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ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO. 2019-
TO: All County Prosecutors
FROM : Gurbir S. Grewal, Attorney General
DATE: December 4, 2019
SUBJECT : Directive Establishing County Policies to Comply with Brady v. Maryland and Giglio v. United States
Federal and State precedent require prosecutors disclose exculpatory and impeachment evidence to defense counsel. The United States Supreme Court in Brady v. Maryland , 373 U.S. 83, 87 (1963), held “suppression by the prosecution of evidence favorable to an accused... 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.” Thereafter, the Supreme Court in Giglio v. United States , 405 U.S. 150 (1972), further clarified that exculpatory evidence (or “ Brady material”) includes evidence that may be used to impeach the credibility of a prosecution witness. “When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within th[e] general rule [of Brady ].” Giglio , 405 U.S. at 154 (internal quotations omitted).
Our State Supreme Court followed Brady and Giglio in State v. Carter , 91 N.J. 86, 111 (1982), holding “evidence impeaching testimony of a government witness falls within the Brady rule when the reliability of the witness may be determinative of a criminal defendant’s guilt or innocence.” Whether Giglio information is determinative of the defendant’s guilt or innocence requires analysis of that information by the prosecutor in light of the circumstances of the case. This is important to note because the failure to disclose Brady and Giglio material could result in reversal of a defendant’s convictions.
While prosecutors across the State are well aware of their obligations under Brady and Giglio , there is a great deal of variation among the County Prosecutors’ Offices regarding specific Brady-Giglio policies. While some have written policies, others employ a more informal
PHILIP D. M URPHY Governor
SHEILA Y. O LIVER Lt. Governor
State of New Jersey
O FFICE OF THE ATTORNEY G ENERAL D EPARTMENT OF LAW AND PUBLIC S AFETY PO BOX 080 T RENTON, NJ 08625-
GURBIR S. GREWAL Attorney General
approach. To ensure compliance and the integrity of criminal prosecutions, however, written guidelines, incorporating the best practices and procedures discussed below, are required.
Therefore, pursuant to the authority granted to me under the New Jersey Constitution and the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, which provides for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State in order to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I hereby direct all County Prosecutors to implement a policy within their respective counties consistent with this Directive to ensure compliance with Brady and Giglio.
It is understood that the procedures established for complying with Brady and Giglio may vary among the counties to accommodate the specific volume and available resources. However, each county’s Brady - Giglio policy shall fully comply with the law and Rules of Professional Conduct.
I. Definitions
A. “Civilian witness” refers to an individual who is not employed by a law enforcement agency or entity.
B. “ Giglio liaison” refers to the individual appointed by the County Prosecutor to serve as a primary point of contact within the County Prosecutor’s Office concerning potential impeachment information.
C. “Investigative employee” refers to an individual who is a sworn law enforcement officer, analyst, civil investigator, or civilian employee working for a law enforcement agency or entity.
D. When used without a modifier, “Prosecutor” refers to the attorney(s) assigned to prosecute a particular case. In a County Prosecutor’s Office, this will typically be an Assistant Prosecutor; in the Division of Criminal Justice, the Office of Public Integrity & Accountability, and the Office of the Insurance Fraud Prosecutor, this will typically be a Deputy Attorney General or Assistant Attorney General. The term “County Prosecutor” refers specifically to the acting or confirmed County Prosecutor who oversees a County Prosecutor’s Office.
E. “Sustained^1 finding” refers to any finding where a preponderance of the evidence shows an officer violated any law, regulation, directive, guideline policy or procedure issued by the Attorney General or County Prosecutor; agency protocol; standard operating
(^1) For purposes of this policy, “sustained” is the equivalent of “substantiated” as it pertains to New Jersey State Police policies.
b. Evidence related to defendant’s theory of third-party guilt. State v. Smith , 224 N.J. 36, 50 (2016);
c. Potentially exculpatory polygraph test of State’s witness. State v. Carter , 85 N.J. 300 (1981); and
d. Prior inconsistent and exculpatory statements made by a State’s witness. State v. Cahill , 125 N.J. Super. 492 (Law Div. 1973).
