By Rachel Moran
Brady lists, named after the Supreme Court decision Brady v. Maryland,1 are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility in criminal cases.2 Brady and its progeny require prosecutors to disclose exculpatory evidence within the government’s possession or control to defendants in criminal cases.3 This includes evidence that could impeach a witness’s credibility.4 Evidence that a police officer involved in a criminal case has, for example, previously written a false police report, lied in court, or used racial slurs during an arrest may be exculpatory because it casts doubt on the officer’s truthfulness, credibility, and impartiality.5 Brady lists originated from this disclosure obligation: the lists ostensibly allow prosecutors to keep track of, and disclose to defense counsel when necessary, information that negatively impacts officers’ credibility.6 Brady lists are simple in concept and complicated in practice. Prosecutorial practices around maintaining and using Brady lists vary widely and are almost completely unregulated.7Neither federal nor most state laws require prosecutors to maintain Brady lists, and recent journalist investigations suggest that most prosecutor offices do not maintain such lists.8 The lists that do exist are not all equal. Some prosecutor agencies maintain expansive lists of police officers who are accused of or found to have committed misconduct of nearly any kind,9 while others limit their Brady lists to officers with histories of dishonesty orcriminal convictions.10 Disclosure practices are similarly inconsistent: some prosecutors maintain Brady lists as internal mechanisms for assessing credibility concerns about their own officerwitnesses and refuse to provide their lists to people outside the office.11 Others affirmatively disclose their lists to defendants in criminal cases.12 Some make the lists available to the public.
