Cir. 2013).

D. The Washington Supreme Court further advises trial prosecutors are not relieved of the obligation to disclose impeachment evidence that might not reach the “materiality” threshold under Brady. While such suppression would not violate the constitution, it might well violate a prosecutor’s obligations under RPC 3.8(d). See State v. Davila, 184 Wn.2d 55, 79 n. 9 (2015).

II. CREATING A POLICY

A. Why A Prosecutor’s Office Needs A Policy

In no area has the prosecution’s obligation to disclose impeachment evidence been more difficult in its application than in the analysis of information regarding police officer conduct. A determination of whether allegations of police officer misconduct constitute potential impeachment evidence can be challenging. This challenge is compounded by the fact that at stake are not only the legitimate due process rights of the defendant, but also the legitimate privacy rights of, and career consequences to, the involved police officers. Because of the competing and critical needs, it is imperative that prosecutor’s offices create and adhere to a Potential Impeachment Disclosure Police as it relates to police officers. The creation of a policy will balance these interests, while

3 simultaneously ensuring compliance with our constitutional duty pursuant to the Brady rule and ethical duty under the Rules of Professional Conduct and our responsibility to fairly treat our partner police officers.

B. Washington Association of Prosecuting Attorney’s Policy In 2013 prosecutors in Washington State, through the Washington Association of Prosecuting Attorney’s, published a model policy for the handling of Brady material for officers. Although some prosecutor’s offices still use the term “Brady Cop”, many have adopted the model policy and the term "Potential Impeachment Disclosure" (PID) when referring to disclosure obligations involving a police officer.

The model policy was designed to achieve compliance with Brady requirements, and create state-wide uniformity in the way potential impeachment of recurring government witness issues are handled. According to the model policy, “All County deputy prosecuting attorneys are required to know and follow this protocol and all relevant law concerning potential impeachment of recurring government witness disclosure obligations.”

 http://70.89.120.146/wapa/materials/2013pidmodelpolicy.pdf

C. Washington Association of Sheriffs and Police Chiefs Policy

Originally published in 2009 revised in 2013, the WAPSC policy addresses potential impeachment disclosure information that may be in the possession of law enforcement agencies. It outlines the duty and procedure for providing Brady information to prosecutors.

 http://www.waspc.org/assets/ProfessionalServices/modelpolicies/poten tialimpeachmentdisclosurepolicyupdated2013.pdf

D. The Reality of Making Potential Impeachment Disclosures

1. The PID Standard depends on what a reasonable person could believe, not on what the prosecutor’s office or a law enforcement agency does believe.

2. Consequently, disclosure may be required in cases where the prosecutor’s office and/or the law enforcement agency believe that no misconduct occurred, if a reasonable person could draw a different conclusion.

3. If the prosecutor’s office concludes that an officer is subject to PID, that conclusion does not necessarily reflect a conclusion that the officer committed misconduct, or that the officer is not credible as a witness.

4. PID is about meeting the government’s obligation to disclose. It is NOT about making a determination on admissibility, or on an officer’s credibility, or employability.

5. A determination that disclosure is required is not a stipulation by the prosecution as to admissibility. In fact, it is not uncommon for the prosecution to make a disclosure of material to the defense, but then later argue for suppression or exclusion of that material at trial.

6. When the determination is questionable, the prosecution should submit the material to the court in camera for a determination on the disclosure obligation. If the defense believes there is material that is not being disclosed pursuant to Brady and its progeny, the defense should move the court for an in camera review of the material it believes exists and is not being disclosed.

7. If material is submitted for in camera review, it may or may not be disclosed by the court. As a result, the defense either obtains the requested material, or builds a record for any future appeal regarding what was not disclosed.

Ideally, every officer’s personnel record should be reviewed for disciplinary action predicated upon dishonesty or lack of candor. Information that could be used by a defendant to impeach the officer’s credibility should be released to the defendant in every case in which the officer may be a witness. Information that may not be admissible under ER 608(b) should be submitted for in camera review for a judge to decide whether the information needs to be disclosed pursuant to Brady.

Police union contracts cannot prevent the disclosure of Brady material as a defendant’s constitutional right is paramount. An officer’s privacy interest cannot prevent disclosure of disciplinary records as such records are considered to be of legitimate concern to the public. See, e.g. Dawson v. Daly, 120 Wn.2d 782, 795-96, 845 P.2d 995 (1993); Cowles Pub'g Co. v. State Patrol, 44 Wn. App. 882, 724 P.2d 379 (1986), rev'd on other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988). A settlement between the officer and his or her department that contains a confidentiality clause cannot prevent the prosecutor from making a PID. See Lackey v. Lewis County, 2009 U.S. Dist. LEXIS 94674, 2009 WL 3294848 (W.D. Wash. Oct. 9, 2009).

