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As described in detail in Chapter 6, the privacy interests of members of the public may also be harmed by full disclosure of information if so, some form of redaction or disguising of identifiable data may be necessary. Similarly, discovery rules may include certain exceptions to protect sensitive information, which if consistent with constitutional obligations, must be followed. For example, if agencies collect health information or tax information that is statutorily protected, legal rights may be implicated by disclosure. In such cases redactions, or, in rare instances, non-disclosure to the defense, may be warranted. Exceptions to disclosure rules-generally the concern of the prosecutors rather than policing agencies-may limit disclosure of evidence when it might affect significant privacy, confidentiality, or safety concerns. This obligation extends not only to traditional evidence, in the form of a witness or a document, but also to evidence that is a product of new technology, such as a new type of forensic test or a new database search, which allows new information to be drawn from old evidence.Ĭ. If evidence comes to light when a case is closed or after a conviction, police retain an ongoing obligation to evaluate that evidence and disclose it to the prosecutors. Again, when in doubt about the relevance of given information in such situations, agencies should opt for disclosure.ī. For instance, relevant statutes or agency policy may require release of body-camera footage or police reports of arrests to the press. Occasionally, disclosure may need to be made by agencies directly to a third party. Discovery rules set out in statutes or court rules also may create obligations to disclose discovery in criminal cases.
Constitutional requirements require, as noted, that the prosecution team be responsible for sharing favorable evidence with the defense, regardless of whether officers have shared that information with prosecutors or not. Further, such disclosures should be prompt, such that prosecutors can disclose information in earlier stages, in order to permit fair and informed plea negotiations. As required under § 2.05, even if such information is considered proprietary, agencies should seek it from developers and provide it to the prosecutors in appropriate cases.
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In the case of algorithms, legal actors also may need access to its code and information concerning how it is constructed and validated. The use of undercover agents or an algorithm in a particular case also should be disclosed. Thus, information about police misconduct during an investigation should be disclosed. Information that should be disclosed to prosecutors includes not only substantive facts such as witness statements and forensic evidence, but also information about the processes used in collecting such evidence. It is the prosecutor’s job, not the agency’s, to decide when information is exculpatory, material, or relevant in a criminal case. When in doubt about relevance, information should be disclosed to prosecutors.
Consistent with §§ 6.05 and 6.06 (which limit agency access to police databases to legitimate law-enforcement purposes and appropriate personnel), agencies should provide prosecutors with all relevant information so that prosecutors can fulfill their roles. Prosecutors have constitutional, statutory, and ethical obligations to disclose information to the defense. Relevance as the standard for disclosure. Except when information must be redacted for confidentiality, privacy, and safety purposes, agencies should share all relevant evidence with prosecutors, in an ongoing fashion, regardless of the status of an investigation or criminal case.
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