Can a Washington prosecutor remove a law enforcement officer's name from the office's potential impeachment disclosure (Brady) list, and what circumstances justify removal?

Plain-English summary

Washington prosecutors maintain "Brady lists" (also called "potential impeachment disclosure" or PID lists) of law enforcement officers whose history of misconduct, dishonesty, or criminal convictions could be used by a defendant to challenge the officer's credibility as a witness. The list helps the prosecutor's office comply with the Brady v. Maryland duty to disclose evidence favorable to the defense, including impeachment evidence under Giglio v. United States.

In 2021, the Washington legislature passed Substitute H.B. 1088, codified at RCW 10.93.180. The statute requires each county prosecutor to adopt a written PID protocol, and the protocol must address "under what circumstances an officer's information or name may be removed from any list of potential impeachment disclosures." The Washington Association of Prosecuting Attorneys (WAPA) issued a model policy in 2022 that addressed many implementation questions but left the removal question only partly answered.

Island County Prosecuting Attorney Gregory Banks asked the AG: under what circumstances may a prosecutor remove an officer's name from a Brady list? AG Nick Brown's April 2025 answer:

1. Passage of time, by itself, does not justify removal. Brady's constitutional command does not have a sunset based on age. Misconduct from years or even decades ago can still be material impeachment evidence.

2. "Pending PID" status that ends in full exoneration creates a colorable case for removal. When an officer is added to the list while an investigation is ongoing, and the investigation ultimately clears them, courts in some other states (New Hampshire, Pennsylvania) have recognized a right to removal. Washington has no controlling case law, so the question is open.

3. Sustained misconduct findings that are later fully overturned create a similar but harder case. A reduction in punishment alone is not enough; the underlying finding has to be entirely rejected.

4. When in doubt, leave the officer on the list. The case law (and prudential considerations) push prosecutors toward disclosure. A failure to disclose can lead to reversed convictions and Bar discipline. An incorrect disclosure is virtually always protected by absolute prosecutorial immunity.

The opinion explicitly punts on the harder cases: each removal decision is fact-specific, and there is no Washington case law to provide an across-the-board answer.

What this means for you

If you're a Washington county prosecutor

The opinion gives you AG-blessed guidance for the fact-specific decisions your PID Committee has to make. Practical takeaways:

1. Time alone is never enough. Decline removal requests grounded only in "this happened a long time ago." If the underlying misconduct is still relevant impeachment material, it stays.
2. Pending PID + full exoneration is the strongest case for removal. Where the only basis for the listing was an investigation that ultimately cleared the officer, removal is supportable.
3. Sustained finding + complete factual overturn is also supportable. Note "complete." A reduced punishment does not equal an overturn.
4. Reduction in punishment ≠ overturn. Gantert v. City of Rochester (NH 2016) is the AG's authority that a reduced penalty doesn't undermine the underlying finding.
5. Collective bargaining expungement does not bind you. An officer's contractual right to have discipline expunged from a personnel file does not override the constitutional disclosure obligation. WAPA Model Policy No. 8 makes this point.
6. You have absolute prosecutorial immunity for your disclosure decisions. McCarthy v. County of Clark and the Ninth Circuit's Roe case protect you when you err on the side of disclosure. That asymmetry, protected for over-disclosure, exposed for under-disclosure, pushes the decision in one direction.
7. You always have the option to disclose-then-exclude. Disclose the underlying information to the defense, and move in court to exclude it from evidence based on the later exoneration. That respects Brady while letting the trial judge make the admissibility call.

If you're a Washington police officer on a Brady list

Washington law does not recognize a legal right to removal based on time. If you believe you were placed on a list for an investigation that ultimately exonerated you, you can ask the PID Committee in writing to remove your name and provide the exoneration documentation. A complete factual overturn of the original finding may also support removal. A reduced disciplinary penalty alone does not.

If the PID Committee declines, your remedies are limited. Washington has no case law recognizing a right to relief, but other states have, including the New Hampshire and Pennsylvania cases the AG cites. Counsel and your union may want to evaluate whether to bring a case to develop Washington law on this point.