E. List of Common Potential Impeachment Disclosures related to Police Officers

1. Any information that tends to support the defendant’s pretrial constitutional motions or tends to show that defendant’s constitutional rights were violated. United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000); Nuckols v. Gibson, 233 F. 3d 1261 (10th Cir. 2000)

2. Inconsistent statements by the government witnesses regarding the facts of the crime of the alleged conduct of the defendant. Kyles, 514 U.S. at 445; United States v. Kohring, 637 F.3d 895, 906 (9th Cir. 2010)

3. Statements by others that are inconsistent with statements of government witnesses regarding the facts of the crime or alleged conduct of the defendant. Boyd v. United States, 908 A.2d 39, 54-56 (D.C. 2006)

4. Any information that relates to the potential mental or physical impairment of any witness. Silva v. Brown, 416 F.3d 980 984 (9th Cir 2005)

5. Other known conditions that could affect the witnesses’ bias such as: animosity toward defendant, animosity toward a group of which the defendant is a member or with which defendant is affiliated, relationship with the victim, known but uncharged criminal conduct.

6. Information that calls into questions efforts to present the witness as a neutral and disinterested. United States v. Kohring, 637 F.3d 895 (9th Cir. 2011); Schledwitz v. United States, 169 F.3d 1003, 1015-16 (6th Cir. 1999).

7. Acts of a witness that are probative of untruthfulness. United States v. Cuffie, 80 F.3d 514, 515 (D.C. Cir 1996)

8. Any information concerning a law enforcement officer’s misconduct and/or abuse of authority: United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973)

9. Officer lied, made racist comments, used excessive force, or had work issues.

10. Information contained in a police department file regarding an internal investigation of a particular officer can constitute Brady evidence if the investigation was based upon a finding of deception or dishonesty, racial or ethnic animus, chronic poor performance, and a number of other issues. Disclosure of the information is not dependent upon whether the officer was disciplined for the conduct. Disclosure of the information is not dependent upon whether the prosecuting attorney is even aware of the existence of the materials or of the investigation.

11. Information that an officer revealed to you “in confidence” as a friend that relates to issues that are Brady material.

F. Additional Considerations for Potential Impeachment Disclosures

A review of the case law regarding Brady material makes it clear that the law is expanding and will continue to expand the scope of discovery beyond what we now know as Brady material. Brady disclosure obligations at their heart deal with any information that may tend to negate of call into question the testimony of a witness, making the information material for impeachment purposes.

Although no case law is currently directly on point, keep an eye for the following areas of law to develop into potential impeachment disclosure areas:

1. Mental and Physical Health: depression and other mental health disorders are increasingly common across America. Police officers are no exception. The drugs some take to treat these issues may be very relevant to a particular officer’s ability to observe and recall a particular incident. Likewise, if an officer has been diagnosed and in need of medication, the absence of appropriate medication may also be relevant.

2. Evidence of prejudice towards a protected class: Prejudice and bias against a group of people can be very relevant to impeachment of an officer’s testimony. This kind of information can often be found in comments that officers make publicly on social media.

3. Performance Reports: Most government witnesses, including the State Crime Laboratory, are subject to regular performance testing and evaluations. Adverse or substandard performance reviews or evaluations are potentially very relevant to impeaching the testimony of a government witness.

4. Substance Abuse: If an officer was on drugs or alcohol, or dealing with a bad hangover, at the time of arrest, this information is very relevant to the officer’s ability to observe and recall an incident many months later at trial. As such, use/abuse of drugs or can be relevant information.

