By John V. Berry, Berry & Berry, PLLC, WWW.BERRYLEGAL.COM
“Giglio” is a term that is well known amongst law enforcement officers, but it is often generalized to the extent that the specific meaning and scope of the Giglio case is sometimes misplaced. I thought that I would provide a short refresher on Giglio and how it impacts police officers today. In short, Giglio is a term often associated with the issue of law enforcement officer credibility in court.
The Giglio Case
The case itself, Giglio v. United States, 405 U.S. 150 (1972), was a landmark decision which began to apply a number of duties of disclosure to prosecutors in criminal cases as it pertained to government witnesses (and chiefly among them police officers). The Supreme Court, in Giglio, along with a few other related and following cases essentially established a doctrine where prosecutors acquired a duty to disclose evidence about the credibility of government witnesses (typically, police officers) which had to be turned over following a request by defense counsel. The principal holding in Giglio was explained by the Supreme Court when it held that when the reliability of a given witness may be determinative of either guilt or innocence nondisclosure of evidence affecting credibility could become reversible error.
A Few Cases Following Giglio
The Giglio principle was further expanded some 4 years later in 1976 by the Supreme Court in United States v. Agurs, 427 U.S. 97 (1976) which recognized a duty by prosecutors to disclose exculpatory information, like the type that involves officer credibility issues in prosecutions. In Agurs, the Supreme Court held that the prosecution had to provide the information even in the absence of defense counsel’s request for such information.
Next, the Court's decision in Kyles v. Whitley, 514 U.S. 419 (1995) further added to the burdens that prosecutors faced in terms of credibility determinations that could likely face police officers as witnesses. The Court in Kyles imposed an affirmative duty on a prosecutor "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 first-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 files. The Kyles Court emphasized that even if a prosecutor had been unaware of the exculpatory evidence that regulations can be established to carry the prosecutor's burden and to ensure communication of all relevant information on each case to all the attorneys involved.
The Reality of Giglio and it’s Effect on Law Enforcement Officers
These court cases and others have slowly built up the requirement that law enforcement officers be truthful in all of their dealings. When evidence of untruthfulness in cases (or in some jurisdictions evidence of untruthfulness in general, see Lewis v. United States, 408 A.2d 303 (D.C. 1979) (creating a prosecutorial “Lewis list” within the District of Columbia for general acts of untruthfulness and other issues)) comes out in today’s litigious society, prosecutions in some criminal cases can be made more difficult through the forced disclosure of these rules. The Supreme Court has essentially created a string of decisions which require prosecutors to learn of and then to disclose to criminal defense attorneys information which will then be used to attempt to impeach law enforcement witnesses in criminal cases.
One of the difficulties with credibility information is that it is not consistently provided by each law enforcement agency to local prosecutors. This difficult often stems from internal politics within a police department. In some cases, this type of internal politics decides which members of a department get turned in to prosecutors as unreliable and which do not (usually those with a friend in the Chief’s office). This has led to inconsistent practices internally in police departments and often times disciplinary actions or security clearance issues with respect to the truthfulness of individual police officers and supervisors.
Some police departments have responded to these issues with different policies. Some departments have attempted to enforce a strict truthfulness policy and terminate officers who violate them; this often times leads to officer appeals and reversals of terminations because departments inevitably misread the case law and make legal mistakes. Still other departments attempt to place the police officer or supervisor in an administrative assignment (often times another mistake related to a lack of legal guidance about the weight that these issues have. One other issue that has also occurred is the inconsistent disclosures in Giglio situations by local prosecutors. There are a number of situations in which different prosecutors have led to an inconsistent application of Giglio (often times less experienced prosecutors make mistakes about the application of Giglio to their criminal prosecutions) causing an otherwise good case to be dropped due to a misunderstanding of Giglio.
Closing Thoughts on Giglio and the Police Officer
This is a continuing and as yet unresolved issue. It appears that the courts are still refining Giglio and departments have generally played catch up in responding to new court decisions as they are issued. Police officers facing truthfulness issues should consult an attorney as early in the process as possible to determine how best to proceed when facing these types of disciplinary or impeachment issues.