If you're a criminal defense attorney

When a State witness is a law enforcement officer, ask the prosecutor for confirmation of whether the officer is on the Brady list, in any status (final or "pending"). Push for disclosure of the underlying basis, not just the listing fact. The AG's opinion supports that the prosecutor's disclosure obligation extends to the basis for the listing, and the prosecutor cannot lawfully give you only the listing fact while withholding the underlying conduct.

If you're a police union or labor representative

Removing an officer from a Brady list is harder than getting discipline reduced or expunged from a personnel file. Negotiate accordingly. A reduction in punishment that you can win in arbitration does not automatically clear the officer's Brady listing. Plan for the disclosure consequences during charging, not just the personnel file consequences.

Common questions

Q: What's a Brady list?
A: A prosecutor's internal list of law enforcement officers (and sometimes other witnesses) whose credibility might be impeached at trial. The list helps the prosecutor track who needs special disclosure under Brady v. Maryland and Giglio v. United States.

Q: Why does Washington require county prosecutors to have a written PID protocol?
A: Substitute H.B. 1088 (2021), codified at RCW 10.93.180. The legislature wanted standardization across counties so that defendants in different jurisdictions get comparable disclosures and officers in different jurisdictions are treated under comparable rules.

Q: What's the difference between "Pending PID" and a final listing?
A: "Pending PID" means the officer is included while an investigation is in progress. A final listing means the basis for the listing has been substantiated. The Model Policy directs that "Pending PID" status be modified consistent with the final determination once the investigation concludes.

Q: What if the officer's discipline was reduced in arbitration but the misconduct finding stands?
A: Officer stays on the list. Gantert v. City of Rochester is the AG's authority. The underlying finding is the basis; the punishment is separate.

Q: Does an officer's name come off the Brady list when they retire?
A: Not under this opinion. Retirement removes the officer from active duty, but doesn't change the historical impeachment material. If the officer is later called as a witness in a case (perhaps as a private witness or for events from their service), the Brady duty remains.

Q: What's prosecutorial absolute immunity?
A: Prosecutors enjoy absolute immunity for actions within the scope of traditional prosecutorial functions, including witness evaluation and disclosure decisions. McCarthy v. County of Clark and Roe v. City & County of San Francisco establish that immunity. Practically, this means a prosecutor's decision to disclose impeachment information about an officer cannot be the basis for civil suit against the prosecutor.

Background and statutory framework

The constitutional foundation

Brady v. Maryland, 373 U.S. 83 (1963), held that due process requires the prosecution to disclose evidence favorable to the accused that is material to guilt or punishment. Giglio extended this to impeachment evidence. Bagley clarified the materiality standard. Kyles held that the duty extends to evidence known to police even if not personally known to the prosecutor. The Brady framework is the constitutional floor; Washington Criminal Rule 4.7 and RPC 3.8(d) impose related but distinct duties.

The 2021 statute

Substitute H.B. 1088 (codified as RCW 10.93.180) requires each Washington county prosecutor to adopt a written PID protocol. The statute specifies that the protocol must address removal circumstances. The statute does not itself prescribe removal criteria, leaving that to each county's protocol (and to AG guidance like this opinion).

The Model Policy

WAPA's 2022 Model Policy directs prosecutors to:
- Create a Potential Impeachment Disclosure Committee.
- Maintain a list including officers whom the PID Committee has determined engaged in conduct that must be disclosed.
- Add officers automatically for sustained findings of misconduct involving dishonesty, bias, or criminal convictions.
- Categorize officers with pending investigations as "Pending PID."

The Model Policy does not specify when to remove an officer, leaving that to the PID Committee's "constitutional, statutory, and rule-based PID obligations."

The asymmetry of risk

A failure to disclose can result in:
- Reversed conviction (constitutional Brady violation).
- Bar discipline (RPC 3.8(d)).
- Allegations of misconduct against the prosecutor.
- Loss of public trust in the criminal justice system.

An over-disclosure typically results in:
- Defense use of the information at trial.
- Possible motion to exclude under evidentiary rules (which the prosecutor can support, as the AG points out).
- Absolute immunity for the prosecutor.