G. Cases of Interest

1. Lackey v. Lewis County, 2009 U.S. District LEXIS 94674; WL 3294848 Lewis County Sheriff’s Office conducted an internal investigation on Deputy Lackey. The result was a finding that the deputy had committed job related acts of dishonesty and other violations. Lackey was sent a letter sustaining the findings and separating his employment. He was also informed that the investigative report was being forwarded to the Lewis County Prosecutor for analysis under Brady. The Prosecutor in turn wrote a letter stating that based on the fact that there were sustained findings of dishonesty or untruthfulness, he was obligated to provide this information to defendants

7 and defense attorneys in every case in which Deputy Lackey was a witness. They Deputy was terminated, but appealed the terminated. A settlement was reached between the deputy and the Sheriff’s department. The agreement removed any reference to findings of dishonesty and stated the Sheriff’s letter to the prosecutor would be sealed in the police file. Lackey got a new job in Mason County pending a background check. The Lewis County Prosecutor became aware of the new job and sent Lackey a letter telling him he would be sending his Brady analysis letter to the Mason County prosecutor. Lackey was terminated from his new job. He sued Lewis County and the Lewis County Prosecutor for sharing the Brady information. The federal court dismissed all the claims.

The court ruled that it could “find no law prohibiting a prosecutor from sharing potentially exculpatory or impeaching evidence with prosecutors from another jurisdiction. Such a law would be antithetical to a prosecutor’s duty of disclosure mandated by Brady v. Maryland. The court further ruled that the officer had “failed to identify any law the recognizes a police officer’s right to a name-clearing hearing after a Brady determination has been made, or any law prohibiting a prosecutor from transmitting a Brady determination to another jurisdiction”

2. Doyle v. Lee, 166 Wn. App 397 (2012)

Deputy Doyle left his job at the Sierra County Sheriff’s Office after a settlement agreement dismissing a disciplinary action in lieu of resignation. The agreement stated Deputy Doyle could not apply for or accept any job with the County for five year. In 2007, Doyle is employed by the Moses Lake Police Department. In 2009, Doyle called the Moses Lake Police Department to report that his Sierra County employment records had been stolen. The police recovered and reviewed the documents. Based on the review, Moses Lake PD became aware that Doyle had a sustained finding of dishonesty. The information as passed on to the Grant County Prosecutor, Mr. Lee. Lee preliminarily determined the dishonesty finding and the supporting information was potential impeachment information that his office was required to disclose. Mr. Lee notified Officer Doyle to provide any information he wished prior to a final decision. Officer Doyle filed a preliminary injunction seeking an order prohibiting release of the information. The preliminary injunction was granted, but the court allowed the prosecutor to submit the material to the court in camera for review on cases where Doyle was a witness. Each criminal judge that reviewed the material ordered disclosure under Brady and Bagley. Mr. Lee moved for

summary judgment to remove the injunction and to dismiss the case. In affirming the trial court’s granting of Mr. Lee’s motions, the appellate court ruled “a sustained finding of dishonesty existed resulting in adverse consequences to Officer Doyle. Under Brady, a prosecutor is required to disclose exculpatory evidence, including an officer’s dishonesty . . . . Mr. Lee complied with the Brady mandates . . .”

III. THE BASIC BRADY RULE Brady is not a rule of technicality; it is a rule of fairness. Curry v. United States, 658 A. 2d 193, 197 (DC 1979)

Today, Brady and its progeny impose on the prosecution a “duty to learn of” and disclose to the defense all “favorable”, “material” information “known to the others acting on the governments behalf in the case, including the police”, a group commonly referred to as “the prosecution team.” Kyles v Whitely 514 U.S. 419, 437 (1995); Brady at 373 US at 87.

A criminal defendant has a constitutional due process right to receive all potentially exculpatory evidence, including potential impeachment information. Such evidence is generally referred to as “Brady evidence” in honor of the case that first recognized this constitutional right, Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution”

A criminal defendant’s right to Brady evidence is not dependent upon the severity of the crime with which he is charged, and is not dependent upon whether the defendant makes a specific request for Brady evidence. An individual who is charged with DUI has the same right as an individual who is charged with murder.

What constitutes Brady evidence is not limited to what is traditionally thought of as exculpatory evidence. To the contrary, Brady evidence can include impeachment evidence that demonstrates a witnesses’ bias, credibility, or uncertainty. See generally United States v. Bagley, 473 U.S. 667 (1985).

The prosecutor bears the primary responsibility of identifying and turning over Brady evidence. This obligation extends to evidence that is in the possession of the police, including information that the police have not disclosed to the prosecutor. See generally Kyles v. Whitley, 514 U.S. 419 (1995). This obligation continues long after the conviction has been obtained. In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 397 (1999).

IV. THE ETHICAL RULES

A. CrRLJ 4.7

1. CrRLJ 4.7(a)(1): Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting authority shall, upon written demand, disclose to the defendant the following material and information within his or her possession or control concerning:

2. CrRLJ 4.7(a)(1)(v): Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.

3. CrRLJ 4.7(a)(3): Except as otherwise provided as to protective orders, the prosecuting attorney shall disclose to defendant's counsel any material or information within the prosecuting attorney's knowledge which tends to negate defendant's guilt as to the offense charged.

