Legal Officers Section
Annual Conference
International Association of Chiefs of Police
San Diego, California
November 12, 2000
I. Introduction: The crisis of confidence
Often, discussions concerning officer integrity among prosecutors and attorneys representing law enforcement agencies revolve around the impact on the criminal case, and the need for disclosure under Brady and its progeny. Those concerns are obviously important ones.
It is equally important, however, to recognize the overall impact of alleged and actual police misconduct on the entire justice system and the community. There is increasing skepticism among all citizens about the integrity of police officers and the ability of law enforcement agencies to control officers, and this skepticism is reflected by both the jurors and the jurists who hear law enforcement cases.
This year saw, for the first time ever, a United States Supreme Court opinion in which four justices of the Court opined that some citizens might well be justified in their belief that fleeing from an approaching police officer may be the best thing to do, whether innocent or guilty. According to these Justices, the belief by minorities and those residing in high crime areas that contact with the police can itself be dangerous is a belief supported by evidence that is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.Illinois v. Wardlow, 528 U.S. 119, ___ (2000).
This reflection of mistrust in the profession is of grave concern. Successful completion of the mission of law enforcement keeping the peace in the communities served relies in large part on the confidence of the community and of those who hear and decide criminal and civil cases involving police actions. The confidence the public has in the integrity of the individual law enforcement officer is the critical issue. Maintaining that credibility requires the consistent and insistent application of the highest standards of conduct for all members of all law enforcement agencies, nationwide.
Today, with the speed and coverage of the electronic media, every allegation of police misconduct has the potential to affect all agencies, and the public's opinion of the profession as a whole. If there ever were minor ethical infractions, there certainly are none any longer. Nor is there any reason to believe that such infractions, when they occur, can or should be hidden from public scrutiny.
II. How does information concerning officer ethical violations come to light?
Information concerning officer integrity issues can be released in a variety of different ways.
A. Brady
Release of exculpatory information through the mandated disclosure requirements of Brady v. Maryland, and its progeny.
B.The media.
In some situations, the release follows victim contact, citizen reporting, or unofficial leaks of information from within the policy agency itself. In other situations, the information is released by the agency as appropriate and necessary, to inform the community of conduct of the agency's officers and the agency's response to that conduct.
C. Public records and freedom of information laws.
Each of the 50 states and the federal government have some form of freedom of information or public records law. The statutes differ considerably in their impact on police agencies, and range from those which protect most police records from release to those that require the release of most police reports, even in ongoing police investigations.
In Arizona, for example, judicial interpretations of the state public records law have led most police agencies to regularly release, upon request, files of internal investigations. While judicial interpretations of the public records law provide that some private or confidential information may be removed or redacted from the files prior to their release, these exceptions are limited in scope and the burden is on the state to justify the refusal to release any information. In addition, by statute, attorney's fees may be (and are) awarded to any person who is unreasonably denied copies of requested records. Cox v. Collins, 175 Ariz. 11, 952 P.2d 1294 (Ariz. 1993).
In California, state statutes establish a presumption of confidentiality for internal affairs files [which may be] overcome by a litigant who can show that the information sought is relevant to the lawsuit in question. {1} Similarly, in New York the statutory privilege for police internal affairs files may be overcome by a clear factual showing that disclosure is warranted, which will result in an in camera review by the court, and an ultimate determination of whether the records are to be released. {2} While not statutory in nature, a similar process is used in Massachusetts. {3}
Whatever the jurisdiction, it is safe to say that the current trend is toward release to the public of records held by police agencies, and further that both the press and the public favor such release of records. {4} According to one commentator:
[T]he FOIA and its state equivalents are well suited to provide the public with an effective check on abuses in the law enforcement context.Moreover, because other checks on police agencies are either not widely used or are only marginally effective, strong freedom of information laws serve as a fundamental bulwark against police misconduct. {5}
III. How does the information released affect officers and agencies?
Obviously, police misconduct and reports of unethical conduct on the part of police officers (whether or not accurate) affect the community's perception of law enforcement and impact the success of both proactive and reactive policing efforts in the community
A. Civilian Review Boards; Police Auditors; Hot lines to report police misconduct
These types of organizations are a direct reflection of a public perception that police officers are out of control and police agencies are unable to maintain control over their officers. In fact, the establishment of these boards reflect a basic belief that outside investigations of police misconduct are more credible than internal investigations of police misconduct.
