By John V. Berry, Esq., www.berrylegal.com
In our legal practice of representing law enforcement officers in their administrative defense and civil matters, it is important to always keep issues of truthfulness and candor under consideration when investigations or other types of cases arise. If a law enforcement officer has been accused of being dishonest in some way, it is very important to rebut these allegations as soon and strongly as possible in order to avoid long term career difficulties in law enforcement. In our experience, sustained allegations of untruthfulness or lack of candor often lead to termination or removal actions from law enforcement employment, and from there they can lead to a difficulty for the individual in obtaining a new law enforcement position. For these reasons, the concept of Giglio is very important to law enforcement officers and agents.
Giglio comes from the case of Giglio v. United States, 405 U.S. 150 (1972). Giglio was a United States Supreme Court opinion in 1972 which held that prosecutors essetnially acquired a duty to disclose evidence about the credibility of government witnesses (often law enforcement witnesses) which had to be turned over following a request by defense counsel. “Giglio material” refers to material tending to impeach the character or testimony of a prosecution witness in a criminal proceeding. Defense counsel will then use the findings of deceptiveness or dishonesty to impeach a law enforcement officer's account in a criminal proceeding.
The major problem for law enforcement officers, in our practice, has been that once a negative credibility determination against them has been sustained, that it tends to impact their career. If the officer tends to be a primary or solo witness in a pending criminal case, a prosecutor may decline to take the case forward because of this issue, even if the case is meritorious. Furthermore, a prosecutor may also decline to take future criminal cases involving the officer forward where he or she is the primary or sole witness. This, in the view of some police departments, has lessened the value of Giglio impaired officers. Many law enforcement agencies take the view that a Giglio impairment reduces the law enforcement officer’s value to such an extent that he or she should not be retained. As a result, when allegations of dishonest conduct against an officer have been sustained, these sustained allegations often lead to termination proposals. Such officers have been often referred to as Giglio-impaired.
A 'Giglio-impaired' law enforcement officer, generally, is one against whom there is potential impeachment evidence that would render the officer or agent’s testimony of debatable value in a case, meaning that a case that depends primarily on the testimony of a single Giglio-impaired witness is at risk. See Hathaway v. Department of Justice, 384 F.3d 1342, 1349 (Fed. Cir. 2004). Giglio impairment varies in severity between jurisdictions and many prosecutor's offices do not maintain consistent data on which officers are effected. There should be far more nationwide consistent standards for dealing with these types of Giglio issues.
What Should Officers Facing Giglio Issues Do?
Law enforcement officers facing Giglio issues should consult an attorney as soon as possible in order to obtain legal advice and representation to attempt to resolve the Giglio issues. The earlier the allegation of character or dishonest conduct is challenged, the better the chance that the allegation can be rebutted or resolved. Typically, police officers face these types of issues in numerous types of situations, from on-duty report writing, to off-duty conduct in many forms.
For example, a Giglio disclosure can arise from the following examples (and many others): (1) a sustained internal affairs complaint of deceptive conduct or truthfulness by the officer (even if there is no discipline issued), (2) a finding that a police officer withheld information from an internal or external law enforcement investigation, (3) sustained allegations that a police officer improperly reported their working hours or overime, (4) sustained allegations of theft by the officer, or (5) a finding that the officer was not truthful in personal or public life. The examples are numerous.
Two Recent Giglio Cases
As one can see, Giglio can play a role in termination proceedings, especially in the federal sector. Giglio issues do not always result in termination, but they often can. A few recent cases are attached below:
Ramos v. DHS, 2014 MSPB LEXIS 202 (M.S.P.B. Jan. 14, 2014) (law enforcement officer removed for sustained findings of lack of candor related to alleged false statements made to other law enforcement officers during traffic stop in addition to potential Giglio concerns).
Walker v. DHS, 2013 MSPB LEXIS 1114 (M.S.P.B. Feb. 28, 2013) (agent removed for sustained findings about allegedly providing false statements about evidence obtained in a case) (MSPB upholding deciding official’s termination decision, noting that a law enforcement officer was sworn to tell the truth, and now that he was “Giglio impaired,” he would be unable to perform his job duties and could not be rehabilitated).
When facing issues of truthfulness or candor it is important for a law enforcement officer to obtain the advice of counsel where potential Giglio issues might arise. Our law firm stands ready to advise law enforcement officers on issues involving truthfulness concerns and their administrative defense. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page can also be found here.