4. CrRLJ 4.7(a)(4): The prosecuting attorney's obligation under this section is limited to material and information within the knowledge, possession, or control of members of the prosecuting attorney's staff.

5. CrRLJ 4.7(d): Upon defendant's request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant. If the prosecuting attorney's efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.

B. Professional Conduct - The Rules of Professional Conduct contain two rules exclusively for prosecutors that relate to the prosecutor’s obligations under Brady.

1. RPC 3.8(d) compels prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

A prosecutor’s obligations under RPC 3.8(d) are very similar to the disclosure obligations imposed by Constitutional Due Process. As such, failure to comply with the Brady obligations can result in negative licensing ramifications for a criminal prosecutor. The more knowing and willful a violation of this rule, the more negative the ramifications have been.

2. RPC 3.8(g) . Under RPC 3.8(g), when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted, defendant is innocent of the offense of which the defendant was convicted the prosecutor shall promptly disclose that evidence to an appropriate court or authority, and if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant unless a court authorizes delay, and make reasonable efforts to inquire into the matter, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter.

V. THE CASES

A. There are over 30,000 cases in the United States that discuss the government's obligation to provide exculpatory information to the defense. Every prosecutor should be familiar with at least the following cases.

1. Brady v. Maryland, 373 U.S. 83 (1963) (Prosecution violates a defendant’s due process rights by failing to turn over potentially exculpatory evidence). Petitioner and a companion were both convicted of first-degree murder and sentenced to death. The companion made a series of statements, one of which indicated that it was he, and not the petitioner, who actually committed the murder. Prosecutors turned over all of the companion’s statements except the one that exculpated the petitioner. Supreme Court held that suppression of evidence favorable to the accused by the prosecution violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

2. Giglio v. United States, 405 U.S 150 (1972) (Court clarified that impeachment evidence – evidence affecting the credibility of a witness – is Brady material and must be disclosed) A key witness against Petitioner testified at trial that he had not received a promise for leniency from the state in return for his testimony. Unbeknownst to the trial prosecutor, the witness had in fact received a promise for leniency from another prosecutor in the office. Petitioner discovered this and filed a motion for a new trial. The U.S. Supreme Court held that the prosecution was obligated to disclose to the defense any promise or expectation of leniency it offered to a witness. It clarified that the state’s Brady obligation extends to all

prosecutors in the office, and that it is up to such offices to create systems to ensure that such information is disclosed.

3. United States v. Agurs, 427 U.S. 97 (1976) (“The prudent prosecutor will resolve doubtful questions in favor of disclosure.”). Petitioner was convicted of murder after a trial in which he argued he had acted in self- defense. Subsequently petitioner sought a new trial because the state had failed to disclose the victim’s criminal record. The U.S. Supreme Court held that there was little difference between a general request by defense counsel for Brady material and the absence of a request altogether, and it found that prosecutors are obligated to turn over exculpatory evidence whether or not defense counsel asks for it.

4. United States v. Bagley, 473 U.S. 667 (1985) (Brady rule applies to impeachment evidence). Respondent was indicted on firearms and narcotics charges. Prior to trial, he requested that the prosecution disclose any “deals, promises, or inducements” made to witnesses in exchange for their testimony. The prosecution did not disclose that its two principal witnesses worked with the Bureau of Alcohol, Tobacco, and Firearms in an undercover investigation of respondent. Respondent sought a new trial under Brady v. Maryland. The U.S. Supreme Court again held that Brady requires disclosure of impeachment evidence. It also clarified the “materiality” prong of Brady. It said that a Brady violation occurs if the withheld evidence was “material” in the sense that there was a “reasonable probability” that its disclosure would have led to a different result in trial or sentencing. It explained that “reasonable probability” meant “a probability sufficient to undermine confidence in the outcome.”

