officer untruthfulness and its impact on the law enforcement profession 2015 poag conference ryan p....

Officer Untruthfulness and Officer Untruthfulness and its Impact on the Law its Impact on the Law

Enforcement ProfessionEnforcement Profession

2015 POAG Conference2015 POAG Conference

Ryan P. PowellRyan P. Powell

TOWN OF FALMOUTH vs. CIVIL SERVICE COMMISSION & another. TOWN OF FALMOUTH vs. CIVIL SERVICE COMMISSION & another. 61 Mass. App. Ct. 79661 Mass. App. Ct. 796September 9, 2004September 9, 2004

"[a] breach of the standard of truthfulness is a "[a] breach of the standard of truthfulness is a serious offense for a police officer. An serious offense for a police officer. An agency needs to be able to rely upon its agency needs to be able to rely upon its police officers to provide truthful police officers to provide truthful information . . . [and] courts need to be able information . . . [and] courts need to be able to rely on the testimony of police to rely on the testimony of police officers . . . . When a police officer lies, it officers . . . . When a police officer lies, it has a negative impact on the credibility of has a negative impact on the credibility of the entire department."the entire department."

Since 1963, a series of U.S. Supreme Court Since 1963, a series of U.S. Supreme Court decisions has clarified that, in a criminal case, decisions has clarified that, in a criminal case, prosecutors prosecutors mustmust disclose to the defense disclose to the defense evidence favorable to the defendant. This evidence favorable to the defendant. This includes information that may be used to includes information that may be used to impeach the credibility of government impeach the credibility of government witnesses, including law enforcement officers. witnesses, including law enforcement officers. These decisions mean that officers who have These decisions mean that officers who have documented histories of lying in official documented histories of lying in official matters, falsifying reports, or expressing bias matters, falsifying reports, or expressing bias may become even greater liabilities to their may become even greater liabilities to their agencies because their records may render agencies because their records may render them unable to testify credibly and them unable to testify credibly and consequently unable to work effectively as law consequently unable to work effectively as law enforcement officers.enforcement officers.

The Police Chief, vol. 72, no. 11, November 2005Lisa Judge, Legal Advisor

Tucson, AZ Police Dept.

Class ScheduleClass Schedule

Hour 1 – Relevant Case LawHour 1 – Relevant Case Law

Hour 2 – Georgia POST statistics on Hour 2 – Georgia POST statistics on discipline of peace officers accused discipline of peace officers accused of lying & falsifying documentsof lying & falsifying documents

Case LawCase LawSupreme Court CasesSupreme Court Cases

Brady v. Maryland (1963)Brady v. Maryland (1963)

Giglio v. United States (1972)Giglio v. United States (1972)

United States v. Agurs (1976)United States v. Agurs (1976)

United States v. Bagley (1985)United States v. Bagley (1985)

Kyles v. Whitley (1995)Kyles v. Whitley (1995)

Brady v. Maryland373 U.S. 83 (1963)

Facts of case:Facts of case: Two men, Brady and Boblit, were found guilty of

1st degree murder and sentenced to death. Brady admitted participation in the crime but

said Boblit did the actual killing. Before trial, Brady’s attorney requested Boblit’s

extra-judicial statements from the prosecution. Attorney was given some, but not all

statements. One missing statement was Boblit’s confession

to the homicide. The evidence was not discovered until after Brady was tried, convicted and sentenced to death.

Core of Case: Due process requires the disclosure of “evidence favorable to an accused upon request… where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Brady et al. Essentials

This includes sustained findings of untruthfulness after a departmental investigation.

In short, an officer’s personnel file is “fair game” for criminal defense attorneys to impeach an officer on the witness stand because an officer’s credibility is a material issue and lack of credibility is potentially exculpatory evidence.

Brady v. MarylandBrady v. MarylandIssue and HoldingIssue and Holding

Issue: Whether Brady was denied a federal right after Maryland Court of Appeals remanded the case for new trial on issue of punishment only.

Held: Prosecutorial suppression of Boblit’s confession violated Due Process Clause of Fourteenth Amendment to United States Constitution.

Administrative Impact on Public Administrative Impact on Public Safety OfficersSafety Officers

Subsequent to Brady, the Supreme Court held that evidence which may be used to impeach the testimony of a government witness falls within the scope of Brady when the credibility of the witness may have an effect on the

jury’s determination of guilt or innocence. The Supreme Court modified the Brady rule to require the

government to disclose exculpatory evidence even when the Defendant has not requested the information. Giglio at 107. (The Brady-Giglio Requirement).

The Brady-Giglio requirement extends to police officers called by the government to testify.

What must be disclosed?What must be disclosed?Entire Personnel FilesEntire Personnel Files

Court confronted with the issue of what type of information contained in personnel files of law enforcement officers is required to be released to the defense.

Defendant requested prosecution “produce the personnel files of all law enforcement witnesses who it intends to call at trial…for evidence of pergurious conduct or other things like dishonesty, in camera, to determine if those portions of the officer’s personnel files ought to be made available to the defense for impeachment purposes.”

The trial court denied the request.

