Given the general predisposition in favor of cops, what's a defendant with a legitimate defense to do? One viable option could be in an officer's personnel file.
Police personnel records often contain citizen complaints, internal affairs reports, performance reviews, and disciplinary board findings regarding officer misconduct claims. A criminal defendant might seek out a police officer’s prior disciplinary record to:
While potentially important to a defense strategy, many jurisdictions heavily guard police personnel records, citing officer privacy and safety concerns. Common justifications for maintaining confidentiality include protecting against:
Over time (and after numerous police brutality cases came to light), these policies have slowly started to shift toward shedding light on misconduct records. However, a criminal defendant might need to jump a few hurdles to access such documents.
State laws regarding accessibility to police misconduct records vary considerably. Some jurisdictions make these records generally accessible to criminal defendants, as well as the public. Others limit access only to substantiated claims resulting in certain disciplinary actions (such as firing), while a number of states still deem all such records confidential. And state laws aren’t necessarily the only hurdle. Local agency rules or procedures might also come into play in some jurisdictions.
In states that restrict access, a defense attorney might be able to obtain police disciplinary or other personnel records through a formal discovery request. Once a defendant makes a proper request for the personnel records of an officer-witness, the government (whether the prosecution or a different government agency that has the records) will typically review the files and provide any significant to the defense. Or the government may lawfully refuse to turn over personnel files if there's no basis to believe they're helpful or relevant to the defendant's case.
Fortunately, courts frequently oversee the review process in order to determine whether disclosure of the records would be favorable to the defense. The defense attorney might need to explain to a judge why the disciplinary records are being sought, why the records are important and relevant to the case, and why any exemptions in the law shouldn’t apply.
Access to records relating to potential police misbehavior isn't always limited to criminal defendants. Sometimes the public is entitled to information about police behavior of public concern. But that doesn’t mean it’s always easy to find. Each state and local jurisdiction may have different rules or procedures for requesting this information. Here are some general tips.
Even in a state where most police disciplinary records are public, you will still need to follow the proper procedures. For instance, you’ll likely need to file a data access request from the appropriate government agency that’s in charge of holding the records.
Determining the appropriate government agency can take some research. Try starting with the officer’s current or former employing law enforcement agency (such as a city police department or county sheriff’s office). Give the agency a call or search its website for information on requesting police disciplinary or misconduct records. Other places to search include a state or city police oversight board, an agency internal affairs division, or a state police licensing or disciplinary board.
Carefully review the law and forms before filling out and making your request. State law might prevent the release of certain information until after any pending investigations have concluded. Or the law might allow the agency to deny your request if you didn’t provide sufficient information to identify a specific record, officer, or incident. You could end up losing a filing fee and time if any required information is missing or the request isn't timely.
A few groups and organizations have compiled police misconduct data and created public dashboards. While these databases have limitations, they might prove helpful to your research. Some examples include:
Organizations and agencies may also have tips on how to file data access requests for police misconduct files in your state. For instance, check out:
You can also talk to a lawyer about options for accessing police disciplinary records.
]]>In a criminal case, the prosecution must disclose information that forms the basis of its case. This process is called discovery. A defendant is entitled to the names and statements of the witnesses that the prosecution plans to call, as well as a list of physical evidence and documents. The prosecution must also disclose any deal it has offered to a witness in exchange for testifying. While normally prosecutors have to disclose all witnesses who are relevant to the case whether or not those witnesses will testify, they often don’t have to reveal the identity of confidential informants (CIs).
The government has an interest in not giving up the identity of a confidential informant to a defendant or anyone else. After all, CIs provide the police information that can put people in prison, and they often legitimately fear retaliation.
Courts have long recognized the importance of the confidential informant in solving crime. Police gain information and leads from these informants that they may not be able to learn from other sources. If police reveal the identity of an informant, they may not get any more information from that person, and others may be afraid to serve as informants. Given the importance of CIs, courts have granted them privilege, which means that they don’t have to be disclosed in the same way as other witnesses.
The general rule is that the prosecution doesn’t have to disclose the identity of a confidential informant. However, this rule has many exceptions; if a criminal defendant can show the importance of the CI’s identity to the case, it may be possible to find out who’s been talking to the cops.
