In connection with our work representing law enforcement unions and their member officers, we are spending an ever-increasing percentage of our time dealing with so-called Giglio issues. For those that don’t know, Giglio issues relate to the obligation of a prosecutor to disclose to a criminal defense lawyer/defendant relevant information relating to the credibility, bias or impairment of any of their witnesses, obviously including law enforcement officers.
Although this prosecutorial obligation has existed since at least 1972, it has only become a significant issue in the State of Maine over the last three to four years. State prosecutors, perhaps due to increased attention to this issue by the federal prosecutors, have only recently started to focus on this issue. In Giglio v. U.S., 405 U. S. 150 (1972), the United States Supreme Court overturned a conviction due to the prosecutor failing to disclose to defense counsel an offer of leniency made to a prosecution witness. The holding is based on the obligation under Brady v. Maryland, 373 U. S. 83 (1963) to disclose to defense counsel all exculpatory information.
Typically, Giglio issues arise for law enforcement officers when they have been accused of some form of dishonesty in their professional life. When law enforcement officers are accused of being untruthful, it has significant impacts upon their career. If allegations of untruthfulness are sustained, it becomes particularly problematic. Fortunately, prosecutors almost universally agree that if allegations of untruthfulness are not sustained, even if it takes an arbitrator to overturn a finding of untruthfulness, an officer does not have a Giglio problem.
One common misperception about Giglio is that if an officer does have something in their past that might impact upon their credibility, that this automatically disqualifies them from testifying. This is simply not accurate. A Giglio problem may need to be disclosed to the defense counsel, but that does not preclude the officer from testifying. The obligation to report Giglio issues to a prosecutor starts with the law enforcement officer themselves and primarily rests with the chief law-enforcement officer of a particular agency. The best way to describe the process is to think of a funnel. Substantial concerns about an officer’s credibility should be reported to the prosecutor. In other words, they go into the big part of the funnel. Many such concerns will be excluded from the obligation to disclose by a prosecutor’s decision. As you move toward the narrow part of the funnel, some concerns may be substantial enough to warrant an in camera review by the court. Some of that information may be disclosable to defense counsel, but that does not guarantee that it will be admissible at the hearing or trial. Only a very limited subset of the information tendered to a prosecutor will actually be admissible.
It should be noted that in 2013 the Maine Legislature passed legislation which immunized governmental officials from civil or criminal liability for disclosing Giglio related information to a prosecutor. It was felt that this amendment was necessary because of the confidentiality provisions related to government employee records under Maine law.
We spend a substantial amount of time representing law enforcement officers when they have been wrongfully accused of Giglio related violations. We also undertake substantial efforts to educate chief law-enforcement officers as to what are and are not actual Giglio issues. We have also worked closely with the Maine Chief’s Association in developing their model policy regarding Giglio for chief law-enforcement officers and for prosecutors. In our opinion, two key elements of this policy are as follows. First, that before a chief discloses potential Giglio information to a prosecutor, or before a prosecutor discloses potential Giglio information to the court or to the defense, they should inform the law-enforcement officer to give them and their representatives an opportunity to have input as to whether or not it is truly a Giglio issue. Second, that there is a gradient of potential Giglio problems ranging from a minor issue (for example if an officer called in sick when they really were not sick) to a major issue which likely would be career ending (for example a final determination that officer lied under oath).
In conclusion, the most important take away regarding Giglio is that if an officer engages in dishonesty or untruthfulness, that he or she is potentially placing their career in jeopardy. Honesty is of paramount importance; the failure to be truthful could lead to an officer being Giglio impaired, even if the underlying situation by itself would not have led to serious discipline.