Image by ^Berd via Flickr

In both of the examples discussed in my prior post on this subject, other than the dismissal of the charges, the officers suffered no repercussions that I know of. The District Attorney continued to use those officers as witnesses and in spite of the requirement that all potentially exculpatory evidence be provided to all defendants, nothing was probably ever said about these numerous officers in both incidents, having perjured (a felony) themselves in prior cases. As usual, the discovery of this evidence, which would so soundly discredit these officers as witnesses, is left to the discovery by the diligent counsel of a defendant. How can your counsel or you know what you don’t know about these officers?

Of course, none of the witnesses in the three examples above were prosecuted for perjury. However, under 404(b) their actions in those prior cases become relevant to the case you’re involved in.

Rule 16 further provides:

(2)The prosecuting attorney shall disclose to defense counsel any material or information within his possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.I think a motion could be filed under this provision that prior incidents of perjury by the accusing officers would “[tend] to negate the guilt of the accused.”

Another provision of Rule 16 could also be used in a similar manner:

(d)Discretionary Disclosures.
(1)The court in its discretion may, upon motion, require disclosure to defense counsel of relevant material and information not covered by Parts I(a), (b), and (c), upon a showing by the defense that the request is reasonable.

Again, the motion would be framed in such a manner that the prosecution would be required to provide prior incidents in the officer’s employment records or prior cases in which the charges were dismissed based upon the perjury of the officer. Perhaps the judge could even be called upon for assistance in revealing these prior incidents. The complete dismissal of all charges is rare and therefore memorable from a judge’s standpoint. Then, use the information to discredit the officers in court if your case gets that far. I don’t think it will.

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Barry Smith 720-203-5142

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