On appeal, the Ninth Circuit reversed and remanded the case instructing that the prosecution was “incorrect in its assertion that it is the defendant’s burden to make an initial showing of materiality. The obligation to examine the files arises by virtue of the making of a demand for their production.”

United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), cert. denied 503 U.S. 972 (1992).

What must be disclosed?What must be disclosed?Mere Speculation is Mere Speculation is NotNot Enough Enough

Contrary to United States v. Henthorn, courts in the 6th, 7th, and 11th circuits have held that the contents of Police personnel files need not be produced without sufficient evidence from the Defendant that impeaching or material evidence is contained in the personnel file.

“ Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an

undue burden upon the district court.” United States v. Quinn, 123 F.3d 1415 (1997) 11th Circuit

What must be disclosed?What must be disclosed?Information Known Information Known OnlyOnly by Law Enforcement by Law Enforcement The Supreme Court and federal courts have expanded the

duty to disclose exculpatory and impeachment evidence to include information known only by law enforcement, even if the Prosecution is unaware.

Accordingly, Prosecutors are not permitted to claim ignorance and have duty to discover information known by law enforcement.

In Youngblood v. West Virginia, 547 U.S. 867, 870 (2006), the Supreme Court stated that Brady is violated when the government fails to turn over evidence that is “known only to police investigators and not to the prosecutor.”

In other words, prosecutors have “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”

What must be disclosed?What must be disclosed?DOJ Policy for DisclosureDOJ Policy for DisclosureU.S. Department of Justice Policy: Each investigative agency

employee must inform prosecutors of potential impeachment materials as early as possible before providing sworn statements or testimony in any criminal investigation or case.

Investigative agencies must disclose certain information. Substantiated allegations: any findings of misconduct demonstrating bias or lack of candor or truthfulness;

Pending investigations or allegations: any credible allegation of misconduct that reflects upon the truthfulness or possible bias of the employee who is the subject of a pending investigation;

Criminal Charges: any past or pending criminal charges against employee;

Allegations that are unsubstantiated, not credible, or have resulted in exoneration: When such allegations can be said to go to the truthfulness of the employee, even they must be revealed to the prosecutor under certain circumstances.

Brady & Civil LiabilityBrady & Civil LiabilityCriminal defendants have begun to bring 42 USC § 1983 claims

against officers and agencies where potentially exculpatory information has not been disclosed. This include general exculpatory information and information regarding officer’s truthfulness or credibility.

Law enforcement agencies may face two types of civil liability in the Brady context:

1. A law enforcement agency’s systematic failure to comply with Brady requirements could be found to be a “pattern and practice,” under § 1983.

2. Law enforcement agencies may incur liability if they “fail to train” officers regarding the disclosure requirements in Brady.

Some Circuits require “bad faith” to be proven on the part of police officers or other governmental agents to demonstrate entitlement to damages pursuant to 42 U.S.C. § 1983, while other Circuits do not require “bad faith.”

Important Advice for LE LeadershipImportant Advice for LE Leadership Evaluate how officers will be assessed by the Prosecutor’s Office or

District Attorney’s Office if truthfulness or credibility charges are sustained.

Determine whether Prosecutors or District Attorneys in your jurisdiction keep a “Brady List” or designate disciplined officers as “Brady Officers”. This may tip off Prosecutors, D.A.s, or your Department to these concepts when they may not know.

Share this information and the consequences of it with your leadership and officers.

Counsel officers facing discipline for their truthfulness or credibility as to the gravity of the charges and potentially career ending consequences.

Work with your Department to ensure that disciplinary charges unrelated to truthfulness or credibility are clear and that officers are not overcharged.

Points to RememberPoints to RememberFor all Law Enforcement OfficersFor all Law Enforcement Officers Always disclose information to the Prosecutor which may be

exculpatory.

In most criminal cases, evidence and information regarding your truthfulness and credibility is required to be disclosed to defendants.

Even the appearance of impropriety in your record can subject you to being placed on a Brady list or impeached at trial.

Recognize the potential for career ending administrative action if you are accused of any untruthfulness or dishonesty.

Be prepared for the seriousness of the situation.

Attempt to avoid any sustained findings of untruthfulness or dishonesty in order to preserve your employment record.

Giglio v. United States405 U.S. 150 (1972)

In Giglio v. United States the Supreme Court extended the obligation to share exculpatory information with the defendant to include information concerning the credibility of government witnesses.

Giglio was convicted of forgery primarily on the testimony of an unindicted coconspirator.

At trial, the co-conspirator testified that he had not received any promises of leniency in exchange for his testimony against Giglio, when in fact the prosecutor who presented the case to the grand jury had promised not to prosecute him in exchange for testifying. The Court was unimpressed with the trial prosecutor's claims that he knew nothing of the deal. "When the reliability of a given witness may be determinative of guilt or innocence," the Court wrote, "nondisclosure of evidence affecting credibility falls within this general rule."