After a defendant has made a motion to reveal the identity of a CI, the court will evaluate the circumstances and evidence in the case, and then make a call about how important knowing the identity of the informant is to the defendant’s defense.
Factors the court will consider in deciding whether a confidential informer’s identity should be revealed include:
The court may also evaluate the extent to which the confidential informant was involved in the crime. If the CI directly witnessed or participated in the criminal activity, then ordinarily the court will order disclosure. But if there is evidence of the crime from a source other than the CI, the court may decide to keep the informer’s identity secret.
For example, say the police arrest Joe for embezzlement based on the information provided by a confidential informant, his accountant Ricky. Joe learns from the prosecution that the unnamed CI was involved in the embezzlement and is the main source of evidence for the prosecution. Joe argues that he needs to know the CI’s identity. He claims that the documentation the CI provided the police is false, and that he needs the CI’s identity to prove how it was falsified. Given that Ricky’s information is material to the case against Joe, and that the basis for it is an essential part of Joe’s defense, a court might grant a motion to disclose the CI’s identity. But if Ricky was only one piece of the evidence against Joe, and the prosecution had other, independent evidence of Joe’s criminal activities, then the court might decide it’s not necessary to reveal Ricky’s identity to Joe and his attorneys.
The prosecution and police typically don’t have to reveal the identity of an informant if they don’t have it. So if they get an anonymous phone call detailing some of Joe’s shady business activities and use this information as a lead to uncover Joe’s dealings, Joe would be out of luck at trial in discovering the identity of the person who ratted him out. The police are generally not required to investigate the confidential informant’s identity if it’s unknown to them.
There are two opportunities to find out the identity of a confidential informant: before and during trial. If a defendant doesn’t ask for disclosure of the identity at one of these two times, then the issue is waived (meaning that the defendant can’t find out the identity later).
It can be an uphill battle to learn the identity of a confidential informant, but discovering it can also be crucial to a defendant’s ability to mount an adequate defense. In addition, if a court orders disclosure and a witness refuses to name the confidential informant, then the court may strike the testimony of that witness or dismiss the case, so it’s worth the effort to try and find out who the confidential informant is.
]]>Traditionally, the prosecutor wasn’t entitled to information about a defendant’s case. But in recent years, discovery has become more of a two-way street. Just as defendants can discover information from prosecutors, so too can prosecutors examine certain evidence in the hands of defendants.
Pretrial disclosure of information through discovery can foster settlement and enhance the fairness of trials.
No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn’t force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.
Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can’t call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.
Not exclusively. Sure, advance disclosure promotes fairer trial outcomes, but it also promotes case settlement, which saves judicial time and resources. If a guilty defendant finds out before trial that the prosecution has a particularly strong case, that defendant will be more likely to plead guilty and save the government the hassle of trying the case. Discovery is likely a significant reason why at least 90% of criminal cases settle before trial.
Issues regarding settlement aside, discovery is intended to help defendants in the sense that prosecutors must hand over certain information that's helpful to the defense.
No. Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called “work product.” Prosecutors don’t have to turn over their work product to defendants—otherwise, it just wouldn’t be fair. Lawyers would be incentivized to hide their work or do less of it
Not really. Prosecutors can’t disclose all discovery on the eve of trial, but on the other hand, they don’t have to divulge it all way ahead of time. Discovery can unfold gradually. For example, a defendant’s attorney might receive a copy of the police report at the first court appearance, but might not receive a prosecution expert’s written analysis of blood evidence until shortly before trial.
]]>Defendants have argued that forcing them to turn over evidence to the prosecution in advance of trial violates their Fifth Amendment right to silence and the privilege against self-incrimination. But courts have upheld so-called reciprocal discovery laws. (It’s worth noting that in many cases, specifically those that settle well before trial, the defense doesn’t end up turning anything over to the prosecution.)
Each jurisdiction has its own reciprocal discovery rules. Here are partial examples of the kinds of information defendants routinely must disclose:
It used to be that defense attorneys could hide the ball, then spring evidence and witnesses on the prosecution at trial. The theory was that the government had all the power and the defense should be able to employ the scant advantages it had. But that changed in relatively recent years. If anything, legislatures are likely to enact more discovery requirements for the defense—and judges are likely to uphold them. Part of the rationale for more discovery is that it facilitates a quicker resolution of cases. The more the parties know, the better they can prepare for plea negotiations or trial.
