Editorial: Keeping Exculpatory Evidence Secret Creates Credibility Issues

Wednesday, September 05, 2018

The New Hampshire Attorney General’s Office recently declined to reveal the names of about 170 current and former police officers whose credibility is in doubt. The remarkable rationale for this is, according to the Concord Monitor, that officers’ privacy rights outweigh the people’s right to know which officers have violated the public trust by, for example, lying under oath or falsifying evidence.

In turning down the Monitor’s public records request, Senior Assistant Attorney General Francis Fredricks wrote that disclosing the list would do little to “inform the public about the conduct and activities of their government” because it does not include a detailed description of or the context for the conduct that caused the officer to be placed on the list. Moreover, he argued, personnel records are shielded from disclosure under state law.

The list, once called the Laurie List and now renamed the Exculpatory Evidence Schedule, exists because prosecutors have an obligation to turn over to defendants in criminal cases information that may be favorable to their defense. This requirement extends to information about credibility problems involving government witnesses, including police officers.

Earlier this spring, Attorney General Gordon MacDonald revised the rules for compiling the list. Police officers will no longer be included on it while a misconduct investigation is under way but only after misconduct is confirmed. Meanwhile, the officer is on scout’s honor to report the pending investigation to prosecutors in cases in which he or she might be called to testify. This change was cast as an act restoring the due process rights of police officers in accordance with mandates from the New Hampshire Supreme Court.

So in this upside down world, police officers have privacy rights that trump the public’s right to know and due process rights that trump a criminal defendant’s right to a fair trial.

As to the specifics of nondisclosure, Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire, told the Monitor that the state’s right-to-know law “makes clear that personnel file information can be produced where there is a significant public interest in disclosure.” Not only that, while the list may include information that also exists in personnel files, it is a separate document maintained by the Attorney General’s Office.

Moreover, if the Attorney General Office’s objection is that the list lacks detail and context of the misconduct, that would seem to be easily remedied by creating a comprehensive record that presumably also would help prosecutors make better-informed decisions about what to disclose to the defense.

The Attorney General could also do a public service by explaining how the list is compiled and maintained.

Are rules for reporting police misconduct to the Attorney General’s Office clear and uniform from police department to police department throughout the state? Or is it possible that the same conduct by an officer in two different jurisdictions might land one on the list and another one not?

Are prosecutors in New Hampshire bound to disclose exculpatory evidence only when they deem it “material” to the case, that is, when it would probably affect the outcome? Or must they turn over any evidence favorable to the defendant, so that his or her own lawyer can make the determination of its relevance? The Marshall Project, a nonprofit news organization that covers the criminal justice system, reports that Tennessee recently adopted ethics rules that require all favorable evidence to be disclosed to the defense, joining 11 other states in doing so.

Are prosecutors required to consult the list when police officers will be testifying in a pending case? Or may they turn a blind eye to it? And are they obligated to disclose credibility problems early enough in the process so the defense can make use of the information not only at trial, but also in pretrial plea-bargain negotiations? This is important because most cases are resolved by plea agreements, and to provide effective counsel, defense lawyers need to be able to assess during those negotiations how strong the state’s case is.

The secrecy surrounding the Exculpatory Evidence Schedule needs to be addressed. Any government process that affects whether an individual is deprived of his or her liberty needs to be subject to public scrutiny or it will almost surely be subject to abuse. And more generally, the public has a right to know whether the public servants it employs are performing their duties in accordance with their legal and ethical obligations.