That asymmetry is what underlies the rule of thumb: when in doubt, disclose.

Citations and references

Statutes and rules:
- RCW 10.93.180 (PID protocol requirement)
- Wash. CrR 4.7(a)(3) (criminal discovery)
- Washington RPC 3.8(d) (prosecutor ethics)

Foundational cases:
- Brady v. Maryland, 373 U.S. 83 (1963)
- Giglio v. United States, 405 U.S. 150 (1972)
- Kyles v. Whitley, 514 U.S. 419 (1995)
- Bagley, 473 U.S. 667 (1985)

Other-state authority discussed:
- Duchesne v. Hillsborough Cnty. Att'y, 167 N.H. 774 (2015)
- Gantert v. City of Rochester, 168 N.H. 640 (2016)
- Fraternal Order of Police Lodge 5 v. Philadelphia, 267 A.3d 531 (Pa. Commw. Ct. 2021)
- Lane v. Marion County DA, 310 Or. App. 296 (2021)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/attorney-prosecuting-law-enforcement-officers-whether-name-law-enforcement-officer-may

Original opinion text

ATTORNEY GENERAL NICK BROWN

ATTORNEY, PROSECUTING—LAW ENFORCEMENT OFFICERS—Whether The Name Of A Law Enforcement Officer May Be Removed From A Potential Impeachment Disclosure List

There is no authority for removing names of law enforcement officers from a Brady list based simply on the passage of time. Whether other circumstances might justify removal from a Brady list is a fact-specific inquiry not susceptible to an across-the-board answer. But case law makes clear that prosecutors should err on the side of disclosure in any case in which they are unsure.

April 18, 2025

The Honorable Gregory M. Banks
Island County Prosecuting Attorney
PO Box 5000
Coupeville, WA 98239

Cite As: AGO 2025 No. 2

Dear Prosecutor Banks:

By letter previously acknowledged, you have requested our opinion on the following question:

Once a prosecutor adds a law enforcement officer's name to a list of potential impeachment disclosures, under what circumstances may the prosecutor remove the officer's name from that list?

BRIEF ANSWER

The federal and state constitutions as well as court and ethical rules require prosecutors to disclose evidence that is favorable to someone accused of a criminal offense, including potential impeachment evidence that may cast doubt on the credibility of a potential witness for the government. The case law strongly encourages prosecutors to make disclosures even in cases where the obligation to do so is debatable. For that reason, a model policy adopted by the Washington Association of Prosecuting Attorneys properly urges disclosure when a prosecutor is unsure as to their duty. We urge the same. Once prosecutors know of information or allegations about a law enforcement officer that constitutes potential impeachment evidence, we find no authority to suggest that the mere passage of time relieves them of the obligation to disclose that information to criminal defendants.

The more difficult question is whether the disclosure obligation goes away if the factual basis for the potential impeachment evidence is later called into question, e.g., if an officer was accused of misconduct but later cleared of wrongdoing in whole or in part. There is no Washington or federal authority addressing this scenario, and it is impossible to give an across-the-board answer, because such decisions would depend on the specific facts of the case. Prosecutors will have to make careful, difficult assessments in such cases. In Washington, courts have not recognized a legal right that would entitle officers to removal from a Brady list, whereas an incorrect removal presents risks of constitutional violations and could lead to a case being dismissed or a conviction overturned.

BACKGROUND

Prosecutors have an obligation to disclose to criminal defendants information that could be favorable to them and is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). This obligation is rooted in the fundamental right to a fair trial. Favorable information includes both exculpatory evidence and evidence that can be used to impeach government witnesses, such as law enforcement officers. United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150, 154 (1972).

"Brady lists" originated from this disclosure obligation. Prosecutors often maintain these lists to identify government witnesses with histories of misconduct or other issues that could impact the witness's credibility.

In 2021, the Washington Legislature passed, and the governor signed, Substitute H.B. 1088, requiring each county prosecutor to "develop and adopt a written protocol addressing potential impeachment disclosures pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and subsequent case law." SHB 1088, § 1 (codified as RCW 10.93.180(1)(a)). The bill specified that the protocols address, among other things, "under what circumstances an officer's information or name may be removed from any list of potential impeachment disclosures." SHB 1088, § 1 (codified as RCW 10.93.180(1)(a)(iii)).

