HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 95 Rights of Law Enforcement Officers and Correctional Officers
SPONSOR(S): Judiciary Committee, Criminal Justice Subcommittee, Duggan and others
TIED BILLS: IDEN./SIM. BILLS: SB 618
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 15 Y, 1 N Padgett Hall
2) Judiciary Committee 21 Y, 0 N, As CS Padgett Kramer
SUMMARY ANALYSIS
Brady v. Maryland, 373 U.S. 83 (1963), is a United States Supreme Court case which recognized the constitutional
obligation of a state attorney to disclose specified exculpatory and impeachment evidence to the defen dant in a
criminal case. As part of this disclosure, a state attorney must disclose to a defendant if a law enforcement officer
who was involved in the arrest or investigation in his or her case has previously been found to be untruthful, has
been convicted of crime, or has any other issue that places the credibility of the officer into question. To ensure such
a disclosure is made, some prosecutors use a list or other identification system to identify those law enforcement
officers or correctional officers who have been convicted of a crime or have been found to be untruthful, which is
commonly referred to as a Brady list or Brady identification system. The number of prosecuting agencies in Florida
that choose to keep such a list or identification system is unknown.
CS/HB 95 amends s. 112.532, F.S., to prohibit a law enforcement officer’s or correctional officer’s employing agency
from discharging, suspending, demoting, or otherwise disciplining an officer solely as a result of a prosecuting agency
determining that the officer withheld exculpatory evidence or because his or her name was included in a Brady
identification system. The bill does not prohibit an officer's employing agency from taking disciplinary action against
the officer based on the underlying actions of the officer, subject to any applicable collective bargaining agreement.
The bill creates s. 112.536, F.S., which requires a prosecuting agency that maintains a Brady identification system
to adopt specified written policies outlining protections for officers, which at a minimum, must include:
The right of an officer to receive written notice before or contemporaneously with a prosecuting agency
including the name and information of an officer in a Brady identification system, unless a pending criminal
case requires immediate disclosure or providing notice would jeopardize a pending investigation.
The right of a law enforcement officer or correctional officer to request reconsideration of the prosecuting
agency's decision to include the name and information of the officer in a Brady identification system and his or
her right to submit documents and evidence in support of the request for reconsideration.
Under the bill, if a prosecuting agency determines that the law enforcement officer or correctional officer should not
be included in a Brady identification system, the prosecuting agency must:
Remove such officer’s name from the Brady identification system and send written notice of such decision to
the officer’s current or last known employing agency confirming that the officer’s name has been removed from
the Brady identification system; and
If a law enforcement officer or correctional officer’s name was previously included in a Brady identification
system and his or her name was disclosed in a pending criminal case, notify all parties to the pending criminal
case of the officer’s removal from the Brady identification system.
If a prosecuting agency fails to comply with the provisions in the bill, an officer may petition the court for a writ of
mandamus to compel the prosecuting agency to comply with the procedures created by the bill. The bill does not
limit the duty of a prosecuting authority to provide Brady evidence in all cases and does not create a private cause
of action against a prosecuting agency or employee of a prosecuting agency.
The bill requires a prosecuting agency to comply with specified procedures and notice requirements if such agency
maintains a Brady identification system. To the extent a prosecuting agency’s curre nt policies and procedures
relating to a Brady identification system differ from the requirements in the bill, there may be a negative
indeterminate fiscal impact to such agencies in complying with the provisions of the bill.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Brady Giglio Lists
Brady v. Maryland, 373 U.S. 83 (1963), is a United States Supreme Court case which recognized the
constitutional obligation of a state attorney to disclose specified exculpatory and impeachment evidence
to the defendant in a criminal case. As part of this disclosure, a state attorney must disclose to a
defendant if a law enforcement officer who was involved in the arrest or investigation in his or her case
has previously been found to be untruthful, has been convicted of crime, or has any other issue that
places the credibility of the officer into question. Florida Rule of Criminal Procedure Rule 3.220(4),
similarly requires a prosecutor to disclose to the defendant “[a]s soon as practicable after the filing of
the charging document…any material information within the state's possession or control that tends to
negate the guilt of the defendant as to any offense charged, regardless of whether the defendant has
incurred reciprocal discovery obligations.”