B. National reports like those recently issued by the United States Civil Rights Commission.
It was reported last week that the United State Civil Rights Commission held another news conference on police misconduct and issued a draft report. The report purportedly urges that Congress make it easier for people to sue abusive police offices and for the government to investigate police misconduct. This type of report does not differ from others issued recently that offer significant criticism of the actions of law enforcement officers and agencies. The Commission has been joined in such criticism by groups like the ACLU and similar organizations.
C. The proliferation of reports, statutes and studies of racial profiling.
Whether considered a subset of the officer integrity issue or considered a separate problem altogether, racial profiling (and the argument over its existence) is often bundled together with other examples of alleged misconduct to justify the need for a radical overhaul of police agencies (and police authority) in the United States.
D. The effect on criminal and civil trials.
In addition, agencies must be aware of the fact that, under the existing rules of evidence,{6} much police misconduct can form the basis of critical cross-examination of an officer in the courtroom. Incidents of unethical or criminal misconduct can affect the officer's ability to testify in both criminal and civil trials. In addition, such incidents may result in direct civil liability for the agency, and may affect the agency's ability to defend itself in other, unrelated civil trials.
Much of the discussion concerning officer integrity has focused on the lie: the officer who lies in denying his or her own conduct, and the code of silence or noble cause rationale that results in officers lying to protect their fellow officers. However, lying is only one subset of the types of misconduct which may be used to attack the credibility of a testifying officer, to the detriment of both criminal and civil cases that may involve that officer. A quick (and basic) review of the relevant rules of evidence reveals the ways in which instances of officer misconduct may provide damaging substance to the other side's cross-examination.
Rule 404. Character evidence generally; prior bad acts. Character evidence is not generally admissible to prove that a person acted in conformance with their character on a particular occasion, with certain exceptions related to the character of persons accused of a crime or their victims, and exceptions stated in other evidence rules, such as Rules 608 and 609. Evidence of prior bad acts is also inadmissible except when necessary for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity and absence of mistake or accident.
Rule 607. Impeachment. The credibility of a witness may be attacked by any party, including the party calling the witness.
Rule 608. Character evidence; untruthfulness. Allows opinion or reputation evidence concerning a witness' character for truthfulness, once the witness' character has been attacked. A witness may be asked about prior conduct that reflects on his or her credibility, but such conduct may not be proved by extrinsic evidence.
Rule 609. Conviction of a crime. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted within the last ten years of a crime carrying more than one year incarceration as a penalty, or of any crime that involves dishonesty or false statement. The rule generally results in the admissibility of felony convictions, as well as misdemeanor convictions for crimes involving dishonesty or false statement. There is general agreement that misdemeanor convictions for crimes such as perjury, fraud, falsifying government forms and counterfeiting are admissible under this rule. There continues to be disagreement on the admissibility of convictions for other crimes under this rule; for analytical purposes the question is whether the crime necessarily contains an element of deceit. If the convictions are to be introduced against a criminal defendant, there are additional limitations on their admissibility.
Examples of the application of these rules include cases like the ones listed below.
The court allowed an officer to be cross-examined using prior internal affairs investigations that showed he had been suspended for stealing department gas and lying about it and that he had taken a subway pass from a young man, ripped it up and lied about it. United States v. Davis, 183 F.3d 231 (3rd Cir. 1999).
The fact that an internal investigation had taken place investigating whether the officers had perjured themselves during the defendants' first trial was an appropriate subject for cross-examination of the officers and other government witnesses. United States v. Hitchmon, 609 F.2d 1098 (5th Cir. 1979).
