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Disciplinary Assignment Part 2 Instructions

This is a continuation of the Disciplinary Assignment Part 1. Students read the following journal articles found in the Reading and Study section of Module/Week 7.

Judge, Lisa A. (November 2005). Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?. The Police Chief, 72(11). 

Serpas, Ronal, & Hagar, Michael. (August 2010). The Untruthful Employee: Is Termination the Only Response?.  The Police Chief, LXXVII(8). 

Copyrights held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA. 

Instructions: 

Since 1963, a series of United States Supreme Court case decisions have clarified that in criminal cases, prosecutors must disclose to the defense evidence favorable to the defendant. This includes information that may be used to impeach the credibility of government witnesses, including law enforcement officers. These decisions mean that police officers who have documented histories of lying in official matters are liabilities to their agencies, and these histories may render them unable to testify credibly. 

With this in mind, you are the Chief of Police of a municipality. Your Deputy Chief of Police advises you that one of your officers was investigated for inappropriate use of one of the computers in the patrol division. As a result of this internal investigation, it was determined that the officer used this computer to search pornographic web sites. When confronted with this allegation, the officer denied any knowledge of this incident. Upon further investigation, the computer crimes analyst determined that the officer’s logon password was used to enter the unauthorized web sites. The officer then admitted to his wrongdoing and stated it would never happen again. This officer has been with your organization for 15 years, and the only other disciplinary action taken against him was for being involved in an at fault traffic accident 10 years ago. As the Chief of Police, you must decide how you will handle this situation?

Write a professional memorandum outlining and explaining how you will handle this situation. What recommendations would you make? 

Use the references listed below to assist and support you in your decision.

You must have at least 2.5 pages and should attach these new pages to Part 1, for a total of 5 pages. Therefore, in Module/Week 7 you will submit the entire Disciplinary Assignment with a title page, and a reference page citing the cases you used, and any outside references.

• Brady v. Maryland, 373 U.S. 83      (1963)
• Giglio v. United States, 405 U. S.      150 (1972)
• United States v. Agurs, 427 U. S.      97 (1976)
• Kyles v. Whitley, 514 U. S. 419      (1995)
• United States v. Bagley, 473 U. S.      667 (1985)

feedback from part 1 is attached as well as journal articles

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Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town? – Police Chief Magazine

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Police Chief
Magazine | Topics | Ethics | Disclosing O㫓߶cer
Untruthfulness to the Defense: Is a Liars Squad
Coming to Your Town?

Disclosing Of cer Untruthfulness to the
Defense: Is a Liars Squad Coming to Your
Town?
Lisa A. Judge, Police Legal Advisor, Tucson, Arizona, Police Department
 

Since 1963, a series of U.S. Supreme Court decisions has clari菟쯨ed that, in a criminal
case, prosecutors must disclose to the defense evidence favorable to the defendant.
This includes information that may be used to impeach the credibility of government
witnesses, including law enforcement o㫓߶cers. These decisions mean that o㫓߶cers
who have documented histories of lying in o㫓߶cial matters, falsifying reports, or
expressing bias may become even greater liabilities to their agencies because their
records may render them unable to testify credibly and consequently unable to
work e㣚舟ectively as law enforcement o㫓߶cers.

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10/15/2016 Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town? – Police Chief Magazine

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Supreme Court Cases
In Brady v. Maryland the U.S. Supreme 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.” In Brady two men were tried for a
murder that occurred during a robbery. One of the defendants, Brady, admitted that
he had taken part in the robbery but claimed that the other defendant committed
the killing. The Court found that the prosecution should have disclosed to Brady’s
attorney the co-defendant’s statements confessing to the killing.

In Giglio v. United States the Supreme Court extended the obligation to share
exculpatory information with the defendant to include information concerning the
credibility of government witnesses. Giglio was convicted of forgery primarily on
the testimony of an unindicted co-conspirator. At trial, the co-conspirator testi菟쯨ed
that he had not received any promises of leniency in exchange for his testimony
against Giglio, when in fact the prosecutor who presented the case to the grand jury
had promised not to prosecute him in exchange for testifying. The Court was
unimpressed with the trial prosecutor’s claims that he knew nothing of the deal.
“When the reliability of a given witness may be determinative of guilt or innocence,”
the Court wrote, “nondisclosure of evidence a㣚舟ecting credibility falls within this
general rule.”

In United States v. Agurs the Supreme Court expanded the rule further by recognizing
a duty to disclose exculpatory information even in the absence of a speci菟쯨c request
for it. The female defendant was convicted of second-degree murder in the
stabbing death of a male acquaintance. The defendant had claimed self-defense.
After the trial, the defendant learned that the prosecutor had failed to disclose the
victim’s previous guilty pleas to assault and weapon possession charges. The Court
held that the prosecutor’s failure to disclose material exculpatory evidence violated
due process.

