Although it may be hard for some facing criminal charges to believe, “fundamental fairness” is mandated by judicial interpretation of the Constitution. While many are familiar with Brady v. Maryland which requires the prosecution to turn over exculpatory* evidence (see separate post here), the U.S. Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972), extends this duty to a critical area: witness credibility, including credibility of law enforcement officers (LEOs).

What is “Giglio Material”?

Giglio material refers to any information that could impeach the character or testimony of a prosecution witness. In the Giglio case , the Supreme Court ruled that when the reliability of a witness is “determinative of guilt or innocence,” the nondisclosure of evidence affecting their credibility violates Due Process. This includes LEOs who are witnesses. Examples of such material or information can include:

• If a LEO left one agency given misconduct and was hired by the current agency;
• If the LEO has made racially profiled traffic stops (something that might be in the LEO’s disciplinary records or simply known to the prosecutor who has seen racially disparate traffic tickets);
• If the LEO testified falsely in a deposition or court hearing (again, something the prosecutor might know directly having seen previous testiomony, etc);
• If the LEO has a criminal record or is currently facing charges that might impeach his or her credibility.

And as noted below, this obligation remains even if the prosecutor does not have hiring records, disciplinary records, etc.

Missouri’s Higher Standard: Rule 25.03

In Missouri, the prosector’s Giglio obligations are articulated in Rule 25.03 (g)-(h):

The state shall, without written request, disclose to defendant any material or information that tends to negate the guilt of defendant for the charged offense, mitigate the degree of the offense charged, reduce the punishment of the offense charged, and any additional material or information that would be required to be disclosed to comply with Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Rule 25.03 (g) (emphasis added).

And, under this Missouri rule the prosecutor’s obligation is even more stringent. While Giglio focuses on the prosecutor’s “possession,” Missouri Supreme Court Rule 25.03 imposes an affirmative duty on prosecutors to take action to discover information they do not currently possess. This includes reaching out to other “government personnel,” such as police and investigators, to learn of any favorable or impeaching evidence.

If material or information would be discoverable under subsection[] (g) of this Rule if in the possession or control of the state, but is in possession or control of other governmental personnel [e.g., the law enforcement agency], the state shall use diligence and make good faith efforts to make the material or information available to defendant. Rule 25.03 (h)

The Defense Ask for Giglio Material

Although the Defense is not even obligated to ask under Rule 25.03(g), my discovery requests sent in Associate Circuit Court and in Circuit Court do so. See posts here and here for such templated requests.

The State’s Loophole

• Although the prosecutor must provide the Defense evidence that impacts the credibility if a witness, including a LEO witness, it does matter if the State is claims it is going to use the witness.

For example, there are often two (2) LEOs who witness some alleged criminal wrongdoing or alleged confession. If one LEOs is not/less credible, the State might only list one LEO on the witness list.**

** One important thing a criminal defense attorney can do is compare all of the LEOs listed on the incident report(s), dispatch records, etc., to the State’s witness list. For example, if there are three (3) officers who respond to crime but only one is listed by the prosector as a “witness,” it is worth inquiring why. It may be likely the other two would be redundant or only saw part of the incident; but maybe those not listed might have a credibility issue that might help the defense.

Motive for Non Disclosure is not Relevant

• Negligence vs. Design: Whether the failure to disclose was a result of a “negligent” oversight or a deliberate “design,” the responsibility—and the violation—remains the same.