On May 13, 2002, this office issued a comprehensive Brady policy set forth in
Special Directive 02-04 and Special Directive 02-05. At that time, the Brady
Alert System was being developed. In the intervening time, the U.S. Supreme
Court and California Supreme Court have given us additional guidance through
In order to ensure uniformity and consistency in meeting constitutionally
required discovery obligations under Brady v. Maryland (1963) 373 U.S.
83, the Brady Compliance Division will coordinate and make available to deputy
district attorneys known Brady information on peace officers and governmentally
employed expert witnesses who are part of the "prosecution team."1
The Brady Compliance Division will be the central repository of such known Brady
information and is charged with answering any Brady questions that might arise.
Subject to any future changes in the law, this Special Directive sets forth the
office policy for handling these discovery obligations. This policy was
carefully drafted to protect the statutory and privacy rights of police officers
while fulfilling prosecutorial obligations.
I. WHAT IS REQUIRED UNDER BRADY
Prosecutors are required to disclose to the defense evidence favorable to
a defendant which is either exculpatory or impeaching and is
material to either guilt or punishment. Evidence is
"favorable" to the defendant if it either helps the defendant or hurts the
prosecution. (In re Sassounian (1995) 9 Cal.4th 535, 543-544.) In
Strickler v. Greene (1999) 527 U.S. 203, 280-281, the United States
Supreme Court stated:
In Brady this Court held "that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." Brady v. Maryland, supra,
373 U.S. at 87. We have since held that the duty to disclose such evidence is
applicable even though there has been no request by the accused, [United
States v. Agurs (1976) 427 U.S. 97, 107], and that the duty encompasses
impeachment evidence as well as exculpatory evidence, [United States v.
Bagley, (1985) 473 U.S. 667, 676]. Such evidence is material "if there is
a reasonable probability that had the evidence been disclosed to the defense,
the result of the proceeding would have been different." Id at 682; see also [Kyles
v. Whitley (1995) 514 U.S. 419, 433-434].
In order to ensure compliance with these rules, the United States Supreme
Court on more than one occasion has urged the "careful prosecutor" to err on the
side of disclosure. (Kyles v. Whitley, supra, 514 U.S. 419, 440;
United States. v. Agurs, supra, 427 U.S. 97, 110.)
A. Material Evidence
The definition of "material evidence" is generally provided in the context of
an appeal from a conviction. Evidence is material if there is a reasonable
probability that the result of the proceeding would have been different had the
evidence been disclosed. A reasonable probability of a different outcome is
shown where suppression undermines confidence in the outcome. Such evidence must
have a specific, plausible connection to the case, and must demonstrate more
than minor inaccuracies. (Kyles v. Whitley, supra; U.S. v. Bagley,
supra; People v. Padilla (1995) 11 Cal. 4th 891, 929-32; People v.
Clark (1992) 3 Cal. 4th 41, 133-34.)
However, as prosecutors we must determine what Brady evidence there may be
before trial. In making this assessment, the deputy shall utilize the above
B. Exculpatory Evidence
Exculpatory evidence is evidence favorable to the defendant and material to
the issue of guilt or punishment.
C. Impeachment Evidence
Evidence Code section 780 states in part that:
Except as otherwise provided by statute, the court or jury may consider in
determining the credibility of a witness any matter that has any tendency in
reason to prove or disprove the truthfulness of his testimony at the hearing
including, but not limited to, any of the following:
* * *
(e) His character for honesty or veracity or
(f) The existence or nonexistence of a bias, interest or other
(h) A statement made by him that is inconsistent with any part of
his testimony at the hearing. (Emphasis added.)
