0320.00 Portland Police Bureau Reporting of Potential Exculpatory or Impeachment Information
0320.00, Portland Police Bureau Reporting of Potential Exculpatory or Impeachment Information
- Brady v. Maryland, 173 U.S. 83 (1963)
- Giglio v. United States, 405 U.S. 150 (1972)
- ORS 135.815, Disclosure to defendant
- ORS 181A.830, Disclosure of information about certain public safety employees
- ORS 192.345, Public records conditionally exempt from disclosure
- ORS 192.355, Public records exempt from disclosure
- HB 4205 (2020), Relating to duties of police officers regarding prohibited behavior
- Human Resources Administrative Rule 2.02, Prohibition Against Workplace Harassment, Discrimination, and Retaliation
- DIR 0300.00, Statement of Ethical Conduct
- DIR 0310.00, Professional Conduct and Courtesy
- DIR 0310.50, Truthfulness
- DIR 0310.20, Discrimination, Harassment, and Retaliation Prohibited
- DIR 0330.00, Internal Affairs, Complaint Intake, and Processing
- DIR 0331.00, Supervisory Investigations
- DIR 0332.00, Administrative Investigations
- DIR 0333.00, Criminal Investigations of Police Bureau Employees and Other Law Enforcement Agency Sworn Employees
- DIR 0335.00, Discipline Process
- DIR 0900.00, General Reporting Guidelines
- Professional Standards Division Standard Operating Procedure #14, Case File Confidentiality and Access Control.
- Multnomah County District Attorney’s Office Policy 3.071: Government Witness Impeachment Index
- Duty to Report: The affirmative constitutional duty of law enforcement to notify the prosecutor of any exculpatory or impeachment information.
- Potential Brady Material:
- any information or material that tends to:
- (1) favor the defendant;
- (2) exculpate the defendant;
- (3) negate or mitigate the defendant’s guilt or punishment; or to
- (4) impeach the credibility of any government witness, including but not limited to, police officers.
- For this Directive, potential exculpatory or impeachment information is encompassed in the term “Potential Brady Material.”
- Examples of Potential Brady Material include, but are not limited to:
- Criminal convictions or criminal charges against any government witness.
- Failure of any proposed witness to make a positive identification of a defendant.
- Any inconsistent statement made orally or in writing by any proposed witness.
- Information regarding mental or physical impairment of any government witness that would cast doubt on their ability to testify accurately and truthfully.
- Evidence that a proposed witness has a racial, religious, or personal bias against a defendant individually or as a member of a group.
- A sustained finding of misconduct regarding a member’s dishonesty, bias, or excessive use of force in conjunction with their service as a member.
- Altering, tampering, concealing, or misusing evidence in any investigation.
- any information or material that tends to:
- Prosecutor: For this Directive, the applicable prosecutorial entity for the case at issue, i.e., U.S. Attorney, County District Attorney, or Oregon Attorney General.
1. This policy exists to ensure timely disclosure of an appropriate scope of exculpatory and impeachment information to ensure that trials are fair and to ensure that prosecutors receive sufficient information to meet their disclosure obligations relating to the credibility of government witnesses.
2. This policy provides Portland Police Bureau members with the information necessary to comply with the requirements of Brady v. Maryland, 173 U.S. 83 (1963), and Giglio v. U.S., 405 U.S. 150 (1972), and subsequent rulings regarding the disclosure of exculpatory and impeachment evidence to criminal defendants, and establishes the procedures for reporting Potential Brady Material to the Prosecutor.
3. Brady and subsequent rulings require the Prosecutor to disclose to the defendant any evidence that is both favorable to the defendant, and material to the defendant’s guilt and/or punishment, including evidence that impeaches the credibility of a government witness.
4. The Bureau recognizes that materiality is a legal issue to be decided in court, and courts decide whether something is Brady material retrospectively. Therefore, the Bureau shall err on the side of disclosure and allow Prosecutors to make decisions about materiality.
5. The Bureau further recognizes that it is the Prosecutor’s responsibility to determine whether to disclose material provided by the Bureau to the criminal defendant.
6. Both general criminal investigations, and internal investigations regarding member misconduct (as found in criminal, administrative, and supervisory investigations), can yield Potential Brady Material. This policy establishes the procedures for reporting all Potential Brady Material to the Prosecutor, as required by law.
1. Duty to Report and Identify Potential Brady Material.
1.1. The Bureau and its members have a duty to report Potential Brady Material to the Prosecutor. That obligation extends from the time of arrest through trial and sentencing.
1.2. The Bureau and its members shall exercise due diligence to identify and provide Potential Brady Material in the Bureau’s possession to the Prosecutor as soon as practicable.
1.3. Allegations that cannot be substantiated; are not credible; or have resulted in exonerated, not sustained, or unfounded findings are generally not Potential Brady Material.
2. Member Reporting and Investigating Responsibilities.
2.1. Member Responsibilities When Investigating a Criminal Case.
2.1.1. Members shall exercise due diligence to identify and provide Potential Brady Material they possess regarding criminal cases they are working, or have worked, to the Prosecutor as soon as practicable, on an on-going basis.