Cross-examination of defendant officer, in a prison use of force case, regarding prior incidents involving false statements (filing a false worker's compensation claim and giving false information to a lieutenant) was related to character for truthfulness and, therefore, was permitted. Hynes v. Coughlin, 79 F. 3d 285 (2nd Cir. 1995).
Cross-examination of witness officer regarding ten year old internal investigation in which the officer had admitted being untruthful when filing an overtime report permitted, as the allegation provided evidence of the untruthfulness of the witness. Deary v. Gloucester, 9 F.3d 191 (1st Cir. 1993).
Evidence of prior suspensions for excessive use of force admitted against two officer witnesses in the criminal trial of two other officers for civil rights violations. United States v. Ruiz, 579 F. 2d 670 (1st Cir. 1978).
Evidence of prior performance evaluations of two law enforcement officers properly admitted (one to prove intent, the other to impeach trial testimony) in a civil rights action accusing the officers of excessive use of force in an arrest and booking. The performance evaluations noted that one officer tends to get into arguments with inmates, lets his temper flare up too quickly and that the other officer is a good officer, however he needs to learn to control his temper. Carson v. Polley, 689 F. 2d 562 (5th Cir. 1982).
Opinion of a prosecuting attorney that one of the undercover officers involved in defendant's case was untruthful and that she did not believe him ruled admissible. Evidence as to why she held such an opinion (an investigation that revealed the officer's untruthfulness in other cases, shortly before the officer resigned from the department) was ruled inadmissible. United State v. McNatt, 931 F.2d 251 (4th Cir. 1991).
IV. How should agencies respond?
Although it would appear to go without saying, it is still necessary to repeat: agencies must terminate officers who lie or who engage in any conduct which raises concerns about their credibility. Once an officer is caught in a lie, that officer is a liability in every criminal or civil case involving the officer. In addition, when an officer who is caught lying is not terminated, the message is sent to the remaining officers on the force that lying is an acceptable behavior (or at least not one that will cost an officer his or her job).
In addition to dealing directly with each current or future case of unethical conduct by an officer, agencies may wish to consider the following:
#1. Dedicate more resources to screening and background investigations of applicants. Raise, don't lower, agency standards. Focus on integrity issues.
#2. Have a STRONG and CLEAR integrity policy in place. No officer should ever be able to truthfully tell a civilian review board that he did not realize that lying would cost him his job.
#3. Apply the agency policy to promotions as well as recruitment. The demand for ethical conduct must apply equally to command personnel. The command officer who lies in the course of supervision or administration of a work unit is no less detrimental to the agency than the officer who lies about the traffic stop on the street.
#4. Educate the merit/review board. Depending on the nature of the agency's specific review process, the agency may wish to:
Schedule a presentation, at a meeting other than an appeal by an officer, which presents and explains to the board the agency integrity policy. Explain internal investigative processes and invite questions from the panel.
Do the same sort of education with those who appoint the civilian appeal panel. Work to help them understand the costs, both to the effectiveness of the policing effort and to the pocketbook of the taxpayers (through civil litigation), of keeping untruthful officers on the job.
Seek the assistance of the local prosecuting attorneys during the appeal hearing. Notice them as witnesses and have them testify about their willingness to use an officer in a criminal case who has been found to be untruthful during an internal investigation.
Work with the attorneys representing the agency to appeal any finding that an untruthful office must be placed back on the job. This is a place to utilize all of the legal resources at the disposal of the agency.
#5. Finally, get the state certification agency on board. In every state, the rules under which officers are certified require that applicants be of good moral character. Generally, state certification agencies have the ability to decertify law enforcement professionals who fail to meet state standards. Where there is no such process, support legislation to provide the state board with such power and authority.