Giglio-Impaired OfficersGiglio-Impaired Officers

When an officer testifies at a criminal trial, their agency is required to turn over to the prosecution any information that reflects on the officers credibility:

Under Giglio, investigative agencies must turn over to prosecutors, as early as possible in a case, potential impeachment evidence with respect to the agents involved in the case. The prosecutor then exercises his or her discretion as to whether the impeachment evidence must be turned over to the defense. A “Giglio-impaired” agent is one against whom there is potential impeachment evidence that would render the agent's testimony of marginal value in a case, which means that a case that depends primarily on the testimony of a Giglio-impaired witness is at risk.

Honesty is the best Giglio policy.

““Everyone makes mistakes, but Everyone makes mistakes, but honesty in acknowledging any honesty in acknowledging any

misconduct, and honesty in turning misconduct, and honesty in turning over any potential impeachment over any potential impeachment information to prosecutors, is the information to prosecutors, is the

best way to keep both your best way to keep both your credibility and your law enforcement credibility and your law enforcement

career.”career.”

United States v. Agurs United States v. Agurs 427 U.S. 97 (1976)427 U.S. 97 (1976)

In United States v. Agurs the Supreme Court expanded the rule

further by recognizing a duty to disclose exculpatory information

even in the absence of a specific request for it.

The female defendant was convicted of second-degree murder in

the stabbing death of a male acquaintance. The defendant had

claimed self-defense. After the trial, the defendant learned that

the prosecutor had failed to disclose the victim's previous guilty

pleas to assault and weapon possession charges. The Court held

that the prosecutor's failure to disclose material exculpatory

evidence violated due process.

United States v. BagleyUnited States v. Bagley473 U.S. 667 (1985)473 U.S. 667 (1985)

Further defined "material" evidence as information that, if disclosed to the defense attorney, would have a "reasonable probability of providing a different result in trial or sentencing.” This case also clarified that impeachment evidence must be disclosed to the defense.

United States v. BagleyUnited States v. Bagley473 U.S. 667 (1985)473 U.S. 667 (1985)

Here, the government failed to disclose contracts with confidential informants who testified against the defendant in his trial on weapons and narcotics charges, which his attorney could have used to impeach their testimony. The Court found that this type of information was material since it would cast doubt on the motives of the witnesses.

Kyles v. WhitleyKyles v. Whitley 514 US 419 (1995)514 US 419 (1995)

Delores Dye was killed during a carjacking. Delores Dye was killed during a carjacking. Eyewitnesses gave police contradictory Eyewitnesses gave police contradictory descriptions of the attacker. Police made a list of descriptions of the attacker. Police made a list of cars at the crime scene. A man called Beanie cars at the crime scene. A man called Beanie claimed to have bought Dye’s stolen car from claimed to have bought Dye’s stolen car from Curtis Kyles (defendant). Beanie used an alias Curtis Kyles (defendant). Beanie used an alias and gave several inconsistent statements and gave several inconsistent statements implicating Kyles. Police found evidence of the implicating Kyles. Police found evidence of the murder in Kyles’s apartment and trash. Kyles’s murder in Kyles’s apartment and trash. Kyles’s fingerprint was found on a slip of paper in Dye’s fingerprint was found on a slip of paper in Dye’s car. Three of the five witnesses identified Kyles car. Three of the five witnesses identified Kyles photo. Police did not investigate Beanie. photo. Police did not investigate Beanie.


Kyles was charged with first-degree murder. Prior to trial, Kyles was charged with first-degree murder. Prior to trial, Kyles’s attorney requested any exculpatory or Kyles’s attorney requested any exculpatory or impeachment evidence. The prosecution claimed no impeachment evidence. The prosecution claimed no such evidence existed. At trial, Kyles claimed Beanie was such evidence existed. At trial, Kyles claimed Beanie was trying to frame him. Beanie did not testify. The trial trying to frame him. Beanie did not testify. The trial resulted in a mistrial. At the second trial, Kyles’ resulted in a mistrial. At the second trial, Kyles’ presented evidence of his innocence and Beanie’s guilt. presented evidence of his innocence and Beanie’s guilt. With Beanie in the court, the witnesses still identified With Beanie in the court, the witnesses still identified Kyles. Kyles was found guilty and sentenced to death. Kyles. Kyles was found guilty and sentenced to death. After appeal, Kyles learned that the prosecution withheld After appeal, Kyles learned that the prosecution withheld favorable evidence. Unable to get relief at the state favorable evidence. Unable to get relief at the state level, Kyles filed a petition for habeas corpus. The district level, Kyles filed a petition for habeas corpus. The district court denied, and the court of appeals affirmed. The court denied, and the court of appeals affirmed. The United States Supreme Court granted certiorari and United States Supreme Court granted certiorari and reversed and ordered a new trial, holding that the net reversed and ordered a new trial, holding that the net effect of the evidence withheld by the State in this case effect of the evidence withheld by the State in this case raised a reasonable probability that its disclosure would raised a reasonable probability that its disclosure would have produced a different result.have produced a different result.


This case imposes upon the prosecutor an affirmative "duty to learn of any favorable evidence known to the others acting on the government's behalf, including the police," and a resulting duty to disclose that evidence to the defense. The Court stated that even if a prosecutor isn't aware of the exculpatory evidence, "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it."

