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Published on Monday, January 29, 2018

Bill clarifying use of evidence of law enforcement officer misconduct has hearing in the Senate

Prosecutors have a duty to disclose to defense counsel evidence that tends to show that the defendant is not guilty. This duty is based on the constitutional right to a fair trial, as explained in a United States Supreme Court case, Brady v. Maryland. When a prosecutor violates this duty it is referred to as a “Brady violation.”

Prosecutors must also disclose evidence that could be used to discredit (or “impeach”) witnesses. Potential impeachment evidence is any information that calls into question the witness’ credibility or competence. For example, a law enforcement officer’s misconduct related to truthfulness, bias, or other behavior could show that the criminal defendant is not guilty. Such evidence of an officer’s misconduct must be disclosed under Brady.

SB 6188 clarifies the use of information of law enforcement officer misconduct by a law enforcement agency. The bill requires that:

  1. A law enforcement agency may not take disciplinary action or any other adverse personnel action against a law enforcement officer solely because:
    • The officer’s name has been placed on a list maintained by a prosecuting attorney’s office of recurring witnesses for whom there is known potential impeachment information; or
    • The officer’s name may otherwise be subject to a Brady disclosure.
  2. A law enforcement agency is not prohibited from taking disciplinary action or any other adverse personnel action against an officer based on the underlying acts or omission of the impeachment or Brady information, but the agency’s actions must conform to collective bargaining rules and procedures.

SB 6188 has a public hearing in the Senate Law & Justice Committee on Monday, January 29 at 10 am, and is scheduled for executive session on Thursday, February 1 at 10 am.

AWC is opposed to this bill. Please contact Logan Bahr with any questions.

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