Brady and Giglio lists are not simply administrative devices—they are legal instruments with profound implications for every part of the criminal legal process. At the center of that process are the two adversarial roles in a trial: the prosecutor, who represents the state, and the defense attorney, who defends the accused. Each of these roles is shaped and constrained by the information disclosed—or withheld—about the credibility of the state’s key witnesses, particularly law enforcement officers.
This chapter explores how the existence, use, and sometimes misuse of Brady and Giglio material fundamentally shape the work of prosecutors and defense attorneys. It examines the procedural demands imposed on each side, the ethical obligations they must navigate, and the tactical consequences that arise when law enforcement witnesses are tainted by past misconduct. We also analyze the broader systemic effects of non-disclosure, from wrongful convictions and mistrials to civil rights lawsuits and institutional mistrust.
In every courtroom, truth is presumed to be paramount. But when critical information about a witness’s credibility is hidden or ignored, the adversarial system fails—not because the rules are absent, but because they are unevenly applied. This chapter lays bare the real-world impact of Brady/Giglio obligations, failures, and reforms on both prosecution and defense.
Prosecutors are not only advocates for conviction—they are “ministers of justice,” as described by the American Bar Association and many courts. This means their obligation is not simply to win but to ensure fairness. Their duty to disclose favorable or impeaching evidence is rooted in both the U.S. Constitution and ethical codes that govern prosecutorial behavior.
When a prosecutor becomes aware that a law enforcement officer scheduled to testify in a criminal trial has a history that could impeach their credibility, they are constitutionally required to disclose that information to the defense. This might include:
Internal affairs records showing dishonesty
Criminal charges or convictions
Prior disciplinary findings
Bias, racism, or excessive force complaints
Past judicial findings questioning the officer’s credibility
This obligation exists regardless of whether the defense requests the information. It is an affirmative duty that extends beyond evidence of innocence to include any information that might cast doubt on the reliability or veracity of the prosecution’s case.
Despite the clarity of the obligation, many prosecutors struggle to meet their Brady and Giglio responsibilities. Reasons include:
Lack of access to police disciplinary records: In some jurisdictions, these are protected by union contracts, state laws, or internal policies that limit visibility.
Unclear criteria for disclosure: Not every prosecutor agrees on what qualifies as impeachment material. Is a decade-old complaint relevant? What about an ongoing investigation?
Time and resource constraints: Some prosecutors, especially in overburdened public offices, do not have the capacity to conduct thorough reviews of officer histories.
Institutional resistance: Police departments may fail to inform prosecutors when credibility issues arise or may even pressure them not to disclose known misconduct.
The result is a fragmented landscape in which some offices disclose extensively and proactively, while others default to a minimalist, reactive model.
Being on a Brady list may not disqualify an officer from testifying, but it does create a strategic dilemma for the prosecutor.
If a listed officer is a necessary witness—such as the arresting officer, lead detective, or only eyewitness to an event—the prosecution must weigh whether their testimony is worth the risk. Disclosure may damage the credibility of the state’s case and empower the defense to undermine its theory of guilt.
In high-stakes cases, prosecutors may be forced to abandon charges or seek plea deals rather than risk trial with a compromised witness. In other situations, they may attempt to rehabilitate the officer through corroborating evidence or by minimizing the significance of the impeachment material.
In some offices, prosecutors maintain a “do-not-call” list—a subset of the Brady list identifying officers so severely compromised that they will never be used as witnesses. This approach helps preserve prosecutorial integrity but often requires retraining or reassignment of officers within police departments.
This can create tension between prosecutors and law enforcement, especially when an officer with a long history in the department is deemed unfit to testify. Prosecutors may face pressure to look the other way or downplay the significance of the officer’s misconduct, particularly in cases with strong public or political implications.
In some cases, prosecutors will proactively dismiss charges when they realize that the primary officer is a known Brady issue. More commonly, they may offer unusually favorable plea deals—reduced charges, probation instead of jail, or time served—in order to avoid going to trial with a compromised witness.
While this may preserve court resources and avoid embarrassment, it can also undermine public trust. Victims may feel justice was denied, and defendants may accept pleas not because they are guilty but because the alternative is too risky. Moreover, the root problem—officers with credibility issues—remains unaddressed.
Defense attorneys depend on access to Brady and Giglio material to mount an effective challenge to the state’s case. Yet in many jurisdictions, they face steep obstacles to obtaining timely and complete disclosures.
