ATTORNEY, PROSECUTING—LAW ENFORCEMENT OFFICERS—Whether The Name Of A Law Enforcement Officer May Be Removed From A Potential Impeachment Disclosure List

ATTORNEY, PROSECUTING—LAW ENFORCEMENT OFFICERS—Whether The Name Of A Law Enforcement Officer May Be Removed From A Potential Impeachment Disclosure List

There is no authority for removing names of law enforcement officers from a Brady list based simply on the passage of time. Whether other circumstances might justify removal from a Brady list is a fact-specific inquiry not susceptible to an across-the-board answer. But case law makes clear that prosecutors should err on the side of disclosure in any case in which they are unsure.

April 18, 2025

Dear Prosecutor Banks:

           By letter previously acknowledged, you have requested our opinion on the following question:

Once a prosecutor adds a law enforcement officer’s name to a list of potential impeachment disclosures, under what circumstances may the prosecutor remove the officer’s name from that list?

BRIEF ANSWER

           The federal and state constitutions as well as court and ethical rules require prosecutors to disclose evidence that is favorable to someone accused of a criminal offense, including potential impeachment evidence that may cast doubt on the credibility of a potential witness for the government. The case law strongly encourages prosecutors to make disclosures even in cases where the obligation to do so is debatable. For that reason, a model policy adopted by the Washington Association of Prosecuting Attorneys properly urges disclosure when a prosecutor is unsure as to their duty. See Washington Association of Prosecuting Attorneys, Model Policy for Washington Prosecutors for Potential Impeachment Disclosure 3-4 (June 17, 2022) (Model Policy).^[1] We urge the same. Once prosecutors know of information or allegations about a law enforcement officer that constitutes potential impeachment evidence, we find no authority to

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suggest that the mere passage of time relieves them of the obligation to disclose that information to criminal defendants.^[2]

The more difficult question is whether the disclosure obligation goes away if the factual basis for the potential impeachment evidence is later called into question, e.g., if an officer was accused of misconduct but later cleared of wrongdoing in whole or in part. There is no Washington or federal authority addressing this scenario, and it is impossible to give an across-the-board answer, because such decisions would depend on the specific facts of the case. Prosecutors will have to make careful, difficult assessments in such cases. In Washington, courts have not recognized a legal right that would entitle officers to removal from a Brady list, whereas an incorrect removal presents risks of constitutional violations and could lead to a case being dismissed or a conviction overturned.

BACKGROUND

           Prosecutors have an obligation to disclose to criminal defendants information that could be favorable to them and is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). This obligation is rooted in the fundamental right to a fair trial. Id. at 86-87. Favorable information includes both exculpatory evidence and evidence that can be used to impeach government witnesses, such as law enforcement officers. United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150, 154 (1972).

           “Brady lists”^[3] originated from this disclosure obligation. Rachel Moran, Brady Lists, 107 Minn. L. Rev. 657, 659 (2022). Prosecutors often maintain these lists to identify government witnesses with histories of misconduct or other issues that could impact the witness’s credibility. Id. at 658; State v. Stotts, 26 Wn. App. 2d 154, 158 n.1, 527 P.3d 842 (2023). Not all jurisdictions around the country require Brady lists, and prosecutorial practices around maintaining and using Brady lists vary widely. Moran, 107 Minn. L. Rev. at 659-60.

           In 2021, the Washington Legislature passed, and the governor signed, Substitute H.B. 1088, 67th Leg., Reg. Sess. (Wash. 2021),^[4] requiring each county prosecutor to “develop and adopt a written protocol addressing potential impeachment disclosures pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and subsequent case law.” SHB 1088, § 1 (codified as RCW 10.93.180(1)(a)). The bill specified that the protocols address, among other things, “under what circumstances an officer’s information or name may be removed from any list of potential impeachment disclosures.” SHB 1088, § 1 (codified as RCW 10.93.180(1)(a)(iii)).