CALJIC No. 2.20 (2000 rev.) incorporates the above listed factors and adds
conviction of a felony and past criminal conduct of a witness amounting to a
misdemeanor as well as several other considerations. If impeachment evidence is
based upon the prior commission of a crime, the crime must involve moral
turpitude to be admissible. (People v. Castro (1985) 38 Cal.3d 301, 314
[felonies]; People v. Wheeler (1992) 4 Cal.4th 284, 295-297 [misdemeanor
Further examples of possible impeachment evidence of a material witness
1. False reports by a prosecution witness (People v. Hayes (1992) 3
Cal. App. 4th 1238, 1244);
2. Pending criminal charges against a prosecution witness (People v. Coyer
(1983) 142 Cal.App.3d 839, 842);
3. Parole or probation status of the witness (Davis v. Alaska (1974)
415 U.S. 308, 319; People v. Price (1991) 1 Cal.4th 324, 486);
4. Evidence contradicting a prosecution witness’ statements or reports (People
v. Boyd (1990) 222 Cal.App.3d 541, 568-569);
5. Evidence undermining a prosecution witness’ expertise (e.g., inaccurate
statements) (People v. Garcia (1993) 17 Cal.App.4th 1169, 1179);
6. A finding of misconduct by a Board of Rights or Civil Service Commission,
that reflects on the witness’ truthfulness, bias or moral turpitude (cf.
People v. Wheeler, supra, 4 Cal.4th at p. 293) (Note that the burden
of proof in an administrative hearing is preponderance of the evidence);
7. Evidence that a witness has a reputation for untruthfulness (3 Witkin Cal.
Evid., 4th Ed., § 288-290);
8. Evidence that a witness has a racial, religious or personal bias against
the defendant individually or as a member of a group (In re Anthony P.
(1985) 167 Cal.App.3d 502, 507-510); or
9. Promises, offers or inducements to the witnesses, including a grant of
immunity (United States v. Bagley, supra, 473 U.S. 667, 676-677;
Giglio v. United States (1972) 405 U.S. 150, 153-155).
A thorough review of all other types of information must be made before a
determination is reached that evidence concerning the credibility of a material
prosecution witness is impeachment evidence.
D. What is not Brady material
Allegations that cannot be substantiated, are not credible, or have been
determined to be unfounded are not considered impeachment material and therefore
will not be included in the Brady Alert System. (Please refer to section III
below.) The prosecution has no obligation to communicate preliminary, challenged
or speculative information. (United States v. Agurs, supra, 427
U.S. 97, 109, fn. 16.) Pending criminal or administrative investigations are
considered preliminary in nature.
If a deputy has any question whether information falls within Brady, the
Brady Compliance Division will be available for consultation.
II. PROCEDURES FOR NOTIFYING THE BRADY COMPLIANCE DIVISION OF POTENTIAL BRADY
If a deputy is aware or becomes aware of potential Brady information, the
deputy shall inform his or her Head Deputy or Deputy-in-Charge. If the Head
Deputy or Deputy-in-Charge concurs with the deputy that the information is
potential Brady material, a memorandum shall be written summarizing the material
and setting forth why the supervisor and the deputy believe that Brady material
exists. (If the Head Deputy or Deputy-in-Charge does not agree with the deputy,
please refer to section IV D below.)
If it is believed that the conduct amounts to a crime, the memorandum and
copies of all supporting evidence and relevant documentation (such as
transcripts, disposition reports, police reports or expert reports) shall be
forwarded to both the Brady Compliance Division and the Justice System Integrity
Division (JSID). (See Special Directive 01-10.) JSID will either conduct an
independent investigation or refer the matter to the employee’s agency for
investigation. JSID shall be responsible for monitoring the status of such
investigation and encouraging a timely response from the agency.
If the discovered information is other than a potential crime, the memorandum
and copies of all supporting evidence and relevant documentation shall be sent
directly to the Brady Compliance Division. The Brady Compliance Division will
refer the matter to the employee's agency for investigation.
III. BRADY ALERT SYSTEM
The Brady Compliance Division will maintain a computer-based "Brady Alert
System." The system includes both known historical and current Brady
information. This system will not create secondary personnel files
on police officers or governmentally employed experts. The only information from
an employee’s personnel file to be included in the system is that which is
received pursuant to a Pitchess motion, where a court has released
information without a protective order prohibiting dissemination of the
material, or pursuant to an investigation resulting in a criminal charge filed
against the employee.