Federal Law Enforcement's Response to the Disclosure Rules

The bottom line: these Supreme Court decisions create a rule that requires prosecutors to learn of and disclose to the defense information that could be used to discredit law enforcement witnesses in a case. Prosecutors are essentially held responsible for knowing what the police know. The reality is that prosecutors must rely on law enforcement agencies to inform them of a hidden witness credibility problem including, for example, evidence of an officer's prior untruthfulness in official matters.

Responding to this requirement, Attorney General Janet Reno in 1996 established the so called Giglio policy, which required federal law enforcement agencies to inform federal prosecutors about potential impeachment information.

This policy places a burden both on the law enforcement agency and individual officers to ensure that federal prosecutors are informed about impeachment information. Mere allegations of this type of evidence need not be reported to the prosecutor unless the allegation is determined to be "very credible."

However, under this policy, even allegations against the officer that were not sustained, are not credible, or resulted in exoneration may be subject to disclosure if: (1) required by a court; (2) the allegation was made by a federal prosecutor or judge, or received publicity; (3) the agency and the prosecutor agree that disclosure is appropriate under the circumstances; or (4) the agency deems such disclosure is appropriate.

Implications for State and Local Police Departments

Many state and local agencies have similarly begun to disclose to prosecutors any conclusive information regarding untruthfulness, bias, and crimes committed by an officer who is to be a material witness in a criminal prosecution. Once the prosecutor is aware of such information, he or she can decide if the information should be disclosed to the defense attorney.

If the misconduct involves untruthfulness, it is likely to undermine the officer's ability to testify effectively. Agencies have responded to this problem in different ways. Some have adopted strict truthfulness policies and terminate officers who violate them. Other agencies have simply placed officers with impeachment problems in administrative assignments where there is no likelihood of becoming a witness in a criminal case, essentially creating so-called “liars squads.”

Defense attorneys are using information about untruthful officers to create databases to be used by other defense attorneys. For example, in San Diego, a defense attorney faced with a police witness in a case need only consult a database established by San Diego County Public Defender's Office containing information about local police misconduct and bias. If there is information about that officer being untruthful or in some way biased as a witness, the attorney will attempt to use that information to impeach that officer.

As this trend grows, agencies will be required to deal more forcefully with officers who lie. Departments may choose to adopt strict policies regarding truthfulness and rigorously adhere to those policies. Without taking such steps, agencies set themselves up to employ a portion of their commissioned workforce as administrative employees, unable to investigate crimes and testify regarding their investigations.

Georgia Case Where Georgia Case Where Brady-Giglio Issues Brady-Giglio Issues

are Raisedare Raised

Young v. The StateYoung v. The State__GA __, 1/9/2012__GA __, 1/9/2012

Appellant Kareem K. Young was Appellant Kareem K. Young was convicted of felony murder and convicted of felony murder and other offenses in connection other offenses in connection with the death of Arkeem Lavan with the death of Arkeem Lavan Young. He appeals, asserting, Young. He appeals, asserting, inter alia, the prosecution inter alia, the prosecution withheld exculpatory evidence withheld exculpatory evidence in violation of in violation of Brady v. Brady v. Maryland.Maryland.

YOUNG V. THE STATE __GA__, 1/9/2012YOUNG V. THE STATE __GA__, 1/9/2012

Appellant told police his name was Appellant told police his name was “Hakeem” – and he spelled it. He said “Hakeem” – and he spelled it. He said he was standing with his cousin in the he was standing with his cousin in the driveway; that they turned to walk driveway; that they turned to walk toward the house; that a shot rang toward the house; that a shot rang out as a black truck rode past the out as a black truck rode past the house; and that he ran and hid house; and that he ran and hid behind a garbage can. Officer behind a garbage can. Officer Nollinger did not see a truck in the Nollinger did not see a truck in the neighborhood. Appellant’s next door neighborhood. Appellant’s next door neighbor heard the shot, but he did neighbor heard the shot, but he did not hear the sound of a passing truck.not hear the sound of a passing truck.


Police searched the scene and found Police searched the scene and found a shell casing near the victim. The a shell casing near the victim. The location of the shell casing, along location of the shell casing, along with blood splatter evidence, with blood splatter evidence, demonstrated that the shot had not demonstrated that the shot had not been fired from the street. That been fired from the street. That finding was consistent with evidence finding was consistent with evidence showing that appellant had gun showing that appellant had gun powder residue on his hands.powder residue on his hands.


Initially, police were unable to find a Initially, police were unable to find a weapon at the house. Two days later, weapon at the house. Two days later, however, they recovered a handgun however, they recovered a handgun from under the house. The gun was from under the house. The gun was stolen. A ballistics test demonstrated stolen. A ballistics test demonstrated that it was used to kill Arkeem; it also that it was used to kill Arkeem; it also showed that it was used to kill an showed that it was used to kill an armed robbery victim at a armed robbery victim at a convenience store seven months convenience store seven months earlier. Appellant was a suspect in earlier. Appellant was a suspect in the convenience store shooting.the convenience store shooting.