5. Kyles v. Whitley, 514 U.S. 419 (1995) (The prosecutor bears the primary responsibility of identifying and turning over Brady evidence. The prosecutor’s obligation to turn over all exculpatory evidence extends to evidence that is in the possession of the police, including information that the police have not disclosed to the prosecutor. Petitioner was convicted of first-degree murder and sentenced to death. Prior to trial, police had collected eyewitness statements containing physical descriptions of the attacker which were inconsistent with characteristics of the petitioner. These statements were not disclosed to the defense. Post- trial petitioner argued that this evidence had been suppressed in violation of Brady. The U.S. Supreme Court agreed. It imposed an affirmative duty on prosecutors to become aware of and disclose any favorable evidence held by others acting on the government’s behalf, including the police. The Court also clarified the materiality standard. It said that a defendant is not required to show that had the withheld evidence been disclosed, more likely than not he would have been acquitted. It reiterated that instead, a defendant need only show that the undisclosed evidence “undermines

confidence” in the trial outcome.

6. United States v Sudikoff, 36 F. Supp. 2d 1196 (1999) (Brady requires disclosure of exculpatory information that is either admissible or is reasonably likely to lead to admissible evidence.) Defendants charged with violations. Criminal associate received immunity to testify. Defense counsel wanted all notes and other evidence from proffer sessions for the associate. Defense argues the evidence would show “bias, motive to lie or exaggerate, or dishonesty of the witness. Court held this type is evidence is clearly within the scope of Brady. This case analyzed Brady from a pre-trial discovery issue of reasonable likelihood to lead to admissible evidence vs. post-trial analysis of materiality.

7. United States v. Ruiz, 536 U.S. 622 (2002) (Impeachment information is special in relation to the fairness of the trial, not in respect to whether a plea is voluntary.) The Constitution does not require disclosure of impeachment information relating to any informants or other witnesses before entering into a binding plea agreement with a criminal defendant.

8. In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 397 n. 9 (1999) (Even after conviction, the prosecutor is required by the ethics of the office “to inform the appropriate authority of . . . information that casts doubt upon the correctness of the conviction.”). Defendant arrested for murder. Three inmates testified that the defendant made incriminating remarks to them. State turned over criminal histories and affidavits stating these witnesses were not compensated. Defense provides documentation stating one of the inmates had been paid for services in other cases. Defense says fourth inmate overheard two of the inmates say they were going to get back at the defendant over a poker debt. None of this information was known to the prosecutor. “While the prosecution cannot avoid Brady by keeping itself ignorant of matters known to other state agents, the state has no duty to search for exculpatory evidence.

9. State v. Copeland, 89 Wn. App. 492, 497-98 (1998) (A prosecutor must disclose prior criminal convictions of witnesses intended to be called for trial if that information is in the knowledge, control or possession of any member of the prosecution office, even where the deputy prosecutor on the case is not actually aware of the prior conviction of the witness).

10. State v. Garcia, 45 Wn. App. 132 (1986) (A prosecutor must disclose the substance of an eyewitness’ oral recantation and any prosecutor notes for an in camera review of the conversation even though the prosecutor did not believe the recantation). This rule also applies to non-lawyer support staff at a prosecutor’s office, such as victim/witness advocates and secretaries.

11. State v. Blackwell, 120 Wn.2d 822, 828 (1993) (If the defense can first show materiality, the burden shifts to the prosecution to attempt to obtain evidence held in an officer’s file). If the prosecution will not comply with a request for any information in a police officer’s file, a motion can be brought under Blackwell. However, filling public records request is often a quicker solution.

VI. WHAT CONSTITUTES FAVORABLE INFORMATION?

A. Favorable information is any information that the defense can use to assist in the defense either offensively or defensively:

1. Favorable information is any information that might help the defense attack the government’s case or mount an affirmative defense. In determining what must be disclosed under Brady “the [prosecution’s] guiding principle must be that the critical task of evaluating the usefulness and exculpatory value of the information is a matter primarily for defense counsel, who has a different perspective and interest from that of the police or prosecutor. Miller, 14 A.3d 1094, 1110 (D.C. 2011)(quoting Zanders v United States, 999 W.2d 163-64 (D.C. 2010)

2. Certain categories of information are listed below, but ultimately what is favorable to the defense in a case will be fact specific.

