Does an Officer Who Receives a Giglio Letter Have a Right to a Name Clearing Hearing?

In my most recent post, I noted that a law enforcement officer who is fired will sometimes have a right to a “name clearing hearing” at which the officer may supply evidence contradicting negative information about the officer’s honesty or integrity that the agency released in connection with the officer’s termination. I ended that post by asking whether an officer who is fired in connection with a Giglio letter is entitled to such a hearing. Under most circumstances, the answer to that question is no. Keep reading for more details.

What’s a Giglio letter? Let’s start by clarifying some terminology. In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court considered a case where one prosecutor failed to disclose to the defense that another prosecutor had made a promise of leniency to a key witness in exchange for the witness’s testimony. The Court concluded that “nondisclosure of [material] evidence affecting credibility” violates due process, and therefore reversed the defendant’s conviction.

The rationale of Giglio applies to all witnesses, including law enforcement officers. When a prosecutor is aware of material evidence that calls an officer’s credibility into doubt, the prosecutor must disclose that information to the defense. Some prosecutors’ offices maintain a “Giglio list,” essentially a roster of officers for whom material impeachment evidence is known. To promote interagency cooperation, some prosecutors write “Giglio letters” to the officer’s agency head when a Giglio issue arises with regard to an officer. Such a letter may advise the agency head that the officer has a “Giglio issue” or is “Giglio impaired.” Under current law, some letters of this kind must also be sent the officer’s certifying commission – either the North Carolina Criminal Justice Education and Training Standards Commission (for state and municipal officers) or the North Carolina Sheriffs’ Education and Training Standards Commission (for deputies). See G.S. 17C-16, 17E-16.

The terms “Giglio letter” and “Giglio notification” are used very often in the law enforcement community, but there is no agreed-upon definition of these terms. If a judge tells an officer “I don’t believe a word you say and I don’t want to see you in my courtroom again,” is that a Giglio notification even though it is a judge rather than a prosecutor who has questioned the officer’s credibility? What if a prosecutor concludes that an officer used excessive force in making an arrest, and notifies the agency head that the prosecutor will disclose that in any future case involving the officer in which the manner of arrest is at issue? Is that a Giglio notification even though the prosecutor plans to continue to call the officer to testify, and in many cases will not disclose anything to the defense? If an agency conducts an internal investigation and concludes that an officer called in sick and then went to see a baseball game, suspends the officer for a week as punishment, and notifies the district attorney about all that, is that a Giglio notification? People in the field disagree about the answer to those questions. For simplicity, this post will focus on what I think is the quintessential Giglio notification: when a prosecutor writes a letter to an agency head saying in essence, “based on facts A, B, and C, I conclude that Officer Smith lacks credibility to the extent that I will not call Officer Smith as a witness in any future case.” Sometimes letters of this kind are called “death letters” because the potential impact to an officer’s career.

Name clearing hearings: a very short review. Recall from the prior post that even an at will public employee is entitled to a name clearing hearing when the employer:

  • Makes statements available to the public and/or future employers
  • That stigmatize an employee’s good name and reputation
  • In connection with the employee’s termination or demotion
  • That the employee contends were false

See generally Sciolino v. City of Newport News, Va., 480 F.3d 642 (4th Cir. 2007). And remember that a recent Fourth Circuit case suggests that even putting stigmatizing information in an officer’s personnel file or reporting it to the pertinent Standards Commission may meet these criteria. See Cannon v. Village of Bald Head Island, North Carolina, 891 F.3d 489 (4th Cir. 2018).

So, is an officer who gets a Giglio letter entitled to a name clearing hearing? A statement that an officer is dishonest or otherwise lacks credibility may certainly be stigmatizing. Nonetheless, as I said at the outset, I don’t think current law generally entitles an officer to a name clearing hearing for reasons that follow. Current law does provide another avenue to the officer, which I’ll touch on at the end of this post.

No right to a name clearing hearing from the district attorney.

The officer isn’t entitled to a name clearing hearing from the district attorney. A name clearing hearing is only available when a stigmatizing statement is made in connection with an officer’s termination or demotion. A district attorney has no authority to fire or demote a law enforcement officer. Of course, a law enforcement agency may decide to fire an officer who receives a Giglio notification, but that’s up to the agency. The agency is free to disagree with the district attorney’s assessment of the officer and to keep the officer employed – perhaps in an administrative role or in a position that is unlikely to require the officer to testify. See Lackey v. Lewis County, 2009 WL 3294848 (W.D. Wash. October 9, 2009) (unpublished) (rejecting an officer’s due process claims concerning a prosecutor’s issuance of a Brady/Giglio letter, in part because there was no indication that the prosecutor was “involved in the actual termination process,” a process that was handled entirely by the sheriff who employed the officer at the time the letter was issued).

