Stanford Criminal Defense Clinic students Maya Perelman (JD ’16) and Jeannie Lieder (JD ’16), supervised by CDC instructors Ron Tyler and Suzanne Luban, recently wrapped up their final case. Below they reflect on their experience navigating the criminal justice system.
Anyone who believes that police reports tell the whole story should spend some time on the defense side of the criminal justice system. In each of our clinic’s cases, even the most cursory investigations revealed huge gaps, inconsistencies, and mistakes in the police version of events (a version that, unfortunately, too many prosecutors summarily adopt as the truth).
The inaccuracies are partly a function of police bias and partly the result of insufficient investigation. These sources of error—as well as the government’s failure to acknowledge these errors—can, and often do, have grave consequences for criminal defendants.
Police have clear incentives to avoid liability or self-incrimination, and their reports are inherently one-sided. Often, the police have a checklist of factors indicating guilt. They fill out their reports with the same rote language (sometimes just substituting, or forgetting to substitute, a different person’s name into a previously written report). During our time in clinic, we have seen the identical incriminating language used in multiple police reports, regardless of its relevance to the conduct at issue. In a vandalism case, for example, where the police awakened our client at 7:00 a.m., the officer inserted language straight from a DUI report regarding our client’s “blurry red eyes”—even though the vandalism had occurred the evening before, and alcohol use played no part in the vandalism charge. This police report read much like the DUI police report we encountered in another case.
In our DUI case, we saw how police reports rely on shortcuts over fact-specific investigations. Police DUI investigations employ the Standardized Field Sobriety Test, a battery of three tests administered systematically to evaluate a person’s level of impairment. However, because the results are also standardized, it’s easier for officers to simply check off the factors that could signal impairment without regard to a suspect’s actual performance on the test. In our client’s case, the officer’s report listed several of the go-to factors signaling impairment on field sobriety tests—but these statements were inconsistent with our client’s performance captured in the footage of the traffic stop. However, tracking down and extracting the footage from the police “dash cam” was not easy, and in the vast majority of cases, judges and prosecutors will never see it. Thus, although our review of the footage in this case helped us secure a better offer for our client, in most cases, the police report is the only “evidence” that the prosecutor and judge will use to determine a client’s sentence.
Other times, the inaccuracy stems not from sloppiness, but from purposeful deception, In another one of our cases, which involved eight police officers surrounding and tasing our client, an unarmed black man, the police had clear incentives to minimize their use of force. To this end, the police report claimed that the taser caused our client no pain and resulted only in a “small abrasion.” Unsurprisingly, our client later revealed that the taser had caused him excruciating pain.
For two of our clients, the failure to thoroughly investigate resulted in unjust charges. In one such case, three drunken intruders broke into our client’s home through his doggy door in the middle of the night. When our client, who’d been sleeping, emerged from his bedroom, he “assaulted” X, one of the intruders, in self-defense. Yet the police accepted at face value X’s later claim that he was our client’s roommate who was simply trying to get back into the house late at night. This was despite the fact that X was listed as having a different address, could never produce a key to the house, was not listed on the lease, was explicitly warned away from our client’s home, and had never paid rent. Based only on X’s self-serving claim noted in the police report, one judge threatened our client with felony charges and told him he was “stupid” for refusing to take a guilty plea. Later on, in front of a different judge, the prosecutor in the case disputed our claim that the intruder was not a roommate by reading directly from the complaining witness’s statement to the police (given a full day after the drunken intrusion took place). He, too, had failed to thoroughly investigate before the pre-trial conference.
Those familiar with rules of evidence may point out that police reports are technically inadmissible at trial. Given this, why does the unreliability of police reports matter? Won’t the true facts be revealed anyway over the course of an adversarial trial, where the defendant gets to present his side of the story and confront the witnesses against him? The short answer is that trial is an unrealistic option for most defendants, and 94% of state cases end in a plea bargain. This phenomenon has many different explanations, including the reality of the “trial penalty,” wherein a prosecutor or judge can exercise his or her discretion to punish a defendant (for example, by adding, increasing, and stacking multiple counts) for refusing to plea. Trial is not only unrealistic because of the trial penalty but because of the uncertainty it presents, the time it takes up, and the fact that many criminal defendants will not, or cannot, take the stand at trial. Some fear having their words distorted. Others worry that their past “bad acts” will come in and humiliate them. Their fears that they will not be believed are well-founded: most jurors view police officers as more trustworthy, and credit their testimony over that of the accused, presumption of innocence be damned.
Thus, for the vast majority of criminal defendants, the police report represents the sum total of the evidence that will determine their fate: it is the one document that prosecutors will always review in making an offer and the one that defense attorneys will always review in advising a client whether to accept. Under this system, the “presumption of innocence” mantra becomes meaningless; after all, in making an arrest, police don’t have the equivalent obligation to presume innocence—and their judgments continue to taint a court’s view of a defendant long before he ever gets to tell his story.
For further reading on this topic, please see Michelle Alexander’s New York Times article on “Why Police Lie Under Oath.” Find it here.