He told police who investigated that He told police who investigated that shooting that he was at the shooting that he was at the convenience store and he was convenience store and he was carrying a shotgun, but that he did carrying a shotgun, but that he did not shoot the victim. The evidence not shoot the victim. The evidence was sufficient to enable any rational was sufficient to enable any rational trier of fact to find appellant guilty trier of fact to find appellant guilty beyond a reasonable doubt of the beyond a reasonable doubt of the crimes for which he was convicted.crimes for which he was convicted.


Appellant contends the State violated Appellant contends the State violated BradyBrady because it failed to disclose a 19- because it failed to disclose a 19-page management report detailing the page management report detailing the findings of a private consulting company findings of a private consulting company hired by the Mayor of Garden City to hired by the Mayor of Garden City to investigate the operations of the Garden investigate the operations of the Garden City Police Department. In this regard, City Police Department. In this regard, appellant claims the report shows that the appellant claims the report shows that the lead investigator, Steve Stratman, who lead investigator, Steve Stratman, who found the murder weapon and testified at found the murder weapon and testified at trial, had a reputation for falsifying reports trial, had a reputation for falsifying reports and lying under oath. Continuing the and lying under oath. Continuing the argument, appellant posits that the report argument, appellant posits that the report could have been used to impeach could have been used to impeach Stratman about his recovery of the murder Stratman about his recovery of the murder weapon.weapon.


To prevail on a Brady claim, appellant must To prevail on a Brady claim, appellant must demonstrate that the prosecution willfully or demonstrate that the prosecution willfully or inadvertently suppressed evidence favorable to inadvertently suppressed evidence favorable to the accused, either because it is exculpatory or the accused, either because it is exculpatory or impeaching. impeaching. Brady v. MarylandBrady v. Maryland.. However, “the However, “the Constitution is not violated every time the Constitution is not violated every time the government fails or chooses not to disclose government fails or chooses not to disclose evidence that might prove helpful to the evidence that might prove helpful to the defense.” defense.” Kyles…Kyles… Brady Brady comes into play only comes into play only when the suppressed evidence is material, i.e., when the suppressed evidence is material, i.e., “only if there is a reasonable probability that, “only if there is a reasonable probability that, had the evidence been disclosed to the defense, had the evidence been disclosed to the defense, the result of the proceeding would have been the result of the proceeding would have been different. A ‘reasonable probability’ is a different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in probability sufficient to undermine confidence in the outcome.”the outcome.”


The management report at issue here is The management report at issue here is not material – it is neither exculpatory nor not material – it is neither exculpatory nor impeaching. The report never identifies impeaching. The report never identifies any cases by name, and never names any any cases by name, and never names any of the interviewees. It contains no specific of the interviewees. It contains no specific information from identifiable sources information from identifiable sources which appellant could present to a jury. which appellant could present to a jury. Simply put, the report does not raise a Simply put, the report does not raise a reasonable probability that, had it been reasonable probability that, had it been disclosed, the outcome of the trial would disclosed, the outcome of the trial would have been different. Because the report have been different. Because the report was hearsay and inadmissible, and was hearsay and inadmissible, and appellant has not shown how its disclosure appellant has not shown how its disclosure would have led to admissible evidence, it would have led to admissible evidence, it did not constitute did not constitute BradyBrady material. material.


Appellant asserts the State also violated Appellant asserts the State also violated Brady because it refused to identify a Brady because it refused to identify a witness who placed appellant at the scene witness who placed appellant at the scene of the convenience store shooting. This of the convenience store shooting. This assertion is without merit. Appellant was assertion is without merit. Appellant was aware aware pretrialpretrial that the State had taken that the State had taken statements from the witness, a six-year-statements from the witness, a six-year-old child. The trial court reviewed the old child. The trial court reviewed the witness’ statement witness’ statement in camerain camera, and ruled , and ruled that it was not at all exculpatory. We have that it was not at all exculpatory. We have also reviewed the witness’ statement also reviewed the witness’ statement in in cameracamera and find no error in the trial and find no error in the trial court’s ruling.court’s ruling.


Officer Nollinger, who was the first to arrive at Officer Nollinger, who was the first to arrive at the scene, subsequently joined a police force the scene, subsequently joined a police force in South Carolina where he was indicted for in South Carolina where he was indicted for official misconduct in office and his South official misconduct in office and his South Carolina POST certification was revoked. At Carolina POST certification was revoked. At the time of trial, Nollinger was facing a the time of trial, Nollinger was facing a disciplinary hearing in Georgia to determine if disciplinary hearing in Georgia to determine if his Georgia POST certification should have his Georgia POST certification should have been revoked also. Appellant contends that, been revoked also. Appellant contends that, inasmuch as Nollinger may have felt inasmuch as Nollinger may have felt pressured to testify favorably for the State in pressured to testify favorably for the State in order to gain concessions from the South order to gain concessions from the South Carolina prosecutor or keep his Georgia POST Carolina prosecutor or keep his Georgia POST certification, the trial court should have certification, the trial court should have permitted him to cross-examine Nollinger permitted him to cross-examine Nollinger about any possible bias. We disagree.about any possible bias. We disagree.