United States v. Bagley further de菟쯨ned “material” evidence as information that, if
disclosed to the defense attorney, would have a “reasonable probability of providing
a di㣚舟erent result in the trial or sentencing.” This case also clari菟쯨ed that
impeachment evidence must be disclosed to the defense. Here, the government
failed to disclose contracts with con菟쯨dential informants who testi菟쯨ed against the

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defendant in his trial on weapons and narcotics charges, which his attorney could
have used to impeach their testimony. The Court found that this type of information
was material since it would cast doubt on the motives of the witnesses.

Finally, the Court’s decision in Kyles v. Whitley imposed upon the prosecutor an
a㫓߶rmative “duty to learn of any favorable evidence known to the others acting on
the government’s behalf, including the police,” and a resulting duty to disclose that
evidence to the defense. In this case, the defendant was convicted of 菟쯨rst-degree
murder but was given a new trial after it was discovered that the prosecutor had not
divulged exculpatory evidence, even though the prosecutor was unaware of the
evidence, which was in police 菟쯨les. The Court stated that even if a prosecutor isn’t
aware of the exculpatory evidence, “procedures and regulations can be established
to carry [the prosecutor’s] burden and to insure communication of all relevant
information on each case to every lawyer who deals with it.”

Federal Law Enforcement’s Response to the Disclosure Rules
The bottom line: these Supreme Court decisions create a rule that requires
prosecutors to learn of and disclose to the defense information that could be used
to discredit law enforcement witnesses in a case. Prosecutors are essentially held
responsible for knowing what the police know. The reality is that prosecutors must
rely on law enforcement agencies to inform them of a hidden witness credibility
problem including, for example, evidence of an o㫓߶cer’s prior untruthfulness in
o㫓߶cial matters.

Responding to this requirement, Attorney General Janet Reno in 1996 established
the so-called Giglio policy, which required federal law enforcement agencies to
inform federal prosecutors about potential impeachment information. Speci菟쯨cally,
federal investigative agencies are required to report prior misconduct involving the
o㫓߶cers in a case if that misconduct is “material to the defense” and would damage
the credibility of an o㫓߶cer-witness.

This policy places a burden both on the enforcement agency and individual o㫓߶cers
to ensure that federal prosecutors are informed about impeachment information.
Mere allegations of this type of evidence need not be reported to the prosecutor
unless the allegation is determined to be “very credible.” However, under this policy,
even allegations against the o㫓߶cer that were not sustained, are not credible, or

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10/15/2016 Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town? – Police Chief Magazine

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resulted in exoneration may be subject to disclosure if: (1) required by a court; (2)
the allegation was made by a federal prosecutor or judge, or received publicity; (3)
the agency and the prosecutor agree that disclosure is appropriate under the
circumstances; or (4) the agency deems such disclosure is appropriate.

Implications for State and Local Police Departments
Many state and local agencies have similarly begun to disclose to prosecutors any
conclusive information regarding untruthfulness, bias, and crimes committed by an
o㫓߶cer who is to be a material witness in a criminal prosecution. Once the
prosecutor is aware of such information, he or she can decide if the information
should be disclosed to the defense attorney.

If the misconduct involves untruthfulness, it is likely to undermine the o㫓߶cer’s ability
to testify e㣚舟ectively. Agencies have responded to this problem in di㣚舟erent ways.
Some have adopted strict truthfulness policies and terminate o㫓߶cers who violate
them. Other agencies have simply placed o㫓߶cers with impeachment problems in
administrative assignments where there is no likelihood of becoming a witness in a
criminal case, essentially creating so-called liars squads.

Defense attorneys are using information about untruthful o㫓߶cers to create
databases to be used by other defense attorneys. For example, in San Diego, a
defense attorney faced with a police witness in a case need only consult a database
established by San Diego County Public Defender’s O㫓߶ce containing information
about local police misconduct and bias. If there is information about that o㫓߶cer
being untruthful or in some way biased as a witness, the attorney will attempt to use
that information to impeach that o㫓߶cer.

As this trend grows, agencies will be required to deal more forcefully with o㫓߶cers
who lie. Departments may choose to adopt strict policies regarding truthfulness and
rigorously adhere to those policies. Without taking such steps, agencies set
themselves up to employ a portion of their commissioned workforce as
administrative employees, unable to investigate crimes and testify regarding their
investigations. ■
Brady v. Maryland, 373 U.S. 83 (1963).
Giglio v. United States, 405 U.S. 150 (1972).
United States v. Agurs, 427 U.S. 97 (1976).