To facilitate compliance, the Best Practices Committee of the Washington Association of Prosecuting Attorneys adopted a model policy about the disclosure of potential impeachment information. The Model Policy outlines the responsibilities of both law enforcement agencies and prosecutors and instructs prosecuting attorneys to create a Potential Impeachment Disclosure Committee (PID Committee) and to maintain a Brady list.

ANALYSIS

I. Passage of time alone does not relieve disclosure obligation

We can find no case law suggesting that an officer's name should be removed based simply on the passage of time. While the passage of time might go to the weight a jury should give to the officer's alleged wrongdoing or to the court's decision whether to admit discussion of it into evidence, we have found no case suggesting that the mere passage of time justifies removing an officer's name from a Brady list.

II. Two harder circumstances

Two other circumstances are more difficult to assess. The first is that of an officer who is added to a Brady list in a "Pending PID" status because of an ongoing investigation, but that investigation ultimately clears the officer. The second arises when an officer is included on a Brady list because of a substantiated charge but that conclusion is either later overturned or new information arises calling it into serious question.

It is impossible to give an across-the-board answer that will apply in every such circumstance, because there is no case law on point and the decision to remove an officer from a Brady list will ultimately turn on the specific facts of each case. That said, a few general observations may help prosecutors make these decisions.

First, in doubtful cases the safer course will be for the prosecutor to leave the officer on the list. The case law makes this clear, and a mistake in failing to disclose potential impeachment evidence can lead to serious negative consequences. Washington law does not recognize a law enforcement officer's right to removal from a Brady list. A prosecutor's decision to disclose potential impeachment evidence will virtually always be protected by prosecutorial immunity. McCarthy v. County of Clark, 193 Wn. App. 314, 337 (2016); Roe v. City & County of San Francisco, 109 F.3d 578, 584 (9th Cir. 1997).

Second, in circumstances where the only basis for an officer's inclusion on a Brady list is later deemed incorrect (e.g., where the officer was listed in a "Pending PID" status while an investigation took place and the investigation entirely exonerated the officer, or where the officer was placed on a list solely because of one incident, and new information later came to light showing conclusively that the officer did nothing wrong), there is an argument to remove the officer from the Brady list. Courts in other states have ruled that officers may have grounds for judicial relief, including removal from Brady-type lists, if they have been exonerated of all of the underlying allegations. See Duchesne v. Hillsborough Cnty. Att'y, 167 N.H. 774 (2015); Fraternal Order of Police Lodge 5 v. City of Philadelphia, 267 A.3d 531 (Pa. Commw. Ct. 2021). These cases are fact-specific and based primarily on those states' laws and constitutions. No Washington court has determined that officers in Washington have any similar right under Washington or federal law.

Likewise, if an officer has been placed on a Brady list because of a specific incident, and an arbitrator or court later reduces the officer's punishment but still finds some basis for the allegation, that generally would not provide a basis for removal from the Brady list. Gantert v. City of Rochester, 168 N.H. 640, 650 (2016). A reduction in punishment does not eliminate the finding of wrongdoing. An officer's rights under a collective bargaining agreement, which could allow for the expungement of disciplinary records under certain circumstances, do not override the constitutional rights of criminal defendants or the prosecutor's corresponding obligations under Brady.

In the absence of any case law on point, Washington prosecutors will need to use their best judgment in these circumstances based on the facts of the particular case. And a prosecutor always has the option to disclose the information but then move in court to exclude any discussion of the incident from consideration based on the later exoneration.

CONCLUSION

There is no authority for removing names of law enforcement officers from a Brady list based simply on the passage of time. Whether other circumstances might justify removal from a Brady list is a fact-specific inquiry not susceptible to an across-the-board answer. Prosecutors should err on the side of disclosure in any case in which they are unsure.

Sincerely,

NICHOLAS W. BROWN
Attorney General