B. Favorable information encompasses “Exculpatory” and “Impeaching” information

1. The Court in Brady simply spoke of the duty to disclose information “favorable” to the defense. 33 U.S. at 87.

2. Subsequent decisions have referred to the duty to disclose exculpatory and impeaching information. See e.g. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Perez v United States, A.2d 39, 65 (D.C. 2009)(citing Strickler)

i. “Exculpatory” information is information “of any kind that would suggest to any prosecutor that the defense would want to know about it. Miller, 14 A. 3d at 1110. It typically refers to information that, in itself, tends to reduce the likelihood of guilt or bears favorably on culpability or some other component of punishment.

ii. “Impeachment” information typically refers to information that tends negatively to impact the credibility of a Government witness. Impeaching information may be case related (e.g. inconsistent statements about the same incident – which also may be

exculpatory) or witness specific (e.g., evidence of past dishonesty)

3. Exculpatory and Impeaching information are not strictly distinct categories. Lewis v. United States, 408 A.2d 303, 307 (D.C. 1979)

4. Brady encompasses ALL favorable information whether or not it is admissible at trial or even previously documented:

i. Although Brady itself uses the term “evidence”, the Brady doctrine encompasses any information, directly admissible or not, that would be favorable to the accused in preparing her defense, including information useful to preparation or investigation that may lead to admissible evidence or have some meaningful impact on defense strategy.

C. The following is a non-exhaustive list of sometimes overlapping categories of favorable information that may need to be turned over

1. Any information that tends to cast doubt on the defendant’s guilt with respect to any essential element in any charged count. Brady

2. Any physical evidence, testing, or reports tending to make guilt less likely. See e.g. Benn v. Lambert, 283 F.3d 1040, 1060 (9th Cir, 2002); Sawyer v. Hofbauer, 299 F.3d 605 (6th Cir.2002)

3. Any information regarding the failure of any witness to make a positive identification of a defendant. Shelton v. United States, 26 A.3d 216, 222 (D.C. 2001)

4. Any information that links someone other than the defendant to the crime. Miller, 14 A.3d at 1109, 1112.

5. Any information that tends to support an affirmative defense. Mahler v. Kaylo, 537 F. 3d 494, 500-01 (5th Cir. 2008)

6. Any information that tends to cast doubt on the admissibility of the government’s evidence. Gaither v. United States, 759 A.2d 655, 663 (D.C. 2003)

7. Any information that tends to support the defendant’s pretrial constitutional motions or tends to show that defendant’s constitutional rights were violated. United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000); Nuckols v. Gibson, 233 F. 3d 1261 (10th Cir. 2000)

8. Any information that tends to diminish culpability and/or support lesser punishment. Cone v. Bell, 129 S. Ct. 1769, 1783-86 (2009)

9. Inconsistent statements by the government witnesses regarding the facts of the crime of the alleged conduct of the defendant. Kyles, 514 U.S. at 445; United States v. Kohring, 637 F.3d 895, 906 (9th Cir. 2010)

10. Statements by others that are inconsistent with statements of government witnesses regarding the facts of the crime or alleged conduct of the defendant. Boyd v. United States, 908 A.2d 39, 54-56 (D.C. 2006)).

11. Any information that relates to the potential mental or physical impairment of any witness. Silva v. Brown, 416 F.3d 980 984 (9th Cir 2005)

12. Any information relating to potential witness bias, including:

ii. Benefits received by a witness. Banks v. Dretke, 540 U.S. 668, 702-03 (2004); Giglio v. United States, 405 U.S. 150 (1972).

iii. Other known conditions that could affect the witnesses’ bias such as: animosity toward defendant, animosity toward a group of which the defendant is a member or with which defendant is affiliated, relationship with the victim, known but uncharged criminal conduct.

iv. Information that calls into questions efforts to present the witness as a neutral and disinterested. United States v. Kohring, 637 F.3d 895 (9th Cir. 2011); Schledwitz v. United States, 169 F.3d 1003, 1015-16 (6th Cir. 1999).

v. Impeachment information that officers or others had “fed’ parts of a witness’s story to the witness during questioning. Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012)

13. Any information related to a witness’ dishonesty and/or criminality.

vi. Acts of a witness that are probative of untruthfulness. United States v. Cuffie, 80 F.3d 514, 515 (D.C. Cir 1996)

vii. A copy of any criminal record of any witness, including witness’s prison records and probation records, as well as a written description of any criminal cases pending against any witnesses. Lewis v. United States, 408 A.2d 303 (D.C. 1978).

14. Letters from witnesses and notes from detective tending to undercut credibility/memory Strickler v. Green 527 U.S. 263 (1999)

15. Government information criticizing the integrity of the confidential informant. United States v. Brumel-Alvarez, 976 F.2d 1235 (1992)

16. Prosecutor’s interview notes of a government witness to the extent they contain evidence of conflicting statements by the witnesses. United States v. Service Deli, Inc. 151 F.3d 938 (1998)