]]>Preservation of evidence means the government must maintain the integrity of the evidence for later testing or analysis. To do this, property and evidence custodians must keep accurate and complete chain-of-custody records, properly store the evidence, and prevent contamination, damage to, or destruction of the evidence. The exact protocol will vary depending on the type of evidence, such as rules for preserving biological samples versus digital evidence.
Law enforcement doesn't need to preserve all evidence it collects. The duty to preserve extends only to evidence that might be expected to play a significant role in the suspect's defense—"material" and "exculpatory" evidence.
Material evidence is important evidence that's directly relevant to an issue in the defendant's case, such as evidence that impeaches (discredits) a prosecution witness or otherwise weakens the case. Exculpatory evidence is evidence favorable to the defendant in that it clears or tends to clear him of guilt. Exactly what evidence is material and exculpatory depends upon the circumstances of the case.
Below are examples of common types of evidence that must be preserved.
Biological evidence for DNA testing. Most states require the preservation of biological evidence gathered during a criminal investigation, such as samples of hair, blood, urine, semen, saliva, skin tissue, and fingernail scrapings.
Alibi evidence. Alibi evidence is virtually always material and exculpatory; it includes witness statements that place the defendant somewhere other than the scene of the crime and forensic evidence (like DNA) that tends to show that the defendant couldn't have committed the crime.
Crime scene evidence. Most jurisdictions have local and state rules about the collection and preservation of evidence at the crime scene, such as the murder weapon, clothing, and photographs of the scene.
Tape recordings and videotapes. The police usually aren't required to tape record statements of the defendant or witnesses. However, if they do make audio or video recordings of statements, they must preserve them.
Emergency call recordings. Law enforcement typically must preserve and disclose 911 recordings (or transcripts of the calls) to the defendant.
Investigative notes. Most states require officers and investigators to preserve investigative notes only if they made them during an interrogation of the defendant. (But if those notes contain exculpatory information, that information must be conveyed to the defense.)
While the police typically collect most evidence used in a criminal case, they aren't the only government actors who have to preserve evidence. The duty also extends to:
The duty to preserve evidence doesn't extend to private people or agencies unless they have a formal relationship with a law enforcement agency. Thus, if a private DNA lab is hired by the prosecutor to examine blood samples collected from a crime scene, that lab must protect and preserve the evidence and the results of any testing it conducts on the evidence.
The duty to preserve evidence begins once any state agency or actor has gathered and taken possession of evidence as part of a criminal investigation and generally lasts through the conclusion of the case or the defendant’s sentence.
Jurisdictions have different retention periods for different kinds of evidence, different kinds of cases, or both. The retention period for a misdemeanor case might be only a set number of months or years after the conclusion of the case. However, a state might require the preservation of biological evidence in felony murder or sexual assault cases until a defendant’s death, the defendant's release from all supervision, or indefinitely. (Retention periods for biological evidence tend to be the longest because most states give defendants a right to request post-conviction DNA testing of the evidence.)
Defendants have the burden of proving that the state violated its duty to preserve evidence and that the violation compromised the rights to due process and a fair trial. Courts won't do anything about an alleged violation unless the defendant proves that the evidence in question was material and potentially exculpatory and that the government acted in bad faith. In practice, it's very difficult to prove these points.
In order to prove that the evidence was material, the defendant must establish that:
Courts can sometimes infer materiality from law enforcement's actions. For example, the fact that the state normally preserves the type of evidence that it destroyed in the defendant's case may show that the evidence was material. Similarly, the government testing, using, or intending to test or use the evidence provides a strong indication that it recognized the importance of that evidence.
Proving bad faith is tough. It's not enough that government actors were careless or negligent with the evidence—the defendant must show willful, deceitful, or malicious intent. The government's failure to follow standard procedures when it lost or destroyed evidence may support an inference of bad faith. An example of bad faith is an officer throwing away a fingerprint sample showing that someone other than the defendant committed the crime.
There are several possible remedies for defendants who learn during the trial that the state violated the duty to preserve evidence. They can ask the court to suppress related evidence, exclude or limit testimony about the missing evidence, or dismiss the case. If the missing evidence doesn't surface until after a conviction, overturning the conviction and obtaining a new trial on appeal are possible remedies.
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