PDAA Offers Guidelines on Disclosing Potential Credibility Issues Involving Police Witnesses

December 11, 2019

HARRISBURG, PA – Guidelines on how to disclose possible credibility issues involving law enforcement officers — intended to ensure prosecutorial and investigative integrity — were issued today by the Pennsylvania District Attorneys Association (PDAA).

Released by PDAA’s Best Practices Committee, the guidelines provide clear recommendations for district attorneys and law enforcement. They cover the disclosure of any evidence that could call into question the credibility of a law enforcement officer testifying in trial.

Two U.S. Supreme Court cases have held that such disclosures are part of a prosecutor’s constitutional duty to turn over evidence that may exonerate a defendant. PDAA is one of the first statewide prosecutors’ organizations to have issued standard protocols related to this issue.

Failure to abide by these rules can infringe upon defendants’ rights or result in dismissal of a case, or even hundreds of cases, either immediately or at a later date, so it is crucial to have clear and comprehensive protocols about this requirement.

“PDAA’s Best Practices Committee was created to provide prosecutors with tools to assist in the proper administration of justice,” said PDAA President and Pike County District Attorney Raymond A. Tonkin. “Making proper disclosures regarding any witness’ credibility is an important part of protecting the integrity of the criminal justice system. On the rare occasion where a law enforcement officer’s credibility could be an issue, these protocols offer a clear and consistent process to ensure prosecutors have access to the most up-to-date information from police departments and agencies.”

Often called Giglio (pronounced GIG-leo) material and based on the high court’s rulings in Brady v. Maryland and Giglio v. United States, the guidelines define Giglio material and how law enforcement should report it to the district attorney’s office. The guidelines also cover how the District Attorney’s Office should review and respond to reports of Giglio material.

Additionally, the guidelines include processes for officer notification and reconsideration of the alleged Giglio offense.

Actions that could be considered Giglio material include, but are not limited to:

  • Dishonesty in the line of duty.
  • Misconduct that is relevant to a prosecution or investigation and negatively affects the integrity of a prosecution or investigation.
  • Pending criminal charges or a conviction that would result in the loss of law enforcement privileges in Pennsylvania.
  •  Bias or prejudice toward any constitutionally protected group.

Neither the Pennsylvania courts nor the U.S. Supreme Court have developed a comprehensive checklist of Giglio material, so there is some ambiguity around everything that might be covered. Police departments should check with their local district attorneys when potential Giglio issues arise.

Each elected district attorney has the discretion to determine how to best use the PDAA guidelines and may adapt the protocol to best serve their county’s needs. Some of those factors could be the size of the district attorney’s office, the number of police departments, and the types of police coverage. For instance, a district attorney’s office with only two prosecutors would run the procedures for review differently than a district attorney’s office with dozens or hundreds of prosecutors.

Pennsylvania law does not currently require public disclosure of Giglio matters, and neither the Pennsylvania courts nor the legislature have addressed the issue.

The determination, tracking, and disclosure of constitutionally required Giglio materials are separate from any disciplinary measures taken by police departments.

“Giglio issues can be complicated and often are misunderstood, even by law enforcement,” said PDAA Best Practices Co-Chair and Chester County District Attorney Tom Hogan. “These guidelines provide clarity and a process that prosecutors can use to uphold the highest standards of integrity in investigations, prosecutions, and convictions.  Maintaining Giglio standards protects victims, good police officers, defendants, and the integrity of the criminal justice system itself.”

The protocol issued today is the result of over two years of work by the PDAA’s Best Practices Committee.  The committee studied the issue, reviewed policies used in various Pennsylvania jurisdictions and other states, conferred with academics and experts in the field of prosecutorial ethics, and met with law enforcement officials, including working street officers, union representatives and police chiefs, to develop the policy and protocols.

“As an organization, we have always taken the position of being proactive and engaging on issues to ensure the system is working for everyone,” said PDAA Best Practices Committee Co-Chair and Dauphin County District Attorney Fran Chardo. “We hope offering smart approaches, like these guidelines, help prosecutors continue to do the right thing for the right reasons and maintain the public’s confidence in the criminal justice system.”

Frequently asked questions and answers about PDAA’s Giglio guidelines are available here.

A copy of the model policy is available here.

About the PDAA’s Best Practices Committee

The PDAA’s Best Practices Committee serves as a collaborative, non-partisan network to identify best practices, research, and legal methods to assist in the proper and just evolution of the criminal justice system.   Created in 2014, the committee formalized PDAA’s long history of identifying and promoting reforms and efficiencies to protect the innocent, convict the guilty, and ensure justice for the victims of crime.

The committee will periodically release other proposed best practices addressing important issues.  The committee already has addressed guidelines regarding eyewitness identifications, body-worn cameras, officer-involved shootings, and internal office policies.  PDAA’s Best Practices have been presented at national conferences and in other states, resulting in model reforms for practices throughout the United States.

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December 11, 2019

Contact: Lindsay Vaughan, Executive Director of the Pennsylvania District Attorneys Association lvaughan@pdaa.org or (717) 238-5416.