Giglio material (or Giglio information) is a well-known term among law enforcement, but there is often confusion over how and when it applies. Giglio v. United States, 405 U.S. 150, is a 1972 Supreme Court case involving the prosecution’s obligations in regards to criminal discovery and disclosure. Prior to Giglio, the Supreme Court had found in Brady v. Maryland that due process is violated when the prosecution “withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.” In Giglio, the Court went further and held that all impeachment evidence falls under the Brady holding. This means that the prosecution is obligated to disclose all information or material that may be used to impeach the credibility of prosecution witnesses (including situations where police officers act as witnesses for the prosecution).
The Brady and Giglio precedents require police officers to be especially careful to avoid any actions or statements that could compromise their credibility. The prosecution is legally required to disclose any misconduct or compromising information regarding the witness to the defense attorney, who will then use it to impeach the law enforcement witness on the stand. The end result can be the loss of what would have been a strong case.
A common problem across police departments and other law enforcement agencies is a failure to consistently provide local prosecutor’s with credibility information. Often, internal politics end up determining who is reported to the prosecutor’s office as unreliable and who is not. In response, some departments have tried to institute strict truthfulness policies and terminate officers who violate them. Others will attempt to place the officer in an administrative assignment. The issue with both of these solutions is that police departments will inevitably act without any legal guidance and fail to follow the case law.
In Nevada, state law defers to the Brady and Giglio standard in regards to prosecutorial disclosure. NRS 174.235 states that “the provisions of this section are not intended to affect any obligation placed upon the prosecuting attorney by the Constitution of this state or the Constitution of the United States to disclose exculpatory evidence to the defendant.” This obligation does not apply only to prosecutors.
It has also been found that Brady and Giglio do not apply only to the prosecution. In United States v. Blanco (an appeal from the United States District Court for the District of Nevada), the Court of Appeals for the Ninth Circuit stated: “The obligation under Brady and Giglio is the obligation of the government, not merely the obligation of the government.” In this case, the DEA had refused to provide information to the prosecution. Even though the prosecution had exercised due diligence by requesting that the DEA send over all Brady and Giglio material, due process was still violated by the DEA’s refusal to turn over exculpatory evidence. The Ninth Circuit held that the government, not just the prosecution, had obligations under Brady and Giglio.
Police officers should be aware of the basic issues surrounding Giglio so they can fulfill their own obligations under the law and avoid compromising a criminal case. A memorandum from the office of the U.S. Attorney for Nevada provides AUSAs with questions they can ask potential law enforcement witnesses to determine if there are any Giglio issues. A good practice for police officers would be to periodically consider what their own answers would be to the following questions:
- If the witness is aware of any specific instances of misconduct, both within and outside the scope of his or her employment, that may bear on the witness’ credibility (including the finding of a lack of candor during any administrative inquiry)
- If the witness has any pending allegations of misconduct with his or her employing agency
- If the witness has ever had criminal charges filed against him or her, regardless of the outcome of the charges
- If the witness is aware of any evidence suggesting his or her bias against the target, subject or defendant
- If the witness is aware of any findings of misconduct, allegations or pending investigations of misconduct similar to circumstances or potential defenses in the case (such as, coercion, entrapment, mishandling of evidence or use of force)
- If the witness is aware of any prior findings by a court concerning the witness that may impact on the witness’ credibility
- If the witness is aware of any negative allegations or opinions about the witness’ reputation or character that have been in media stories or otherwise publicly aired
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