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SPECIAL DIRECTIVE 02-08

BRADY PROTOCOL

December 7, 2002


THIS SPECIAL DIRECTIVE SUPERSEDES SD 02-05

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 their decisions.

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 guidelines.

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 their opposites.

(f) The existence or nonexistence of a bias, interest or other motive.

(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 conduct].)

Further examples of possible impeachment evidence of a material witness include:

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 INFORMATION

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 alert system.

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 judge's reasoning.

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 case law;

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.

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 1 The policy regarding possible Brady material in the possession of law enforcement is set forth in SD 02 – 07.