2.1.2. Members shall document in their investigative reports all information they reasonably believe is Potential Brady Material (e.g., the failure of any proposed witness to make a positive identification of a defendant).
2.1.3. Members report Potential Brady Material to the Prosecutor by submitting their reports electronically through the normal reporting process.
2.2. Reporting Member Misconduct.
2.2.1. Members should be aware that member misconduct may constitute Potential Brady Material. Therefore:
18.104.22.168. Members shall report alleged member misconduct in accordance with Directive 0310.00, Professional Conduct and Courtesy, and Directive 0330.00, Internal Affairs, Complaint Intake, and Processing, and as required by state law.
22.214.171.124. Members shall report alleged member criminal conduct in accordance with Directive 0333.00, Criminal Investigations of Police Bureau Employees and Other Law Enforcement Agency Sworn Employees, and as required by state law.
126.96.36.199. When a supervising member becomes aware of Potential Brady Material regarding alleged member misconduct, the supervising member shall immediately forward the information directly to Internal Affairs.
3. Potential Brady Material in Internal Affairs Investigations.
3.1. The Professional Standards Division (PSD) Commander or designee shall affirmatively report the following to the Multnomah County District Attorney’s Office (MCDA), or any Prosecutor who submits a written request for Potential Brady Material:
3.1.1. All allegations of member misconduct regarding a member’s dishonesty, bias, evidence mishandling, or excessive force, regardless of the outcome.
3.1.2. All allegations of member misconduct that the Prosecutor specifically requests, consistent with ORS 135.815(2)(b).
3.1.3. Such allegations shall be reported via a confidential submission per ORS 192.355(4) and may contain the following: case number, complainant name, incident date, reported date, status, status date, allegation type, allegation statement, applicable directive, and finding.
3.2. The PSD Commander or designee shall affirmatively report to the MCDA, or any prosecutor who submits a written request for Potential Brady Material, all criminal convictions and charges against any member, and any criminal investigation of any member that amounts to Potential Brady Material.
3.3. Prosecutorial Review.
3.3.1. The PSD Commander shall allow a mutually agreed upon Prosecutor designee from the relevant Prosecutor’s office to review, on-site at the Portland Police Bureau, all criminal, administrative, and supervisory investigations against members to identify Potential Brady Material, upon request.
188.8.131.52. Prosecutors must sign a confidentiality agreement before reviewing files in accordance with PSD Standard Operating Procedure #14, Case File Confidentiality and Access Control, and Independent Police Review (IPR) procedures.
3.4. Prosecutorial Responsibilities.
3.4.1. It is the Prosecutor’s decision how to evaluate Potential Brady Material. This decision includes whether or not Potential Brady Material is material to a specific case and whether or not to include members on any list or in any database, such as the MCDA’s Potential Impeachment Disclosure Index (PID Index). The PID Index is the database used by the MCDA to track impeachment evidence regarding state witnesses (sometimes informally referred to as a “Brady list”).
3.4.2. The Prosecutor is responsible for managing its own list or database related to impeachment evidence, including any procedures for including members and for appeals.
3.5. Professional Standards Division and Detective Division Responsibilities and Member Notification.
3.5.1. The PSD is responsible for monitoring all criminal, administrative, and supervisory investigations of members.
3.5.2. The PSD Commander or designee is responsible for the Bureau’s affirmative reporting of Potential Brady Material in Internal Affairs Investigation files, IPR investigation files, and criminal investigation files of members.
3.5.3. The Detective Division Commander or designee is responsible for identifying Potential Brady Material in criminal investigation files of members and reporting to the PSD Commander.
3.5.4. On a weekly basis, the PSD Commander or designee shall review allegations provided by IPR for Potential Brady Material. The PSD Commander shall coordinate with IPR to obtain all IPR investigation files that either the PSD Commander or IPR Director reasonably believe contain Potential Brady Material.
3.5.5. The PSD Commander or designee shall notify members in writing when the Bureau affirmatively reports information about the member to the Prosecutor regarding the member’s internal investigation file(s), unless doing so would jeopardize an ongoing investigation of the member.
3.5.6. The PSD Commander or designee shall request a copy of MCDA’s PID Index quarterly and shall attempt to remain informed of Bureau members listed therein.
3.6. Member Privacy and Rights.
3.6.1. This Directive does not change the confidential nature of member personnel files.
3.6.2. This Directive does not change the requirements of public records law exemptions imposed on the City, the Bureau, and the Prosecutor regarding member personnel files.
3.6.3. A member’s inclusion on the PID Index or any “Brady list” is not independent grounds for member discipline or termination.
3.6.4. The PSD Commander or designee shall provide members with information regarding the MCDA review process and the member’s rights upon request.
- Originating Directive Date: 6/2/2022
- Last Revision Signed: 5/3/2022
- Effective Date: 6/2/2022
- Next Review Date: 6/2/2023