A. Access to the Brady Alert System
Every deputy can access the Brady Alert System to determine whether
information on a particular witness exists. The alert system will confirm if
information exists as well as provide a brief summary of the Brady information.
Deputies will then need to contact the Brady Compliance Division for further
details if necessary.
At arraignment on an Information, deputies shall access the system to
determine whether impeachment information exists for any witness. Calendar or
trial deputies shall also check the system at least 30 days before trial. Any
information learned from accessing the Brady Alert System shall be noted in the
DA file. The deputy appearing in court on a case shall have the responsibility
of notifying the defense of any information learned from the system. A notation
shall be made in the DA file indicating the date, what information was provided
and in what manner notification to the defense was made (i.e., in writing, on
the record, etc.) Any information learned from the system shall be conveyed to
the defense only on the particular case. Misuse of this system will subject an
employee to disciplinary action up to, and including, discharge.
B. Security Log
A security log has been built into the system and is maintained by our
Systems Division. This log will track every Brady Alert System inquiry made by a
member of this office.
IV. STANDARD OF REVIEW BY THE BRADY COMPLIANCE DIVISION
A. Post Investigation
The Brady Compliance Division will decide whether to include information
concerning a peace officer or governmentally employed expert witness in the
Brady Alert System. Such decision will be made after an investigation of the
allegations by the employee’s agency, another law enforcement agency or by JSID.
The decision to include such information in the alert system will be made
using a standard of clear and convincing evidence which is higher
than a preponderance of evidence but less than beyond a reasonable doubt. In
other words, without clear and convincing evidence that the potential
impeachment evidence is reliable and credible, it will not be included in the
Using the above standard, if the Brady Compliance Division determines that
Brady material exists, it shall notify the Head Deputy or Deputy-in-Charge and
place the information into the alert system. The Brady Compliance Division will
advise Head Deputies and Deputies-in-Charge regarding the manner in which
notification is made to the defense. (Please refer to section VI below.) The
Brady Compliance Division will also notify the employee’s agency in writing of
this decision and action.
Only Brady Compliance Division deputies will input or delete information from
the Brady Alert System.
B. Pending Investigations
If, while a matter is under investigation, the Brady Compliance Division
determines that there is sufficient credible information that the potential
evidence is reliable and credible and it is necessary to present such evidence
to a court (such as where a trial has commenced), it will advise the Head Deputy
or Deputy-in-Charge to notify the employee that the trial deputy will be
requesting an ex parte, in camera hearing to present all relevant,
material evidence to the court and ask the judge to make a decision whether the
evidence should be revealed to the defense. If the judge rules that there is
Brady material, a protective order shall be requested before the material is
turned over to the defense. The trial deputy shall send a memorandum to the
Brady Compliance Division setting forth the judge's reasoning.
C. Insufficient Time for an Investigation
In those unusual instances where alleged Brady material is discovered shortly
before or during trial and there is insufficient time for an investigation, the
trial deputy shall consult with his or her supervisor and the Brady Compliance
Division. Upon a determination by the Brady Compliance Division that there
appears to be sufficient credible information that the potential evidence is
reliable and credible, the Head Deputy or Deputy-in-Charge shall notify the
employee that the trial deputy will be requesting an ex parte, in camera
hearing to present all relevant, material evidence to the court and ask the
judge to make a decision whether the evidence should be revealed to the defense.
If the judge rules that there is Brady material, a protective order shall be
requested before the material is turned over to the defense. The trial deputy
shall send a memorandum to the Brady Compliance Division setting forth the
In either situation described in section B or C above, if a court issues a
protective order, the alleged Brady material will not be included in the Brady
Alert System. If no protective order is issued, the Brady Compliance Division
will wait for a full investigation of the alleged Brady material before making a
decision to include such information in the Brady Alert System.
