Police officers in Salt Lake County soon will have to answer questions about their truthfulness, biases and disciplinary history before taking the witness stand.
Starting next Monday, the prosecutor’s office will begin issuing questionnaires to police officers who have been subpoenaed to testify, asking whether they have been caught lying or done something else that could jeopardize court cases.
The information may be given to defense attorneys in connection with specific cases.
Two police departments reached by The Salt Lake Tribune say they plan to comply with the questionnaires. But the Utah Fraternal Order of Police would prefer a statewide protocol, rather than a county-by-county approach, an official said.
The new protocol is a result of nearly two years of discussions between District Attorney Sim Gill’s office and police agencies across Salt Lake County, Gill said in a recent interview.
Gill did not cite any specific case that led his office to consider changing its policies. But he said it became apparent several years ago that there was little uniformity across the county — some police agencies or officers self-reported when someone was found to have lied or showed bias, but many didn’t.
Previously, if anyone asked prosecutors if an officer had credibility issues? “None of us could tell you that,” Gill said. “Because we weren’t asking.”
Now, prosecutors are asking questions like, “Have you ever been disciplined or admonished for conduct that involved acts of dishonesty or deception?” and “Are you aware of any allegations or findings by a court or prosecutor that reflect upon your truthfulness, bias or integrity, including lack of candor?”
Chief Deputy Attorney Blake Nakamura said officers will only be required to fill out an questionnaire once, unless something changes in their disciplinary file.
When a case comes up that involves an officer who answered “Yes” to any of the questions, prosecutors will alert a defense attorney, said Nakamura.
If the officer’s disciplinary history is relevant to the case, he said, prosecutors will disclose it to the defense. If it is unrelated, they might not turn it over at all. If it is somewhere in the middle, the attorneys might ask a judge to privately review the officer’s file and decide whether the defense should get access.
But Nakamura said there’s a misconception that if officers disclose their disciplinary history, they are on some sort of list and that those officers’ careers are over.
“That‘s simply not an accurate reflection of what impeachment evidence is,” he said. “... There have been several instances where that’s come up, where a certain act has a potential bias related to a particular case, and that officer is still working. That officer is still filing cases, we’re still screening them, we’re still prosecuting those cases.”
Officers are required to disclose only sustained findings, or allegations that their employers found were supported by sufficient proof — and which would appear in their department disciplinary records.
“Law enforcement is built on a foundation of integrity,” Gill said in a Wednesday news release. “The vast majority of law enforcement professionals are hardworking, honorable men and women committed to protecting the rights of everyone.”
He stressed that the protocol is designed to make the system fairer for everyone.
“The system’s integrity is preserved by a process that identifies and addresses a compromised officer,” Gill said in the statement. “Police departments should be fully staffed with qualified officers, but when a department employs an officer with a history of dishonesty or bias, a fair trial requires letting defendants know about that witness.”
Prosecutors say the questionnaire is a measure to meet their obligation to seek information that could benefit a defendant. This type of evidence is often referred to as “Brady/Giglio” material, in reference to two U.S. Supreme Court decisions — Brady v. Maryland in 1963 and Giglio v. United States in 1972 — that outline the duty that prosecutors have to turn over evidence that might help defendants prove their innocence.
“The irony, of course, is this is not something that came out yesterday,” Gill said of the court rulings. “It came out a long time ago. But it’s not something that has been internalized and maybe, in some instances, fully understood what that means.”
Brent Jex, president of the Utah Fraternal Order of Police, said Wednesday that his group is “very cautious” about the questionnaire. He said that while it’s understandable that the information is needed to protect the rights of the accused, he worries about due-process rights for officers who may have pending accusations or discipline.
Jex said the Utah FOP has not ruled out the possibility of filing a federal lawsuit challenging these sorts of official and unofficial policies that have been adopted by Utah prosecutors’ offices. But he said the organization would prefer that a statewide protocol be formed by the legislature or the Utah Prosecution Council.
“A lot of this depends on how the [police] agencies react,” Jex said. “… Maybe time will tell on what they do with it and how they interpret it. But we’d like to see a statewide resolution.”
Unified Police Lt. Brian Lohrke said his organization plans to comply with the new protocol, but referred any other comment to the district attorney’s office.
Sandy Police Chief Kevin Thacker said Wednesday that there are some “concerns” with the new policy — mostly unanswered questions his office has about what is considered Brady/Giglio material and what should be disclosed.
“I don’t think any of us are not going to comply,” Thacker said. “It’s still a matter of getting some of those questions answered on what to give.”
Gill’s office is not the first in Utah to quiz officers about their disciplinary history. The U.S. Department of Justice has been issuing such questionnaires to law enforcement for years, and Davis County Attorney Troy Rawlings in 2014 introduced something similar in his county.
Rawlings said Monday that he believes the policy is working, thanks to buy-in from the police chiefs in Davis County.
“It’s working well here,” Rawlings said, “because we spent the time to go and work with the police agencies and educate them on the law.”