Under Brady v. Maryland, 373 U.S. 83 (1963), a police officer may be subjected to an internal investigation, commonly known as a “Brady investigation”. While people tend to think of a Brady list as a “dirty cop” list, the reality is that any officer can find his way to the Brady list. Sometimes the most innocent of actions can result in an officer being “bradied”, including for speaking out about injustice in the department or for running for sheriff against the current seated sheriff. These investigations are long and hostile-feeling processes that are designed to question the integrity of the officer.
Despite protection laws at the state and federal level, Brady is being used to extract information from police without the constitutional protections afforded by due process. There is no right to silence in a Brady investigation, so an officer may find themselves being disciplined for refusing to answer a question. Sometimes, jurisdictions will conduct interviews months after an initial event takes place, and with very little warning. You may be asked the same question repeatedly over the course of multiple interviews spanning months. Unfortunately, even the smallest inconsistency in testimony can result in an untruthfulness finding, which is a terminable action.
While some states have legislated that you cannot discipline an officer solely for their status on a Brady list, Oregon is not among them. Being on a Brady list can have long-term effects to an officer’s reputation and can jeopardize their ability to present as a credible witness in a criminal proceeding. Accordingly, officers are often scared to come forward with concerns about the department.
If you are an officer who finds themself subject to a Brady investigation, you should:
1. Get Advice. Seek out the advice of an attorney licensed in your state who specializes in employment matters, and has experience representing public employees (and ideally police officers).
2. Stay organized. Keep documentation of your prior testimony. Review that testimony frequently and thoroughly so you can readily recall details about prior events.
3. When answering questions in a Brady interview, consider the following:
1) Keep your answers short and direct.
2) Take your time formulating answers to questions.
3) Try not to guess if you don’t recall the answer to a question. It’s better to say you don’t remember than submit incorrect sworn testimony.
4) Use statements that allow for memory inconsistencies, such as “I am unsure,” “I do not have a specific recollection,” “I answered this in a previous interview, I believe my recollection was clearer then,” “I need to refresh my recollection with the documents,” etc.
5) Ask to take a short break if you are feeling overwhelmed or emotional.
If you are able, try to retain legal counsel to be present during the interview. Legal representation can help you understand your rights during the Brady process, as well as help preserve information necessary for any subsequent or concurrent litigation. Contact an employment attorney for more information and answers to specific questions. Your local state bar association may be able to connect you to a free or reduced rate consultation, and your police union may also be able to assist with locating an attorney in your area.
THIS ARTICLE IS MEANT TO BE INFORMATIONAL AND IS NOT TO BE CONSTRUED TO BE LEGAL ADVICE.