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           To facilitate compliance with Substitute H.B. 1088, the Best Practices Committee of the Washington Association of Prosecuting Attorneys adopted a model policy about the disclosure of potential impeachment information. See Model Policy at 2. The Model Policy outlines the responsibilities of both law enforcement agencies and prosecutors. The committee’s goal was to develop a broadly applicable policy framework that complies with the relevant legal mandates, while also allowing for flexibility for individual prosecutors’ offices. Model Policy at 2.

ANALYSIS

           We begin our analysis by describing the basic requirements of Brady and cases following it. We then describe the Model Policy developed by the Washington Association of Prosecuting Attorneys to guide Washington prosecutors in implementing Brady. Finally, we consider your question about the removal of names from a Brady list.

           The United States Supreme Court held in Brady that a state violates a defendant’s right to due process under the Fourteenth Amendment if it withholds evidence that is favorable to the accused and is material either to guilt or punishment. Brady, 373 U.S. at 86-87. Evidence is “material” within the meaning of Brady when there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. A prosecutor’s withholding of favorable material evidence violates due process “irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.

           In subsequent cases, the Court made clear that Brady’s holding extends to evidence affecting a government witness’s credibility, often called impeachment evidence. Bagley, 473 U.S. at 676; Giglio, 405 U.S. at 154. It also made clear that prosecutors have an affirmative obligation to disclose such evidence regardless of whether defense counsel specifically requests it. Bagley, 473 U.S. at 682; United States v. Agurs, 427 U.S. 97, 110 (1976). Additionally, it held that prosecutors have an obligation to learn of any information favorable to the defense that is known to others acting on the government’s behalf in a case, including the police. Kyles v. Whitley, 514 U.S. 419, 437 (1995).

           The purpose of Brady is “to ensure that a miscarriage of justice does not occur[,]” Bagley, 473 U.S. at 675, and to preserve fair trials for criminal defendants, Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006). As such, prosecutors are urged to err on the side of disclosure in close cases. See Kyles, 514 U.S. at 439 (“[A] prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. . . . This is as it should be.” (Citation omitted.)); Agurs, 427 U.S. at 108 (“Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.”); Ames v. Pierce County, 194 Wn. App. 93, 117-18, 374 P.3d 228 (2016) (“It is well settled that where a prosecutor is unsure whether evidence amounts to potential impeachment evidence or is exculpatory, the prosecutor should err on the side of disclosure.”).

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           In addition to due process requirements, court rules and ethical rules require prosecutors to disclose information favorable to the defendant. Under Criminal Rule 4.7(a)(3), prosecutors must disclose to the defendant’s counsel “any material or information within the prosecuting attorney’s knowledge that tends to negate defendant’s guilt as to the offense charged.” Under Rule of Professional Conduct 3.8(d), prosecutors must, among other things, “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, and, in connection with sentencing, disclose to the defense and to the tribunal all mitigating information known to the prosecutor . . . .” A prosecutor’s obligation to disclose exculpatory information extends from pre-trial to post conviction. In re Pers. Restraint Petition of Gentry, 137 Wn.2d 378, 397 n.9, 972 P.2d 1250 (1999).

           In 2022, following the enactment of Substitute H.B. 1088, the Washington Association of Prosecuting Attorneys adopted the Model Policy, which provides “best practices” guidance to Washington prosecutors concerning potential impeachment information. Model Policy at 2. In that context, the Model Policy instructs prosecuting attorneys to create a Potential Impeachment Disclosure Committee (PID Committee) and to maintain a Brady list. Id. at 9, Nos. 2, 4. It states that prosecutors should include on the list “the names of all potentially recurring witnesses whom the PID Committee has determined engaged in conduct that must be disclosed because it may be favorable to the defense.” Id. at 9, No. 4. Prosecutors should also include, without any need for review by the PID Committee, officers with sustained findings of misconduct (as determined by a law enforcement agency) involving dishonesty, bias, or criminal convictions as well as officers on Brady lists in other jurisdictions. Id. at 9-10, Nos. 6, 8. Additionally, prosecutors should include officers with pending investigations and should categorize those officers as “Pending PID” while the investigations are in progress. Id. at 10, No. 7.