In any event, a prosecutor’s decision not to offer a name clearing hearing in connection with a Giglio letter is almost certainly immune from legal challenge. It may be protected by absolute immunity, on the theory that Giglio­-related decisions are decisions about which witnesses to call, which is an essentially prosecutorial function. See LaCoe v. City of Sisseton, __ F. Supp. 3d __, 2022 WL 17485843 (D.S.D. December 7, 2022) (finding that a prosecutor was absolutely immune from suit as to his decision to place the officer on a Brady/Giglio list as “the weight of precedent shows that creating a Brady/Giglio impeachment disclosure list is a prosecutorial function,” not an administrative one); Heidt v. City of McMinnville, 2016 WL 7007501 (D. Or. November 29, 2016) (unpublished) (similar). If not protected by absolute immunity, the absence of any precedent affirmatively imposing any obligation to conduct a name clearing hearing would likely trigger qualified immunity. See Lackey, supra (ruling that a prosecutor’s issuance of a Giglio letter and transmittal of the letter to a second prosecutor was protected by qualified immunity as there was no clearly established law prohibiting either action; the plaintiff “failed to identify any law that recognizes a police officer’s right to a name-clearing hearing after a Brady[/Giglio] determination has been made, or any law prohibiting a prosecutor from transmitting a Brady[/Giglio] determination to another jurisdiction”).

All of this means district attorneys have considerable and largely unreviewable authority in connection with Giglio determinations. In recognition of the importance of these determinations, many district attorneys, in their discretion, have adopted policies or have chosen to follow informal procedures that allow officers an opportunity to be heard before the prosecutor issues a Giglio notification.

Often, no right to a name clearing hearing from the agency.

If an agency chooses to fire an officer who receives a Giglio notification, and if the agency says no more than that it is terminating the officer because the district attorney refuses to call the officer as a witness, the officer likely is not entitled to a name clearing hearing from the agency because (1) that information in itself is not stigmatizing, and (2) the officer can’t contend plausibly that the information is false. But the analysis could be otherwise if the agency takes a different path. If the agency effectively adopts the district attorney’s judgment, fires the officer because the officer has been dishonest and lacks credibility, and memorializes that decision in a way that members of the public or future employers may access, a name clearing hearing may be required. Cf. Cannon, supra.

To be clear, I am not suggesting that an agency should try to avoid offering a name clearing hearing. A name clearing hearing is not especially burdensome, and if there is any doubt about whether an officer is entitled to a hearing, it is probably better to err on the side of having one.

Opportunity for a hearing via the Standards Commissions. As mentioned above, current law requires that the appropriate Standards Commission be informed when an officer is notified in writing by a judge, prosecutor, or agency head that the officer “may not be called to testify at trial based on bias, interest, or lack of credibility.” G.S. 17C-16, 17E-16. I read this provision as being focused on “death letters,” not the lesser Giglio notifications that merely advise an officer or an agency that the district attorney will be required to disclose certain impeaching information when calling the officer to testify.

When the staff of the relevant Commission receives such a report, I believe that their practice is to investigate the circumstances behind the notification. If the circumstances involve allegations of misconduct that fall within the purview of the Commission, staff would begin administrative proceedings against the officer, with the officer’s certification potentially being at stake. These administrative proceedings would ultimately be litigated in the Office of Administrative Hearings, with a right of appeal to superior court. The officer would be entitled to participate, and if the officer successfully demonstrated a lack of misconduct, the officer would end up with a judgment that the officer could hold out as evidence that a neutral party found no fault with his or her conduct. This process is not an exact substitute for a traditional name clearing hearing, since it is not conducted by the employer, may involve significant delay, and ultimately takes place in Raleigh rather than in the community where the officer works. Still, it provides an avenue for some officers to contest the facts and circumstances underlying a Giglio notification that the officer sees as unjust.

Not everyone thinks that this process is well-designed and effective, and a bill was introduced this session that would repeal the relevant statutes. See H704. The bill has passed the House and remains pending in the Senate. The costs and benefits of the bill and the system it would repeal are beyond the scope of this post. This post also isn’t intended as a comment on whether the current rules around Giglio notifications and name clearing hearings are fair. It would be hard to generalize about that anyway, since the way Giglio matters are handled varies so much from jurisdiction to jurisdiction.

Conclusion. I hope that this post is helpful as prosecutors, officers, and agencies navigate this uncomfortable terrain.