To ensure such a disclosure is made, some prosecutors use a list or other identification system to
identify those law enforcement officers or correctional officers who have been convicted of a crime or
have been found to be untruthful, which is commonly referred to as a Brady list or Brady identification
system. Current law does not require a state attorney to keep such a list or identification system, nor
does it provide minimum standards if a state attorney chooses to keep such a list or identification
system. Since keeping a Brady list or identification system is voluntary, the number of prosecuting
agencies in Florida that choose to keep such a list or identification system is unknown.
Law Enforcement Officers’ Bill of Rights
Current law provides law enforcement officers and correctional officers with specified rights when they
are being investigated for misconduct by their own agencies. Chapter 112, part VI, F.S., commonly
known as the Law Enforcement Officers’ Bill of Rights (LEOBOR), provides specific rights when a law
enforcement officer1 or correctional officer2 is under investigation and subject to interrogation by
members of his or her agency for any reason that could lead to disciplinary action, suspension,
demotion, or dismissal. LEOBOR prescribes the conditions under which an interrogation of an officer
must be conducted, including limitations on the time, place, manner, and length of the interrogation, as
well as restrictions on the interrogation techniques.3 LEOBOR further affords officers the right to:
Be informed of the nature of the investigation;
Be provided with all evidence against the officer before any interrogation;
Counsel during any interrogation;
Have the interrogation recording;
A complete copy of the investigative file;
Be notified of the reason for disciplinary action before it is imposed; and
Address the findings in the investigative file with the employing agency before disciplinary action
is imposed.4
1 “Law enforcement officer” is defined as any person, other than a chief of police, who is employed full time by any municipali ty or the
state or any political subdivision thereof and whose primary responsibility is the prevention and detection of crime or the enforcement of
the penal, traffic, or highway laws of this state; and includes any person who is appointed by the sheriff as a deputy sherif f pursuant to
s. 30.07. S. 112.531, F.S.
2 “Correctional officer” is defined as any person, other than a warden, who is appointed or employed full time by the state or any political
subdivision thereof whose primary responsibility is the supervision, protection, care, custody, or control of inmates within a correctional
institution; and includes correctional probation officers, as defined in s. 943.10(3). However, the term “correctional officer” does not
include any secretarial, clerical, or professionally trained personnel. S. 112.531(2), F.S.
3 S. 112.532(1), F.S.
4 S. 112.532(1) and (4), F.S.
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An officer cannot be disciplined or otherwise discriminated against for exercising his or her rights under
the LEOBOR.5
Effect of Proposed Changes
CS/HB 95 provides protections to law enforcement officers and correctional officers related to their
inclusion in a Brady identification system. The bill amends s. 112.531, F.S., to define a “Brady
identification system” as a list or identification, in whatever form, of the name or names of law
enforcement officers or correctional officers about whom a prosecuting agency is in possession of
impeachment evidence as defined by court decision, statute, or rule.
The bill defines a “prosecuting agency” as the Attorney General or an assistant attorney general, the
statewide prosecutor or an assistant statewide prosecutor, a state attorney or an assistant state
attorney, a city or county attorney, a special prosecutor, or any other person or entity charged with the
prosecution of a criminal case.
The bill amends s. 112.532, F.S., to prohibit an employing agency from discharging, suspending,
demoting, or otherwise disciplining, or threatening to discharge, suspend, demote, or otherwise
discipline, a law enforcement officer or correctional officer solely as a result of a prosecuting agency
determining that the officer’s name and information should be included in a Brady identification system.
The bill does not prohibit an officer's employing agency from discharging, suspending, demoting, or
taking other disciplinary action against a law enforcement officer or correctional officer based on the
underlying actions of the officer which resulted in his or her inclusion in a Brady identification system,
subject to the rules and procedures adopted by any applicable collective bargaining agreement.
The bill creates s. 112.536, F.S., which requires minimum standards and provides specified procedures
if a prosecuting agency chooses to maintain a Brady identification system, but does not require a
prosecuting agency to maintain such an identification system. The bill authorizes a prosecuting agency
to fulfill any disclosure obligations through any procedure the prosecuting agency chooses to utilize.