The Confrontation Clause guarantees only The Confrontation Clause guarantees only an an opportunity opportunity for effective cross-for effective cross-examination, not cross-examination that is examination, not cross-examination that is effective in whatever way, and to whatever effective in whatever way, and to whatever extent, the defense might wish. extent, the defense might wish. Accordingly, trial courts retain wide latitude Accordingly, trial courts retain wide latitude insofar as the Confrontation Clause is insofar as the Confrontation Clause is concerned to impose reasonable limits on concerned to impose reasonable limits on cross-examination based on concerns cross-examination based on concerns about, among other things, harassment, about, among other things, harassment, prejudice, confusion of the issues, the prejudice, confusion of the issues, the witness’ safety, or interrogation that is witness’ safety, or interrogation that is repetitive or only marginally relevantrepetitive or only marginally relevant… …

(Citations and punctuation omitted.) Watkins v. State, 276 (Citations and punctuation omitted.) Watkins v. State, 276 Ga. 578, 582 (581 SE2d 23) (2003).Ga. 578, 582 (581 SE2d 23) (2003).


In denying defendant’s motion to explore In denying defendant’s motion to explore Nollinger’s bias, the trial court informed Nollinger’s bias, the trial court informed appellant it would revisit the issue if appellant it would revisit the issue if appellant were to present evidence other appellant were to present evidence other than the pending criminal charge against than the pending criminal charge against Nollinger. However, appellant failed to Nollinger. However, appellant failed to demonstrate that Nollinger’s testimony demonstrate that Nollinger’s testimony was influenced in any way by the charge was influenced in any way by the charge pending against him in South Carolina. In pending against him in South Carolina. In fact, the South Carolina prosecutor fact, the South Carolina prosecutor testified that Nollinger did not seek any testified that Nollinger did not seek any concessions for his cooperation and that concessions for his cooperation and that she had no interest whatsoever in she had no interest whatsoever in Nollinger’s trial testimony.Nollinger’s trial testimony.


Moreover, Nollinger’s testimony was Moreover, Nollinger’s testimony was consistent with his police report, the consistent with his police report, the dashboard videotape he made at the dashboard videotape he made at the scene, and the testimony of other officers. scene, and the testimony of other officers. Thus, it would be highly speculative to Thus, it would be highly speculative to suggest a connection between Nollinger’s suggest a connection between Nollinger’s testimony and the troubles stemming from testimony and the troubles stemming from the South Carolina prosecution, and it the South Carolina prosecution, and it cannot be said that the trial court abused cannot be said that the trial court abused its discretion in limiting appellant’s cross-its discretion in limiting appellant’s cross-examination of Nollinger.examination of Nollinger.


The trial court did not abuse its discretion The trial court did not abuse its discretion in denying a jury view. in denying a jury view. Sutton v. State, 237 Ga. Sutton v. State, 237 Ga.

418, 419 (3) (228 SE2d 815) (1976).418, 419 (3) (228 SE2d 815) (1976). The evidence The evidence introduced at trial, including video, introduced at trial, including video, diagrams and photographs, enabled the diagrams and photographs, enabled the jury to comprehend fully the scene of the jury to comprehend fully the scene of the crime and the issues pertaining thereto. A crime and the issues pertaining thereto. A view would have provided “fertile ground view would have provided “fertile ground for irregularity” and no real benefit. for irregularity” and no real benefit. See See Esposito v. State, 273 Ga. 183, 187 (4) (538 SE2d 55) (2000).Esposito v. State, 273 Ga. 183, 187 (4) (538 SE2d 55) (2000).

Judgment affirmed. All the Justices concur.Judgment affirmed. All the Justices concur.

POST CouncilPOST Council

Case StatisticsCase Statistics

Georgia Peace Officer Georgia Peace Officer Standards & Training Standards & Training

(POST) Council(POST) Council

P.O.S.T. MissionP.O.S.T. Mission

It is the mission of the Georgia It is the mission of the Georgia Peace Officer Standards and Peace Officer Standards and Training Council (P.O.S.T.) to Training Council (P.O.S.T.) to provide the citizens of Georgia provide the citizens of Georgia with qualified, professionally with qualified, professionally trained, ethical and competent trained, ethical and competent peace officers and criminal justice peace officers and criminal justice professionals.professionals.

The Georgia P.O.S.T. Council The Georgia P.O.S.T. Council administers the regulatory administers the regulatory process, sets the standards for process, sets the standards for training and certification, and training and certification, and provides essential technical provides essential technical assistance to the law enforcement assistance to the law enforcement community.community.

The Georgia P.O.S.T. Council The Georgia P.O.S.T. Council provides the highest degree of provides the highest degree of excellence in public safety service excellence in public safety service and eliminates unqualified and eliminates unqualified individuals from the law individuals from the law enforcement profession.enforcement profession.