One of the most significant problems for the defense is late disclosure. Prosecutors may wait until just before trial to share impeachment material—or may not disclose it at all unless the defense files a specific motion. This leaves defense attorneys little time to investigate, strategize, or adjust their theory of the case.
In capital cases or those involving complex forensic or factual disputes, timing is critical. A late disclosure may prevent the defense from calling counter-witnesses, obtaining expert analysis, or preparing an effective cross-examination. It may also prevent a proper plea evaluation—leading to uninformed decisions by the accused.
In some jurisdictions, prosecutors provide only summaries or heavily redacted versions of Brady material, citing privacy concerns or ongoing investigations. This limits the defense’s ability to assess the full scope of the officer’s credibility problems. If defense counsel cannot access the underlying facts, they cannot properly confront or impeach the officer on cross-examination.
This practice raises constitutional concerns. The Sixth Amendment guarantees the right to confront one’s accuser. That right is hollow if the accuser’s credibility cannot be fully examined before a jury.
When defense counsel does receive Brady or Giglio material, it can transform the entire trajectory of a case. Strategic uses include:
Filing suppression motions: If an officer lied in the affidavit for a warrant or during interrogation, any resulting evidence may be excluded.
Negotiating pleas: Knowledge of a compromised officer may give the defense leverage to secure better outcomes.
Framing the narrative: The defense can argue that the case is built on “rotten timber”—casting doubt on the entire prosecution by focusing on the dishonest officer.
Civil litigation preparation: Some Brady disclosures lay the groundwork for future civil rights suits, particularly when false arrest or malicious prosecution is involved.
Yet these strategic advantages are only available when disclosures are timely and complete—a standard that remains far from universal.
When Brady and Giglio obligations are ignored or poorly enforced, the harm extends far beyond the individual case. The failure to disclose officer credibility issues can result in:
Countless exonerations have involved undisclosed Brady material—whether physical evidence, witness statements, or impeaching information about officers. When an officer’s misconduct is hidden, and their word is taken as truth, innocent people go to prison. In some cases, this misconduct has been intentional; in others, it was enabled by institutional indifference.
Late-stage disclosures can lead judges to declare mistrials or dismiss cases outright. While this may correct the immediate harm, it wastes court resources, retraumatizes victims, and delays justice for all parties involved.
Failure to disclose Brady material opens the door to Section 1983 lawsuits and wrongful conviction claims. Cities and counties have paid millions in damages due to police dishonesty that prosecutors either ignored or failed to investigate. The financial cost is borne by taxpayers, but the reputational cost falls on the justice system itself.
When the public learns—through lawsuits, media, or leaks—that law enforcement agencies protect dishonest officers or that prosecutors suppress credibility evidence, faith in the justice system erodes. Jurors may become more skeptical, witnesses less cooperative, and entire communities disengaged. The rule of law suffers.
Ensuring that Brady and Giglio material fulfills its purpose requires systemic reforms across both prosecution and defense functions.
Prosecutors should establish dedicated Brady/Giglio units with trained personnel tasked with tracking and disclosing material in every case. These units must have access to internal affairs records and the independence to challenge resistance from law enforcement agencies.
Jurisdictions should develop centralized, statewide databases of Brady-flagged officers, accessible to both prosecutors and defense counsel. These databases should include not only sustained misconduct but also judicial findings and documented patterns of concern.
Courts should hold regular Brady/Giglio compliance hearings to review disclosures before trial. This ensures that defense counsel has time to prepare and that the state cannot ambush the defense with late or limited information.
Both prosecutors and defense attorneys must be trained on the scope and importance of Brady/Giglio law. Judges, too, must be willing to impose sanctions for violations—including exclusion of evidence, dismissal of cases, and referral to disciplinary bodies.
The adversarial nature of the justice system presumes that prosecutors and defense attorneys are operating on a level field, where truth emerges through challenge and counter-challenge. But that presumption collapses when one side possesses information that the other cannot access—especially when that information concerns the truthfulness of the government’s own witnesses.
Brady and Giglio material is not merely a procedural tool; it is a constitutional guarantee. Its proper use can prevent wrongful convictions, ensure fair trials, and hold the most powerful actors in the system accountable. Its misuse or suppression, by contrast, undermines everything the justice system purports to defend.
For prosecutors, this means more than avoiding misconduct—it means embracing the ethical responsibility to disclose fully, honestly, and without delay. For defense attorneys, it means demanding access, challenging omissions, and using disclosure to defend the presumption of innocence. For both, it means recognizing that justice cannot exist without candor—and that the price of failure is too high to ignore.