- Giglio Material. “Evidence impeaching the testimony of a government witness falls within the Brady rule when the reliability of the witness may be determinative of a criminal defendant’s guilt or innocence.” State v. Carter , 91 N.J. at 111 (citing Giglio at 150) (emphasis added). The New Jersey Supreme Court in Carter held that “the State’s obligation to disclose is not limited to evidence that affirmatively tends to establish a defendant’s innocence but would include any information material and favorable to a defendant’s cause even where the evidence concerns only the credibility of a State’s witness.” Id. This includes Giglio material on civilian and investigative State witnesses.
Thus, in developing its Brady and Giglio policy, each County Prosecutor’s Office shall use the following non-exhaustive list of potential Giglio material as it relates to civilian and investigative State witnesses for guidance on the type of material that must be gathered. Again, this does not necessarily mean the information will be disclosed.
a. Civilian Witnesses
i. Bias. A witness can be impeached with evidence that he or she has a bias against the defendant or in favor of the State (actual or potential exposure to criminal penalties, leniency/plea agreement, payments, immigration benefits, etc.);
ii. Specific instances of dishonesty. A witness can be impeached with evidence of a prior act of misconduct involving dishonesty, even if it has not resulted in a criminal charge or conviction. This includes lying and falsifying records;
iii. Criminal convictions, N.J.R.E. 609; and
iv. Prior inconsistent statements, N.J.R.E. 613.
b. Investigative Employees
i. A sustained finding that an investigative employee has filed a false report or submitted a false certification in any criminal, administrative, employment, financial, or insurance matter in their professional or personal life;
ii. A sustained finding that an investigative employee was untruthful or has demonstrated a lack of candor;
iii. A pending criminal charge or conviction of any crime, disorderly persons, petty disorderly persons, or driving while intoxicated matter, noting that any such charges or convictions will be reviewed for disclosure under N.J.R.E. 609;
iv. A sustained finding that undermines or contradicts an investigative employee’s educational achievements or qualifications as an expert witness;
v. A finding of fact by a judicial authority or administrative tribunal that is known to the employee’s agency, which includes a finding that the investigative employee was intentionally untruthful in a matter, either verbally or in writing;
vi. A sustained finding, or judicial finding, that an investigative employee intentionally mishandled or destroyed evidence. Generally, law enforcement agencies and investigative employees should disclose findings or allegations that relate to substantive violations concerning: (1) the intentional failure to follow legal or departmental requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications; (2) the intentional failure to comply with agency procedures for supervising the activities of a cooperating person; and (3) the intentional failure to follow mandatory protocols with regard to the forensic analysis of evidence;^2
vii. Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation;
viii. Information that may be used to suggest that the investigative employee is biased for or against a defendant. See United States v. Abel , 469 U.S. 45, 52
(^2) This category does not include incidents deemed by a supervisory authority to be a mistake or done in error without intention, even in cases where the incident was sustained. For example, if an officer failed to follow a mandatory protocol due to a misunderstanding, and that mistake resulted in a sustained finding, that would not be considered Giglio information for purposes of disclosure.
of such a witness. See Carter , 91 N.J. at 111. Brady and Giglio material related to those State witnesses must be gathered and disclosed if appropriate. See State v. Parsons , 341 N.J. Super. 448 (2001). Court Rule 3:13-3(a) permits a prosecutor, upon notice to the defendant, to provide more limited discovery in a pre-indictment plea context and should be used if appropriate.
Thus, each county’s policy must, at a minimum, include the following:
- Process for Employee’s Proactive Participation. A process for the investigative employee to proactively participate in the Brady and Giglio gathering phase. As part of that process, the investigative employee involved in a case must notify the prosecuting authority (or confirm that the prosecuting authority is aware) or any potential Brady or Giglio material known to the investigative employee.
