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This is an issue that comes up frequently for Oregon criminal defense attorneys.  You have information that involved police officers have past issues relating to their honesty, misuse of informants, violent activities, etc.  Nonetheless, the information is poorly substantiated or may be substantiated in ways you are uncomfortable setting forth in an affidavit in support of a motion to compel production.  Although U.S. v. Henthorn, 931 F2d 29 (1991), was decided in federal court, because it implicates Brady v. Maryland, it addresses protections guaranteed by the United States Constitution.  The defendant moved for an order requiring the prosecution “to produce the personnel files of law enforcement witnesses whom it intends to call at trial…” for evidence of perjurious conduct or other like dishonesty, en camera.  The government contended that the defendant must make an initial showing that the information would be “material” to his defense.  The trial court denied the defendant’s motion because of failure to make the materiality showing and ruling that the defendant has the obligation of identifying the specific wrongdoing before getting an en camera inspection.

The Henthorn court overturned the trial court and remanded the case, ordering an en camera examination of the involved agents.  Citing U.S. v. Cadet, 727 F2d 1453 (9th Cir. 1984), Henthorn held that the government must disclose information favorable to the defense which meets the appropriate standard of materiality…If the prosecution is uncertain about the materiality of information within its possession, it may submit the information to the trial court for an en camera inspection and evaluation.  The government has a duty to examine personnel files upon a defendant’s request for their production.  Absent such an examination, it cannot ordinarily determine whether it is obligated to turn over the files.

The court further held:  “The government is incorrect in its assertion that it is the defendant’s burden to make an initial show of materiality.  The obligation to examine the files arises by virtue of the making of the demand for their production.  However, following that examination, the files need not be furnished to the defendant or the court unless they contain information that is or may be material to the defendant’s case.  Here, the record shows that the government failed to examine [the requested files].  This constituted error.”  931 F2d 29.  The lesson for Oregon criminal defense attorneys when confronted with the prospect of helpful information in police files is to make the motion.  At a minimum, the motion will oblige the prosecution to examine the files.  Be as artful as possible in the formulation of your motion in making it both broad and particularly descriptive in terms of the kinds of information being sought.  In some instances, it may be necessary to assert the specific way in which the evidence sought would be material to try to keep the prosecution as honest and open-minded as could be hoped for during that examination.  Be sure to indicate in your request that in the event there is “any question whatsoever” as to the information’s materiality, the court should inspect en camera, citing the appropriate case.

For a state court case which is helpful (though not entirely on point), see State v. Johnson, 210 Or 733, rev. den. 342 P3d 654 (2007).

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