D. Individual Responsibility
Complying with Brady is the individual responsibility of each deputy. The
decision whether to use a witness whose name appears on the alert system will be
left to the discretion of the individual trial deputy after appropriate
consultation with his or her Head Deputy or Deputy-in-Charge and the Brady
Compliance Division. If the situation should ever arise in which a witness’ name
does not appear on the alert system and an individual trial deputy learns of
information that he or she believes triggers his or her Brady obligation, the
trial deputy shall review this information with his or her Head Deputy or
Deputy-in-Charge and the Brady Compliance Division. If neither the deputy's Head
Deputy or Deputy-in-Charge nor the Brady Compliance Division agree, upon request
by the deputy, the Brady Compliance Division will refer the matter to the
employee’s agency for investigation.
V. JUSTICE SYSTEM INTEGRITY DIVISION, OFFICEWIDE DECLINATIONS AND
NEWLY DISCOVERED BRADY MATERIAL
A. Justice System Integrity Division/Officewide Declinations
Because the Brady Alert System will include both known historical and current
Brady information, JSID will share information with the Brady Compliance
Division on current as well as past filed cases involving peace officers and
governmentally employed experts.
A copy of every JSID declination involving a member of the prosecution team
will be sent to the Brady Compliance Division. The latter will review the
declination and make a preliminary determination if potential Brady information
exists. If there has not been an investigation concerning the potential Brady
material, it will be the responsibility of the Brady Compliance Division to
ensure such an investigation is completed before making any determination.
Following this investigation, if the information is determined to be Brady
material, it will be included in the alert system and the notification process
will be initiated.
In all other divisions, if a case is rejected but a deputy believes that
potential impeachment information concerning a peace officer or governmentally
employed expert witness is included, it shall be brought to the attention of the
Head Deputy or Deputy-in-Charge. If the Head Deputy or Deputy-in-Charge agrees
that Brady material exists, then the Head Deputy or Deputy-in-Charge shall send
a memorandum summarizing and analyzing the Brady material to the Brady
Compliance Division. The same procedures discussed above shall be followed.
B. Newly Discovered Brady Material
If a deputy learns of "new" Brady material concerning any member of the
prosecution team already identified in the alert system, the procedure described
above shall be followed.
VI. NOTIFICATION OF DEFENSE ATTORNEYS/PRO PER DEFENDANTS
Because obligations under Brady continue even after a case is
concluded (People v. Gonzalez (1990) 51 Cal. 3rd 1179,
1260-1261), once the Brady Compliance Division determines that Brady material
exists for a particular witness, the division shall obtain a computer run of all
cases for that witness. The computer run will include all cases from the date of
the alleged misconduct to the present. Head deputies in the offices where cases
are located will be notified to send letters to all defense attorneys of record
or pro per defendants, alerting them to the existence of potential Brady
material. Head deputies shall not send notification letters in closed cases
where the defendant has pled guilty or no contest. (See U.S. v. Ruiz,
(2002) 536 U.S. , 153 L. Ed 2nd 586, 597, 122 S. Ct )
VII. PRIMARY RESPONSIBILITIES OF THE BRADY COMPLIANCE DIVISION
1. Maintain the Brady alert system;
2. Collect and maintain Brady material;
3. Assist deputies in determining whether Brady material exists in a
particular case, or against a particular witness;
4. Consult with individual deputies as to when it is appropriate to disclose
potential impeachment information to the defense;
5. Advise deputies on issues relating to the Brady Protocol and on relevant
6. Consult with deputies as to when it is appropriate to seek ex parte,
in camera review by the court of potential Brady material; develop and
maintain pleadings for this purpose; and
7. Coordinate responses to Public Records Act requests for Brady material
within the office.
Compliance with this Directive will help fulfill our primary mission of
fairly prosecuting those who violate criminal laws in Los Angeles County.