- Process for Prosecutor’s Gathering of Information. A process for the prosecutor and/or Giglio liaison to affirmatively gather Brady and Giglio information from the investigative employee and the investigative employee’s agency. This can be done, for example, both formally in writing to the investigative agency and/or informally through a candid conversation between the investigative employee and the prosecutor. This type of process can occur multiple times as the underlying investigation progresses.
- Mechanism for Identification of Brady and Giglio Material. A mechanism or system that allows, on a case-by-case basis, for the identification of officers with potential Brady or Giglio material, taking into account that this mechanism or system must be amenable to update and modification, as material that is considered Brady and Giglio may change under different circumstances and over time.
Therefore, each county’s policy must establish procedures for gathering and reviewing Brady and Giglio material that complies with the above parameters.
C. Procedures for Reviewing and Disclosing Brady and Giglio Information. Each county’s policy shall establish the following procedures for review and disclosure of Brady and Giglio material.
- Procedures for Review. The prosecutor assigned to a case, in consultation with the prosecutor’s designee or Giglio liaison, shall review the potential Brady and Giglio material and any other information found to be relevant and material to the particular case. This shall be done in accordance with all relevant case law and court rules. The prosecutor is to review the material and determine whether it should be disclosed to the court for an ex parte, in camera review or whether it should be disclosed to the defense. It is the prosecutor’s duty to recommend whether, to what extent, and/or in
what manner disclosure to the defense and/or the court shall occur. This shall be done in accordance with the approval process set out in each county’s policy.
- Procedures for Disclosure. After review of the potential Brady and Giglio material, there are three possible outcomes: (1) no disclosure; (2) disclosure will be made to the defense; or (3) disclosure will be made to the court for an ex parte, in camera , judicial review. Each county’s policy shall establish and maintain a procedure for notifying the investigative employee and/or the employee’s agency prior to disclosure. This will serve as notice to the investigative employee and agency and as an opportunity for the agency and employee to verify the accuracy of the noted Brady and Giglio material.
For all disclosures, whether made to the defense directly or after the court orders disclosure, the prosecutor shall notify the investigative employee and agency of the disclosure. The prosecutor shall also provide the investigative employee and agency with copies of all disclosed material.
With respect to the disclosed material, the prosecutor shall seek redactions to protect the privacy interests of third-parties and investigative personnel. The prosecutor shall also seek protective orders to limit the use and further dissemination of the material. Finally, each county’s policy shall incorporate a procedure for informing the investigative employee, as well as that person’s agency, of decisions made by the court as to the disclosure and/or admissibility at trial of any disclosed Brady and/or Giglio information.
A decision to disclose in one case does not dictate the decision to disclose in subsequent cases. The prosecutor, in consultation with the prosecutor’s designee or Giglio liaison, must evaluate each piece of potential Giglio information on a case-by- case basis to determine whether the material must be disclosed under the law or submitted to the court for an ex parte, in camera review.
Importantly, if the prosecutor makes the decision not to use an investigative employee because of Brady or Giglio concerns, or if the relevant Brady or Giglio information substantially affected the case in any way, the County Prosecutor’s Office shall notify the appropriate individual in that agency of the decision. The procedure for such notification shall be set by the County Prosecutor. After the required disclosures are made, the investigative employee may seek review of that determination from the County Prosecutor or their designee, or from the Office of Attorney General. This review shall not interrupt or interfere with the prosecutor’s obligation to disclose information in the ongoing case.
Because a Giglio determination requires a case-by-case determination, promulgating a “do-not-call” list of individuals who can never be called as witnesses is not a
D. Effective date. This Directive shall take effect March 1, 2020, and shall remain in force and effect unless and until it is repealed, amended, or superseded by Order of the Attorney General.
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Gurbir S. Grewal Attorney General ATTEST:
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Jennifer Davenport First Assistant Attorney General Dated: December 4, 2019