           The Model Policy also offers some guidance about what to do once an officer is on the Brady list. With respect to officers with sustained findings of misconduct, if either new information comes to light or a finding of misconduct is later overturned by the law enforcement agency, the Model Policy says that the PID Committee “shall consider the new information or revised finding and determine whether the officer should be removed from the [Brady] list or if other modifications should be made.” Model Policy at 9, No. 6. But the Model Policy does not provide any insight into how the PID Committee is to evaluate the new information or what circumstances might warrant modification or removal from a Brady list.

           With respect to an officer with a “Pending PID” status, the Model Policy states that the “Pending PID” designation “will be modified consistent with the final PID determination” upon receipt and review of the completed investigation. Model Policy at 10, No. 7. But similarly, the Model Policy does not explicitly advise as to the way in which the prosecutor should modify the designation. Clearly, if the investigation concludes that the charges are sustained then the “pending” designation should be removed and the officer’s name should remain on the list. If the charge is not sustained, however, the Model Policy does not say whether an officer’s name should be removed; instead, it specifies that the PID Committee should make its own determination

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about what to do “to comply with its constitutional, statutory, and rule-based PID obligations.” See Model Policy at 6, No. 6; see also id. at 10, No. 9 (describing the list as including final and pending determinations, without mentioning a category where an investigation cleared the officer of wrongdoing).

           Accordingly, the Model Policy does not explicitly answer the question you raise here. You ask: Once a prosecutor adds an officer’s name to a Brady list because the prosecutor knows of information about that officer that constitutes potential impeachment evidence, under what circumstances can that officer’s name be removed from that list?

           We can find no case law suggesting that an officer’s name should be removed based simply on the passage of time. While the passage of time might go to the weight a jury should give to the officer’s alleged wrongdoing or to the court’s decision whether to admit discussion of it into evidence, we have found no case suggesting that the mere passage of time justifies removing an officer’s name from a Brady list.

           Two other circumstances are more difficult to assess. The first circumstance is that of an officer who is added to a Brady list in a “Pending PID” status because of an ongoing investigation, but that investigation ultimately clears the officer. The second circumstance arises when an officer is included on a Brady list because of a substantiated charge but that conclusion is either later overturned or new information arises calling it into serious question.

           Unfortunately, we find it impossible to give an across-the-board answer that will apply in every such circumstance, because there is no case law on point and the decision to remove an officer from a Brady list will ultimately turn on the specific facts of each case. That said, a few general observations may help prosecutors make these decisions.

           First, as noted above, in doubtful cases the safer course will be for the prosecutor to leave the officer on the list. The case law discussed above makes this clear, and as a practical matter, a mistake in failing to disclose potential impeachment evidence can lead to serious negative consequences, including the violation of the defendant’s rights, dismissal of charges, overturning a conviction, allegations of violating the Rules of Professional Conduct, or even a wrongful conviction. Such harms can seriously undermine the integrity of the criminal justice system and the public’s trust in it. Meanwhile, Washington law does not recognize a law enforcement officer’s right to removal from a Brady list. In any event, a prosecutor’s decision to disclose potential impeachment evidence will virtually always be protected by prosecutorial immunity, even if incorrect, because prosecutors in Washington enjoy absolute immunity for acts performed within the scope of traditional prosecutorial functions, like maintaining a Brady list. See McCarthy v. County of Clark, 193 Wn. App. 314, 337, 376 P.3d 1127 (2016) (a prosecutor’s absolute immunity applies to actions within the scope of traditional prosecutorial functions); Roe v. City & County of San Francisco, 109 F.3d 578, 584 (9th Cir. 1997) (“a prosecutor’s professional evaluation of a witness is entitled to absolute immunity even if that judgment is harsh, unfair or clouded by personal animus”); Lane v. Marion Cnty. Dist. Att’y’s Off., 310 Or. App. 296, 306-10, 486 P.3d 38

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(2021) (noting that several federal district courts have concluded that a prosecutor’s decision to place an officer on a Brady list is a prosecutorial function entitled to absolute immunity and suggesting that “Brady is the constitutional floor, not the ethical ceiling”).

