Prosecutors Failing Constitutional Duty to Disclose Police Officer MisconductOctober 21, 2019

A USA Today investigation found that prosecutors across the country are failing to disclose details about dishonest or untrustworthy police officers.

Prosecutors are required by law to tell anyone accused of a crime about all evidence that might help their defense. Information about police officers that could raise questions about their honesty and reliability as witnesses, such as whether they have committed a crime, lied on the job, or been disciplined for misconduct, must be disclosed to defendants.

To fulfill their duty to know and disclose the backgrounds of officers they rely on, prosecutors should create a list of officers with credibility problems. The lists are called "Brady lists" because the Supreme Court announced the disclosure rule in a case called Brady v. Maryland.

Reporters for USA Today spent more than a year gathering Brady lists to measure how well prosecutors in thousands of counties are complying with the law. They found that at least 300 prosecutors' offices do not have a list tracking dishonest or untrustworthy police officers.

In many places that do have lists, they're not public, and many lists are incomplete. USA Today identified at least 1,200 officers with proven histories of lying and other serious misconduct who were not on prosecutors' lists.

As a result, USA Today reported, thousands of people have faced criminal charges or gone to prison based in part on testimony from police officers found to have credibility problems. In Little Rock, Arkansas, alone, USA Today's analysis of police discipline files and court records found officers who the department determined lied or committed crimes were witnesses in at least 4,000 cases. 

The consequences of prosecutors' failure to track and disclose unreliable police witnesses are striking. Since 1988, data from the National Registry of Exonerations shows 987 people were wrongly convicted because of official misconduct by prosecutors and perjury or a false report by police and other witnesses. They spent an average of 12 years each in prison. 

A record number of exonerations in 2018 involved misconduct by police or prosecutors.

Some newly elected prosecutors are prioritizing Brady compliance, USA Today reports. A training manual in the Philadelphia District Attorney's Office states that the general rule is "Disclose. Disclose. Disclose."

And in Baltimore, State's Attorney Marilyn Mosby appointed a "criminal discovery liaison" to obtain and disclose officers' internal affairs files in order to increase trust and transparency after police corruption scandals and the death of Freddie Gray in police custody. Ms. Mosby's office has asked courts to vacate nearly 800 convictions that involved testimony or investigations by 25 Baltimore police officers charged with misconduct.