Powers of the CouncilPowers of the CouncilO.C.G.A. O.C.G.A. § 35-8-7§ 35-8-7

Certify peace officersCertify peace officers Develop training curriculaDevelop training curricula Certify schools and their directorsCertify schools and their directors Establish qualifications for instructorsEstablish qualifications for instructors To refuse to grant or discipline peace To refuse to grant or discipline peace

officersofficers Develop, adopt and issue advanced or Develop, adopt and issue advanced or

professional peace officer certificatesprofessional peace officer certificates Provide and administer the certification of Provide and administer the certification of

speed detection operatorsspeed detection operators

The AgencyThe Agency

Executive Director Executive Director

Certification and Training Certification and Training

Standards DivisionStandards Division Operations DivisionOperations Division

Investigations DivisionInvestigations Division

Investigations DivisionInvestigations Division

Investigate allegations of misconduct by a Investigate allegations of misconduct by a peace officer that are in violation of O.C.G.A. peace officer that are in violation of O.C.G.A. § § 35-8-7.135-8-7.1

Conduct investigations on individual applicants Conduct investigations on individual applicants who are seeking peace officer certificationwho are seeking peace officer certification

Conduct agency audits to insure compliance Conduct agency audits to insure compliance with state lawwith state law

Sanctions Council is Empowered to AdministerSanctions Council is Empowered to AdministerO.C.G.A. 35-8-7.1O.C.G.A. 35-8-7.1

1.1. Refuse to grant certificate to applicantRefuse to grant certificate to applicant2.2. Issue public reprimandIssue public reprimand3.3. Suspend certificate for a definite periodSuspend certificate for a definite period4.4. Limit or restrict certificateLimit or restrict certificate5.5. Revoke certificateRevoke certificate6.6. Condition the penalty, or withhold Condition the penalty, or withhold

disposition until officer completes care, disposition until officer completes care, counseling or treatment directed by the counseling or treatment directed by the CouncilCouncil

7.7. Place officer on probation with reasonable Place officer on probation with reasonable termsterms

Sanctioning Process

Allegation of misconduct is

reported to P.O.S.T.

Div. Director determines

applicability to OCGA 35-8-

7.1

Case is assigned to investigator

Case investigated

and presented to PCC

PCC recommendation

presented to Council

Council Determines

Sanction

Officer is notified via

certified mail of the Council

sanction and his or her right to

contest the action through the “Hearings Process”

Hearings ProcessOfficer notified via

certified mail of sanction imposed

by Council

Officer challenges sanction /

request hearing

Case forwarded to P.O.S.T. Hearings Division

File copied and

forwarded to Attorney General’s

Office

Pre-hearing conference A.G./ Respondent/ and

P.O.S.T.

Officer may appeal A.L.J. decision or agency decision

in Superior Court

Settlement reached/

approved by Chairman

Proceed to full Hearing

Office of State Administrative Hearings

conducts Hearing

A.L.J. decision is

same as Council/

Final Action

A.L.J. decision is different than Council/ Final

Agency Review

Overall StatisticsOverall StatisticsAug. 1, 2010 to Aug. 1, 2015Aug. 1, 2010 to Aug. 1, 2015

Total Cases:Total Cases: 6,525 (final 6,525 (final action)action)

RevokeRevoke 2,4682,468

Deny CertDeny Cert 477 477

SurrenderSurrender 175 175

TotalTotal 3,120 (48%)3,120 (48%)

Overall StatisticsOverall StatisticsAug. 1, 2010 to Aug. 1, 2015Aug. 1, 2010 to Aug. 1, 2015

No ActionNo Action 864 864

Public ReprimandPublic Reprimand 942 942

ProbationProbation 1,4251,425

Suspend CertSuspend Cert 107 107(3-12 months)(3-12 months)

Brady-Giglio IssuesBrady-Giglio Issuesby POST Violation by POST Violation (Final Disposition)(Final Disposition)

Falsified POST App.Falsified POST App.Total casesTotal cases 1414Deny/RevokeDeny/Revoke 77 (50%)(50%)

Falsified Degree/Diploma/GEDFalsified Degree/Diploma/GEDTotal casesTotal cases 11Deny/RevokeDeny/Revoke 11 (100%)(100%)

Bad Moral Character or UntrustworthinessBad Moral Character or UntrustworthinessTotal casesTotal cases 11Deny/RevokeDeny/Revoke 11 (100%)(100%)

Brady-Giglio IssuesBrady-Giglio Issuesby POST Violationby POST Violation

Cheating in the AcademyCheating in the AcademyTotal casesTotal cases 1111Deny/RevokeDeny/Revoke 1010 (91%)(91%)

Falsified Training RecordsFalsified Training RecordsTotal casesTotal cases 1111Deny/RevokeDeny/Revoke 55 (45%)(45%)

False Information on ApplicationFalse Information on ApplicationTotal casesTotal cases 1616Deny/RevokeDeny/Revoke 1414 (88%)(88%)


False Accusations Against Fellow EmployeesFalse Accusations Against Fellow EmployeesTotal casesTotal cases 1919Deny/RevokeDeny/Revoke 6 6 (32%)(32%)