           Second, in circumstances where the only basis for an officer’s inclusion on a Brady list is later deemed incorrect (e.g., (1) where the officer was listed in a “Pending PID” status while an investigation took place and the investigation entirely exonerated the officer, or (2) where the officer was placed on a list solely because of one incident, and new information later came to light showing conclusively that the officer did nothing wrong), there is an argument to remove the officer from the Brady list. In fact, a few courts in other states have ruled that officers may have grounds for judicial relief, including removal from Brady-type lists, if they have been exonerated of all of the underlying allegations. See, e.g., Duchesne v. Hillsborough Cnty. Att’y, 167 N.H. 774, 782-85, 119 A.3d 188 (2015) (recognizing that inclusion on a Brady-type list carries a stigma and concluding that basic notions of fairness entitle officers to removal where the only conduct at issue was determined to be unfounded and would also not be admissible to impeach the officers’ general credibility); Fraternal Order of Police Lodge 5 by McNesby v. City of Philadelphia, 267 A.3d 531, 550-52 (Pa. Commw. Ct. 2021) (concluding that officers’ constitutionally protected interest in their reputations requires a meaningful opportunity to be heard prior to placement on a Brady-type list and a mechanism to seek removal if the grounds for placement on the list are shown to be unfounded and that immunity did not bar officers’ claims for injunctive relief). That said, these cases are fact-specific, based primarily on those states’ laws and constitutions, and pertain specifically to officers for whom the original allegations were deemed fully unfounded, especially by neutral factfinders. No court has determined that officers in Washington have any similar right under Washington or federal law, so there is currently no similar obligation in Washington. Moreover, were a prosecutor to omit officers from Brady disclosure on this basis, they may be relying on the integrity of a particular police department’s administrative misconduct system, rather than adjudication by a neutral factfinder of the misconduct allegations at issue.

           Likewise, if an officer has been placed on a Brady list because of a specific incident, and an arbitrator or court later reduces the officer’s punishment but still finds some basis for the allegation, that generally would not provide a basis for removal from the Brady list. See, e.g., Gantert v. City of Rochester, 168 N.H. 640, 650, 135 A.3d 112 (2016) (concluding that there was still a basis to keep an officer on the Brady-type list even though an arbitrator reduced the punishment because the officer’s conduct implicated his general credibility); see also Model Policy at 6, No. 7. This is because a reduction in punishment does not eliminate the finding of wrongdoing. Furthermore, an officer’s rights under a collective bargaining agreement, which could allow for the expungement of disciplinary records under certain circumstances, do not override the constitutional rights of criminal defendants or the prosecutor’s corresponding obligations under Brady. See Model Policy at 6, No. 8.

In the absence of any case law on point, Washington prosecutors will need to use their best judgment in these circumstances based on the facts of the particular case. And a prosecutor always has the option to disclose the information but then move in court to exclude any discussion of the incident from consideration based on the later exoneration.

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           In sum, we can find no basis to remove an officer’s name from a Brady list based simply on the passage of time. Whether other circumstances warrant removal will necessarily be a case-specific determination dependent on the facts. And in debatable cases, prosecutors should err on the side of disclosure, as case law and the Model Policy suggest. See, e.g., Ames, 194 Wn. App. at 117-18 (counseling prosecutors to err on the side of disclosure).

           We trust that the foregoing will be useful to you.

NICHOLAS W. BROWN

  Attorney General

KELLY A. PARADIS

  Deputy Solicitor General

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