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The Police Chief is the o㫓߶cial publication of the International Association of
Chiefs of Police.

All contents © 2003–2016 International Association of Chiefs of Police. All Rights
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Designed and Built by Matrix Group International, Inc.®

United States v. Bagley, 473 U.S. 667 (1985).
Kyles v. Whitley, 514 U.S. 419 (1995).
“Database to Let Attorneys See Conduct of O㫓߶cers,” San Diego Union-Tribune, Dec.

24, 2000.

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MEMO
RANDUM

TO: Dr. Bruce Gay

FROM: Vibert Jacob

DATE: 7 February 2017

SUBJECT
: Witness Credibility and Prosecutor Obligation

Evidence is the cornerstone of the justice system. Be that as it may, there are instances where
prosecutors have been accused of withholding of such evidence. There are instance where the credibility of a witnessed can be undermined by the evidence presented to court. In such instances, it is the responsibility of the person pursuing the case to reveal such evidence. This memorandum will highlight several instances that reveal the need for the prosecutor to disclose any evidence that might undermine the credibility of a crucial witness to a case

.

Brady vs. Maryland

One of the most notable cases that highlight the importance of revealing evidence that puts into question the credibility of a witness is Brady vs. Maryland.
In this case, the petitioner applied to have the case retried based on his allegation that he had been convicted of a crime committed by his accomplice. Both the petitioner and the accomplice were accused of first degree murder but only the petitioner ended up being convicted. However, the petitioner claimed that his accomplice actually confessed to the crime, but this information was withheld by the prosecutor.

Discussion

.

Giglio vs. the United States

In Giglio vs. United States,
Giglio was accused of forger. The bank worker was accused of forging currency notes and convicted to five years in prison. The main witness in the case was Mr. Taliento who also happened to have been Giglio’s co-conspirator. The conviction of the bank employee was mainly hinged on the witness testimony put forward by Mr. Taliento. However, the prosecutor to the case failed to reveal that they had offered a deal to the witness whereby he was assured of immunity from prosecution in case he agreed to testify against his accomplice. In his application for a second hearing, Giglio pointed out that his accomplice had been offered a deal and this had compromised his credibility as a witness. Initially, his request for a re-hearing was denied but later on, the court agreed
to a second hearing.

gave.

United States vs. Agurs

The third case that brings out the aspect of witness credibility is United States vs. Agurs
. Agurs was accused of first degree murder for murdering her boyfriend. Upon completion of the case, Agurs, the defendant realized that the prosecutor had failed to disclose evidence regarding her boyfriend’s history of violence. In his defense, the prosecutor argued that Agurs had not requested to be furnished with evidence relating to her boyfriend’s past. The case of Agurs vs. United States brings to the fray several issues with one key issue being the role of prosecutor in revealing any evidence that relate to the witness credibility
.

Discussion

Due to the ability of such evidence to be crucial in determining a case, it is reasonable for the prosecutor to be handed the responsibility of providing certain pieces of information such as the history of a witness or victim in a case. As such, the credibility of a witness needs to be determined before any evidence or testimonies are received from the witness, while at the same time, in the case of the credibility of law enforcement officers, evidence regarding the history of an officer witness proves to be crucial for the sake of serving justice and fairness.

All in all, the credibility of a witness is one of the most important elements when it comes to determining the possible outcome of a case. A prosecutor has a legal obligation to provide evidence that can go into addressing issues to do with the credibility of a witness. This is important since issues to do with credibility must be resolved before a witness is allowed to testify. Furthermore, credibility of a witness with respect to law enforcement officers must also be taken into account before allowing the law enforcement officer to testify.

References

Giglio vs. the United States:

http://caselaw.findlaw.com/us-supreme-court/405/150.html

Brady vs. Maryland:

https://supreme.justia.com/cases/federal/us/373/83/case.html

United States vs. Agurs:

http://caselaw.findlaw.com/us-supreme-court/427/97.html

0 points

Not present

Advanced

92-100%

Proficient

84-91%

Developing

1-83%

Not present

Total

%

0 points

Not present

0 points

Not present

10

Criteria

Levels of Achievement

Content (70%)

Advanced 92-100%

Proficient 84-91%

Developing 1-83%

Not present

Total

%

Answer Specificity

23 to 25 points: All key components of the question are thoroughly answered in the paper.

21 to 22.5 points: All key components of the question is largely answered in the paper with few exceptions.

1 to 20.5 points: Key portions of assigned questions are left unanswered.

0 points Not present

10

Logic & Clarity

23 to 25 points: Clear, logical flow to paper; major points are stately clearly.

21 to 22.5 points: Clear logical flow to paper; major points are stated clearly for the most part.

1 to 20.5 points: Lack of clarity and failure to logically explain and communicate answers is the norm.