Abuse of Office/AuthorityAbuse of Office/AuthorityTotal casesTotal cases 4242Deny/RevokeDeny/Revoke 2323 (55%)(55%)

Violation of OathViolation of OathTotal casesTotal cases 136136Deny/RevokeDeny/Revoke 113113 (83%)(83%)


Falsified Time RecordsFalsified Time RecordsTotal casesTotal cases 3232Deny/RevokeDeny/Revoke 2626 (81%)(81%)

Deceptive in an Internal InvestigationDeceptive in an Internal InvestigationTotal casesTotal cases 189189Deny/RevokeDeny/Revoke 140140 (74%)(74%)

Falsified Departmental RecordsFalsified Departmental RecordsTotal casesTotal cases 141141Deny/RevokeDeny/Revoke 105105 (74%)(74%)


Untrue or Deceptive StatementsUntrue or Deceptive StatementsTotal casesTotal cases 306306Deny/RevokeDeny/Revoke 244244 (80%)(80%)

Retaining or Destroying Legal DocumentsRetaining or Destroying Legal DocumentsTotal casesTotal cases 33Deny/RevokeDeny/Revoke 11 (33%)(33%)

Falsifying Legal DocumentsFalsifying Legal DocumentsTotal casesTotal cases 1515Deny/RevokeDeny/Revoke 1111 (73%)(73%)


Association or Activity w/ a Known FelonAssociation or Activity w/ a Known FelonTotal casesTotal cases 2525Deny/RevokeDeny/Revoke 1919 (76%)(76%)

Revealing Undercover Officer or InformationRevealing Undercover Officer or InformationTotal casesTotal cases 33Deny/RevokeDeny/Revoke 33 (100%)(100%)

Misuse/Mishandling EvidenceMisuse/Mishandling EvidenceTotal casesTotal cases 3737Deny/RevokeDeny/Revoke 2222 (59%)(59%)


GCIC ViolationGCIC ViolationTotal casesTotal cases 2222Deny/RevokeDeny/Revoke 1010 (45%)(45%)

Disclosing or Releasing Agency InformationDisclosing or Releasing Agency InformationTotal casesTotal cases 2323Deny/RevokeDeny/Revoke 1515 (65%)(65%)

Disclosed Internal Affairs InformationDisclosed Internal Affairs InformationTotal casesTotal cases 2323Deny/RevokeDeny/Revoke 1515 (65%)(65%)


Social Media MisconductSocial Media MisconductTotal casesTotal cases 3434Deny/RevokeDeny/Revoke 1414 (41%)(41%)

Falsified Medical Reports or RecordsFalsified Medical Reports or RecordsTotal casesTotal cases 22Deny/RevokeDeny/Revoke 22 (100%)(100%)

Tampering with EvidenceTampering with EvidenceTotal casesTotal cases 1313Deny/RevokeDeny/Revoke 88 (62%)(62%)


Obstruction or Hindering of Law Enforcement OfficersObstruction or Hindering of Law Enforcement OfficersTotal casesTotal cases 6060Deny/RevokeDeny/Revoke 3939 (65%)(65%)

False Report of a CrimeFalse Report of a CrimeTotal casesTotal cases 55Deny/RevokeDeny/Revoke 55 (100%)(100%)

Failure to Comply with Court Ordered ProbationFailure to Comply with Court Ordered ProbationTotal casesTotal cases 55Deny/RevokeDeny/Revoke 44 (80%)(80%)


Theft by TakingTheft by TakingTotal casesTotal cases 8787Deny/RevokeDeny/Revoke 6868 (78%)(78%)

Theft by ConversionTheft by ConversionTotal casesTotal cases 1515Deny/RevokeDeny/Revoke 1313 (87%)(87%)

ForgeryForgeryTotal casesTotal cases 1212Deny/RevokeDeny/Revoke 1010 (83%)(83%)


Financial Transaction Card Fraud or TheftFinancial Transaction Card Fraud or TheftTotal casesTotal cases 1010Deny/RevokeDeny/Revoke 66 (60%)(60%)

BurglaryBurglaryTotal casesTotal cases 1111Deny/RevokeDeny/Revoke 99 (82%)(82%)

Identity TheftIdentity TheftTotal casesTotal cases 33Deny/RevokeDeny/Revoke 33 (100%)(100%)


VGCSAVGCSATotal casesTotal cases 113113Deny/RevokeDeny/Revoke 5555 (49%)(49%)

PerjuryPerjuryTotal casesTotal cases 99Deny/RevokeDeny/Revoke 44 (44%)(44%)

False SwearingFalse SwearingTotal casesTotal cases 33Deny/RevokeDeny/Revoke 22 (66%)(66%)


Impersonating a Public Officer or EmployeeImpersonating a Public Officer or Employee

Total casesTotal cases 2323

Deny/RevokeDeny/Revoke 2222 (96%)(96%)

False Statements or WritingsFalse Statements or Writings

Total casesTotal cases 2727

Deny/RevokeDeny/Revoke 1717 (63%)(63%)

The End!The End!

Questions or Comments?Questions or Comments?