Recently I saw a news release from another jurisdiction talking about how that prosecution office had recently adopted a Brady/Giglio policy and was starting its implementation.

Brady vs. Maryland was a United States Supreme Court case in 1963. The Supreme Court determined that all “material” information must be disclosed to the defense by the prosecution.

In the decades since, many other cases have interpreted and expanded on the Brady rule, including Giglio v. United States in 1972. Each of these cases has expanded and clarified the Constitutional obligations of prosecutors and police are in providing evidence to the defense.

Giglio expanded on the Brady rule by stating that if a witness’s reliability “may be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within the Brady rule.” This case and others interpreting have made clear that the obligation of prosecutors is significant. Minnesota’s Rule of Criminal Procedure implemented what has been called an “open file” policy, requiring the prosecutor to share all information in their possession about a case.

Giglio took that obligation a step further and made clear that any information that may tend to cause doubt about the credibility of a witness must be disclosed to the defense. Information disclosed may or may not be admissible at trial, but the courts have directed that it be released so the defense can make informed decisions about the quality of the case and the credibility of the witnesses at trial.

Minnesota’s Supreme Court has also directed that plea bargains offered to witnesses must be disclosed to the defense. Statements made by witnesses and the complete criminal record of any witnesses must also be disclosed. This obligation has been expanded to include a witness who changed their name and had a criminal history under the previous name. Case law in Minnesota further requires the disclosure of police reports involving the victims in a case.

Recently in Minnesota a conviction was overturned because a prosecutor withheld evidence because she believed it was admissible only as rebuttal evidence. The prosecutor relied on the advice of a more experienced attorney in making this decision, but the conviction was still overturned finding that the defendant was deprived of the opportunity to have a fair trial by withholding the evidence until after the defense had presented its case.

In trying to meet these obligations, I adopted a Brady/Giglio in my first month in office in 2015. In the years since I have revisited and revised the policy as appropriate, distributing it to law enforcement, other prosecuting offices and publishing it on my office’s website so that everyone is aware of the obligations my office strives to meet.

Prosecutors have an obligation as ministers of justice to attempt to seek a fair and just result in every case. Our goal is to protect victims and public safety, but never just to win. To be fair, we must share the information we have and allow the defense to test its case in court.

Then Associate Justice of the Supreme Court of the United States Justice John Paul Stevens, in one of the Brady related cases, United States vs. Agurs laid out the obligation and the rule we follow: “Because we are dealing with an inevitably imprecise standard, and because the significance of an item can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.”

Only by treating the people charged fairly and providing them with the evidence to review can we maintain confidence in our convictions and protect the rights of the accused as well as the victims.

John L. Fossum is the Rice County Attorney. Reach him at or 507-332-6103.

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