0 points Not present

18

Research & Support

18.5 to 20 points: Major points are thoroughly supported by the following: 1.Lecture material or Scripture 2.Good examples (pertinent conceptual or personal examples 3.Thoughtful analysis (considering assumptions, analyzing implications, comparing/contrasting concept)

16.5 to 18 points: Major points are largely supported by the following: 1.Lecture material or Scripture 2.Good examples (pertinent conceptual or personal examples 3.Thoughtful analysis (considering assumptions, analyzing implications, comparing/contrasting concept)

1 to 16 points: Major points are lacking substantial support by the following: 1.Lecture material or Scripture 2.Good examples (pertinent conceptual or personal examples 3.Thoughtful analysis (considering assumptions, analyzing implications, comparing/contrasting concept)

13

Structure (30%)

Spelling, Grammar & APA

18.5 to 20 points: Little to no errors in spelling, grammar and APA

16.5 to 18 points: Some errors in spelling, grammar & APA

1 to 16 points: Numerous errors in spelling, grammar & APA

0

Sufficient Length

9.25 to 10 points: 2.5 pages of content and a title page (reference page if needed)

8.25 to 9 points: Paper runs a bit long or a bit short of page requirements

1 to 8 points: Paper is more than three pages or less than two pages.

Professor Comments:

Case briefing lacking, several key legal issues were overlooked, memorandum lacks specifics as to the conduct of officers, numerous APA errors

Total:

51

�you need to use a cover page

�This is an inter-office memorandum, address it to your department (see part 2), do not address it to me

�double space only,

�Do NOT use FULL justification, use LEFT justification

�YES, so you need to be more specific about the DISCIPLINARY actions that attach to officers who lie in official reports because such evidence must be disclose at trial as required by these cases you are briefing. You need to tie your introduction to the purpose of the memorandum with specifics, not vague generalities

�not correct way to cite cases in APA, see announcement that was posted

�not correct way to cite cases in APA, see announcement that was posted

�in case briefing, you Give facts of the case first, then the legal issue, then what the Court held. do not use the word “discussion” you gave the facts, but you did not give the legal issue or the court’s decision. in short, you did not adequately brief this case. This level of detail was explained in the weekly announcement

�do not give commentary on the case. give the legal issue and legal precedent

�not correct way to cite cases in APA, see announcement that was posted

�not correct way to cite cases in APA, see announcement that was posted

�which court? be specific

�not correct way to cite cases in APA, see announcement that was posted

�not correct way to cite cases in APA, see announcement that was posted

�this is NOT the key issue. this is not what is different about discovery in Agurs from Brady. Re-read the case

�not correct way to cite cases in APA, see announcement that was posted

Is Termination

the Only Response?

By Ronal Serpas, Superintendent, New Orleans,

Louisiana,

Police Department

; and Michael Hagar,

Captain, Metropolitan Nashville, Tennessee,

Police Department

Over the decades, law enforcement leaders have been under

increasing pressure to answer the question, “What do I do

with a law enforcement employee who has been proven to

be untruthful in the workplace?”

Many departments have been confronted with significant and farreaching

court decisions that play prominent roles in this decisionmaking

process, as well as vigorous debates and lengthy court

battles with labor organizations around the issue of truthfulness

expectations in policy and disciplinary actions.

The U.S. Department of Justice has issued far-reaching

instructions on the conduct of federal law enforcement cases that

may involve local and state police employees who have histories

of being untruthful in the workplace. There have been articles

published in Police Chief magazine and other publications discussing

this issue. In light of these critical and evolving issues,

a recent decision from the Tennessee Court of Appeals analyzing

the procedures and practices of the Metropolitan Nashville

Police Department (MNPD), in Davidson County, Tennessee, can

be instructive.

Editor’s Note: When this article was originally written, Ronal Serpas

was the chief of police for Metropolitan Nashville, Tennessee.

Between writing the article and its publication date, Serpas

accepted a new position as Superintendent of Police for the City

of New Orleans.

For the past seven years, the magazine has published articles

building on the knowledge base of this issue. Other articles

published by the Police Chief on the subject include “Brady

Is Middle-Aged—but Is Compliance in Its Infancy for Some

Agencies?” by Julie Risher (June 2008); “Should Police Officers

Who Lie Be Terminated as a Matter of Public Policy?” by Elliot

Spector, (April 2008); “Disclosing Officer Untruthfulness to the

Defense: Is a Liars Squad Coming to Your Town?” by Lisa A. Judge

(November 2005); and “Police Officer Truthfulness and the Brady

Decision,” by Jeff Noble (October 2003). This article adds to the

body of knowledge of addressing employee untruthfulness.