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What is a Brady List?

The Brady List is the previous name for the Potential Impeachable Disclosure Policy and Protocol, which includes police officers and others where there could be potential impeachment material in a court case. The Brady name comes from Brady v. Maryland, a United State Supreme Court decision stating that the government should not withhold evidence that could affect a defendant’s guilt or punishment.

“Brady obligations” is really a shorthand way of referring to three distinct but overlapping obligations of prosecutors to disclose potential impeachment material to defense. See additional details about “Brady obligations” at the bottom of this Q-and-A.

Where was the first Brady List in Washington State?

The King County Prosecuting Attorney’s Office created the first Brady List in Washington State in 2007, and our list if the model now used by prosecuting attorneys’ offices across Washington, Oregon and other areas. Dan Clark, who is now Chief of our Criminal Division, created the list back in 2007. 

Is the information from the Potential Impeachable Disclosure (Brady) List give to defense attorneys?

Yes, in each case involving a PID officer the King County Prosecuting Attorney’s Office discloses what we know to the defense. Since this document was created by our office in 2007, we have not had any cases overruled for failing to disclose information on the Potential Impeachable Disclosure Policy and Protocol.

Another way to say that is, in cases involving officers included in the Potential Impeachable Disclosure Policy and Protocol, we have not had a case overturned since that document was created – because the King County Prosecuting Attorney’s Office shows that information from the start.

Why are officers on the PID/Brady List still working?

The King County Prosecuting Attorney’s Office does not make hiring or employment decisions for police, and the 39 agencies in King County are separate from our office.

By law, our office does not have investigative authority – we independently review the cases referred to us by police and make charging decision based on evidence.

Some officers with potential impeachment material are still in the field making arrests and locating evidence – that decision rests with the police agency. For some agencies, those officers are not in the field and for others, they are terminated. 

If a PID officer makes an arrest or locates evidence, we examine the case and decide on an individual basis if we can proceed. If we do file charges, we absolutely disclose the material to defense, regardless of if we decide to call that witness in trial or not.  

Are cases involving PID/Brady List officers still charged?

If our case rests entirely on the credibility of one officer alone who is on the Brady list, we’d examine that case very, very carefully before making a filing decision, and may decline to file because we feel we cannot sustain the State’s burden. 

It is quite unusual for there to be a circumstance where a case rests entirely on the word of one particular officer with no corroborating evidence whatsoever. Most cases have some additional corroborating evidence such as other witnesses/officers/victims’ statements, as well as physical evidence, such as body cams, dash cams, surveillance cams, etc.  

It is not a regular occurrence for these officers to testify in our trials. It is not a regular occurrence because for some agencies those officers are terminated, and for others they are not actively in the field making arrests or finding evidence.  When it does come up, it is always disclosed to defense counsel and brought before the trial judge who decides on the admissibility of the impeachment material.

Is the King County Prosecuting Attorney’s Office PID/Brady List public?

Yes, we’ve routinely shared this information with the public since 2007 in response to public disclosure requests, and we’ll continue to do so. You can fill out our public records request form here.

“Brady obligations”

“Brady obligations” is really a shorthand way of referring to three distinct but overlapping obligations of prosecutors to disclose potential impeachment material to defense. We willingly comply with all, and error on the side of disclosure in any close situations. 

They are: 

  • The Due Process clauses of the State and Federal Constitution require prosecutors to disclose all material evidence that is favorable to the defense including exculpatory information and evidence to impeach prosecution witnesses.

     

  • Criminal Rule 4.7(a)(3), states prosecutors “shall disclose to defendant’s counsel any material or information within the prosecuting attorney’s knowledge which tends to negate defendant’s guilt as to the offense charged.”

     

  • Rule of Professional Conduct 3.8(d), states that a prosecutor in a criminal case shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense ….”  

The constitutional Due Process requirement for disclosure of exculpatory evidence is set out in Brady v. Maryland, 373 U.S. 83 (1983). This requirement has been explained and modified by numerous subsequent cases.  Both the Washington Supreme Court and federal courts have interpreted these duties expansively. The United States Supreme Court in Kyles v. Whitley described the disclosure duty as follows: 

This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. This is as it should be. Such disclosure will serve to justify trust in the prosecutor as “the representative...of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.”…And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. The prudence of the careful prosecutor should not therefore be discouraged. 

(citations omitted)  Kyles v. Whitley, 514 U.S. at 439-40 (1995).

We are well aware of our obligations, and error on the side of disclosure.  The King County Prosecuting Attorney’s Office policy says exactly that on page 1: 

A prosecutor’s disclosure responsibilities derive from both the constitution and from state rules. In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that "the 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."  The duty to disclose exists even where a defendant has not requested materially exculpatory information and the duty includes impeachment evidence.  Strickler v. Green, 527 U.S. 263 (1999).  The duty extends to information solely in the possession of investigators, meaning prosecutors are responsible for knowing what the police possess. Kyles v. Whitley, 514 U.S. 419 (1995).  The prosecution does not have an obligation to disclose preliminary, challenged or speculative information. United States v. Agurs, 427 U.S. 97, 109 n.16 (1976).  However, "the prudent prosecutor will resolve doubtful questions in favor of disclosure” because it is extremely difficult to discern before trial what evidence will be deemed “material” after trial.  Id. at 108; United States v. Acosta, 357 F.Supp.2d 1228, 1233 (2005).

 Court and practice rules also address a prosecutor’s duty to disclose information. Prosecutors are required by Criminal Rule 4.7(a)(3) to “disclose any material or information within the prosecuting attorney’s knowledge which tends to negate a defendant’s guilt as to the offense charged.”  "Impeachment evidence" is defined by Evidence Rules 607, 608, and 609.  The rule-based disclosure obligations are broader than the due process right but are “limited to material and information within the knowledge, possession or control of members of the prosecuting attorney’s staff.”  CrR 4.7(a)(4).  Information supplied by law enforcement agencies to prosecutors is immediately subject to disclosure under this rule.  Similar concurrent duties are placed on prosecutors by Rule of Professional Conduct 3.8(d).

For a Brady violation to occur, three elements must be satisfied:

(1) the State failed to disclose evidence that is favorable to the accused, either because it is exculpatory or impeaching;

(2) the State suppressed the evidence either willfully or inadvertently; and

(3) the undisclosed evidence was prejudicial.

The King County Prosecuting Attorney’s Office has not failed to meet our Brady obligations, including in cases reviewed by judges. In cases where judges have reviewed our handling of Brady material, we would encourage folks to review the written findings by the judges.

This post was last updated April 29, 2022.

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King County Prosecutor
Dan Satterberg
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Phone:
206-477-1200
Email:
Prosecuting.Attorney@kingcounty.gov

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