The Arizona experience
In Arizona, for example, the Arizona Peace Officer Standards and Training board has established certain standards for entry level officers. The background investigation on an applicant must demonstrate that the person meets [the stated] minimum qualifications, has not engaged in conduct or a pattern of conduct that would jeopardize public trust in the law enforcement profession and is of good moral character. Ariz. Admin. Code, R13-4-105. In addition, a peace officer may have his or her certification suspended or revoked for a variety of offenses, including the use of narcotics or drugs, using or being under the influence of alcohol while on duty, the commission of an offense which would be a felony in the state of Arizona, or an offense involving dishonesty, unlawful sexual conduct, or physical violence, or malfeasance, misfeasance or nonfeasance in office. Ariz. Admin. Code, R13-4-109.
In addition, AzPOST rules require law enforcement agencies to notify the Board of the separation of a peace officer. The report must be sent within fifteen days of the separation and must include the nature of the separation, a detailed description of any separation for cause, and a detailed description of, and supporting documentation for, any cause existing for suspension or revocation of peace officer certification. Ariz. Admin Code, R13-4-108.
Following receipt of a report of conduct that may merit suspension or revocation, AzPOST is empowered to begin an administrative process, which includes notice to the employee and an administrative hearing. Ultimately, the AzPOST board may move to suspend or revoke an officer's certification. Since the AzPOST board is comprised of chiefs of police and sheriffs as well as rank and file representatives, it is a knowledgeable board that does need to be educated in the importance of integrity in the law enforcement profession.
Since state certification is a requirement under state law for peace officers, revocation of certification provides a reason for termination that local civilian appeal or merit boards are unable to legally ignore. In many jurisdictions it will be much easier to get the approval of the local merit board for a termination based on a revocation than it will be to get approval of a termination for alleged misconduct.
In the last couple of years, the AzPOST Board has begun an effort to educate officers, and others, regarding its role in protecting the integrity of the profession. Following each meeting of the Board at which it rules on pending certification cases, the Board issues the AzPOST Integrity Bulletin. This Bulletin summarizes some, though not all, of the cases before the Board, and the action taken by the Board. Attached to this outline is the most recent edition of that Integrity Bulletin. In addition to wide distribution of the printed copy of the bulletin, it is available on the Internet at www.azpost.state.az.us
The actions of AzPOST have widespread approval among police commanders and managers in Arizona. Revocations have occurred in situations where local authorities reinstated officers who had been terminated. Agencies may wish to approach their own state certification boards with this model in mind.
Officers who lie and engage in other unethical behaviors endanger themselves and their agencies, exposing themselves and others to criminal and civil liability, as well as community ridicule and outrage. Police attorneys and police managers alike must continue to educate from within concerning the legal and practical consequences of failing to aggressively address officers with integrity issues. Every effort must be made to assist with the education of outside boards, preparation and presentation of discipline cases and appeals, and drafting of legislation to strengthen state disciplinary boards to act as needed. Proper agency response to officer misconduct is imperative if the public's trust in law enforcement in America is to be restored.
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1.John Joseph Powers, Jr., Eroding the Blue Wall of Silence: The Need for an Internal Affairs Privilege of Confidentiality, 3 Suffolk Journal of Trial and Appellate Advocacy 19 (2000).
4.Gabriel J. Chin and Scott C. Wells, The "Blue Wall of Silence" as Evidence of Bias and Motive to Lie:A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233 (1998).
5.Prime, Jamison S., A Double-Barrelled Assault: How Technolongy and Judiciail Interpretations threaten Public Access to Law Enforcement Records, 48 Fed. Comm. L.J. 341, 345 (1996).
6.This discussion refers to the Federal Rules of Evidence. Most states have similar rules, though some states have amended specific rules to limit or expand what may be admissible in a particular state court.
7. Failure to file a tax return, for example, was found admissible by the Eleventh Circuit in United States v. Gellman, 677 F. 2d 65 (11th Cir. 1982), but not by the Third Circuit in Cree v. Hatcher, 969 F.2d 34 (3rd Cir. 1992).