If an officer's past misconduct is relevant to a criminal case, can the defendant get access to those files?
As anyone who has ever contested a traffic ticket knows, courts frequently assume that whatever an officer says is the truth, even when witnesses refute the police's version of events. The presumption that an officer behaved appropriately on a given occasion or has accurately described an event is particularly challenging when it comes to scuffles between cops and citizens.
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.
Using Police Disciplinary Records for a Criminal Defense
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:
- challenge the officer's trustworthiness
- establish the officer's propensity for aggressiveness or violence, or
- demonstrate an officer's bias or hostility against certain groups.
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:
- unwarranted intrusions into an officer's personal life, such as records showing an officer's drug use or mental health issues
- unfair damage to an officer's reputation based on unsubstantiated complaints, and
- retaliation in the form of physical violence, threats, harassment, or stalking.
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.
Are Complaints Against Police Officers Public Records?
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.
Criminal Discovery of Police Misconduct Records
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.
Can a Private Citizen Request Police Disciplinary Records?
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.
Do Your Research
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.
Find the Agency 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.
Review the Procedures
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.
Public Databases and Information on Finding Police Misconduct Records
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:
- Citizens Police Data Project—Chicago police
- Law Enforcement Lookup (LELU)—New York City police
- USC Police Misconduct Registry (misconduct resulting in termination or resignation), and
- USA Today (decertified officers).
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:
- ACLU California
- New York Civil Liberties Union
- Oregon Department of Public Safety, and
- Tennessee Department of Safety.
You can also talk to a lawyer about options for accessing police disciplinary records.
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