Under the bill, a law enforcement officer or correctional officer’s employing agency is required to
forward all sustained and finalized internal affairs complaints relevant to ss. 90.608, 6 90.609,7 or
90.610,8 F.S., to the prosecuting agency in the circuit in which the law enforcement agency is located to
assist the prosecuting agency in complying with its disclosure obligations under the Brady decision.
The bill requires a law enforcement officer or correctional officer’s employing agency to notify the officer
of any sustained and finalized internal affairs complaints that are sent to a prosecuting agency.
The bill requires any prosecuting agency that maintains a Brady identification system to adopt written
policies that, at a minimum, require the following:
5
S. 112.532(5), F.S.
6 Section 90.608, F.S., authorizes any party in a court proceeding to attack the credibility of a witness by:
Introducing statements of the witness which are inconsistent with the witness's present testimony.
Showing that the witness is biased.
Attacking the character of the witness in accordance with the provisions of s s. 90.609, F.S., or 90.610, F.S.
Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the
witness testified.
Proof by other witnesses that material facts are not as testified to by the witness being impeached.
7 Section 90.609, F.S., authorizes any party in a court proceeding to attack or support the credibility of a witness by introdu cing
evidence in the form of reputation, except that:
The evidence may refer only to character relating to truthfulness.
Evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by
reputation evidence.
8 Section 90.610, F.S., authorizes any party to attack the credibility of any witness by introducing evidence that the witness has been
convicted of a crime if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness
was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, except that:
Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the pres ent
character of the witness.
Evidence of juvenile adjudications are inadmissible under this subsection.
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The right of a law enforcement officer or correctional officer to receive written notice through
United States mail or electronic mail sent to the officer’s current or last known employing
agency, before or contemporaneously with a prosecuting agency including the name and
information of an officer in a Brady identification system, unless a pending criminal case
requires immediate disclosure or providing notice would jeopardize a pending investigation.
The right of a law enforcement officer or correctional officer to request reconsideration of the
prosecuting agency's decision to include the name and information of the officer in a Brady
identification system and his or her right to submit documents and evidence in support of the
request for reconsideration.
Under the bill, if, after a request for reconsideration is made by a law enforcement officer or a
correctional officer, a prosecuting agency determines that the law enforcement officer or correctional
officer should not be included in a Brady identification system, the prosecuting agency must:
Remove such officer’s name from the Brady identification system;
Send written notice of such decision by United States mail or electronic mail to the officer’s
current or last known employing agency confirming that the officer’s name has been removed
from the Brady identification system; and
If a law enforcement officer or correctional officer’s name was previously included in a Brady
identification system and his or her name was disclosed in a pending criminal case, notify all
parties to the pending criminal case of the officer’s removal from the Brady identification system.
If a prosecuting agency fails to comply with the provisions in the bill, a law enforcement officer or
correctional officer may petition the court for a writ of mandamus 9 to compel the prosecuting agency to
follow the procedures provided in the bill. The bill limits a court’s scope of review in a mandamus
proceeding to determining whether the prosecuting agency acted in accordance with the procedural
requirements relating to an officer’s inclusion in a Brady identification system and prohibits a court from
reviewing the evidence or merits of an officer’s inclusion in a Brady identification system. The bill does
not limit a law enforcement officer or correctional officer from pursuing any other available
administrative or judicial remedy.
The bill specifies the requirements created do not:
Require a prosecuting agency to give notice to or provide an opportunity for review and input
from a law enforcement or correctional officer if the information in a Brady identification system
is:
o A criminal conviction which may be used for impeachment under s. 90.610, F.S.; or
o A sustained and finalized internal affairs complaint which may be used for impeachment
under ss. 90.608, 90.609, or 90.610, F.S.
Limit the duty of a prosecuting agency to produce Brady evidence in all cases as required by
the United States Constitution, the State Constitution, the Florida Rules of Criminal Procedure,
and relevant case law;
Limit or restrict a prosecuting agency's ability to remove the name and information of a law
enforcement officer or correctional officer from a Brady identification system if, at any time, the
prosecuting agency determines that the name and information of the officer is no