What your prosecutor doesn’t know could hurt you
Report writing is not a chore, it is the best tool for avoiding lost cases, lost lawsuits and in this current era, lost careers
As was often the case, staffing was short and I was on call and fast asleep when I awoke to my "Hill Street Blues" theme song ring tone. Dispatch was reporting two suspicious males vandalizing vehicles on my campus.
It was about 0400 when I drove up in my personal car to see two young men walking past the student activity center. I stopped, identified myself and asked for identification.
Since the car vandalism report mentioned possibly slashing tires, I patted both down while waiting for confirmation on warrants. Without going into detail, my detention was outside of Terry V. Ohio. However, in Colorado, there is a specific statute requiring persons on campus to provide identification to campus officials. Therefore, college campuses are not like random street corners, but government property over which certain broader caretaking and monitoring is allowed.
The case was dismissed. The prosecutor did not cite the statute that made my stop lawful, and the judge was unaware of that specific law. My error was assuming that the prosecutor knew the law, so I did not cite it in my report. Lesson learned.
An officer in my county followed a vehicle in the wee hours of the morning that turned onto a seldom-used graveled road, then on to a worn path off the road. Knowing that some irrigation equipment was in the area and that there had been reports of poaching in the area, the officer made an investigatory stop resulting in the finding of methamphetamine in the vehicle. The district court dismissed the case and the prosecutor appealed citing the officer’s reasonable suspicion. The case ended up in the state supreme court where the officer’s actions were vindicated, and the prosecutor’s position upheld.
Being well informed about your patrol area is crucial. If it is a new assignment or even a new shift in the same patrol area, be sure to absorb as much information as you can about recent activity. Making a stop on a vehicle or pedestrian may be more solidly reasonable if you know there has been specific criminal activity that you can articulate relative to your contact or interview. Pay attention to briefings, past activity logs, seasoned officers, intel reports, crime analytics and training bulletins.
In the county officer’s case I referenced, the deputy knew what was in season for hunting, knew that copper was a theft target in irrigation equipment and knew what activity was unusual in his patrol area. When his conclusions and actions came under scrutiny, he was able to point to clearly articulated reasons for his actions.
Corrections officers and jailers are tremendous sources of information on persons, habits and contraband. Knowing where criminals hide their contraband and weapons and being able to cite the source of your information can be key in reporting on your investigation.
Providing information is essential to give prosecutors all the information they need. While there is a bit of risk involved in citing case law in a report it is helpful to cite statutes, policy, and recent trainings and briefings. The danger in justifying one’s actions under a specific case is that you may sound presumptuous to attorneys and judges, and you are subject to a diversional attack on the case you cited by defense attorneys who love doing that kind of thing.
Citing laws that you leveraged in your investigation but that may not show up in a booking or charging sheet is also helpful. Keep in mind that you want to guide the reader to see, hear, feel and experience the same things that you did so that they will arrive at the same conclusion and actions that you did.
Thinking like a defense attorney as you review the report is a challenging but necessary discipline. It is natural to assume that you did the right things for the right reasons and avoided any oversight or misconduct. It is often natural to assume that your actions were so obviously right that no one would imagine your intentions were inappropriate or unlawful.
A good defense attorney looks for any opportunity to impugn your character or professionalism, so don’t give them an easy opportunity.
Officers still report that a person “acted suspiciously” rather than articulating how they concluded that. “The subject was walking in the shadows rather than in the lighted area, held his arm to his side in an unnatural gait as though holding something, did not look toward my patrol car as I passed, and was within three blocks of two reported yard ornament thefts reported within that last two days” is much better, citing multiple factors or something very obvious.
Defense attorneys will pick on everything you articulate, but they won’t be able to convincingly create hypotheticals as easily as if you had left gaps in your reasoning. This does not mean that you are looking for loopholes or calculating ways to falsify your report but putting finishing touches on a work product that may someday find itself an exhibit before the Supreme Court.
Articulating the negatives
I know you need to get back on the street to the next 911 call, but if you can have another officer read your report with a critical eye you might be able to correct or improve your report.
Body-worn cameras don’t show hostile persons in the area or the car that pulled up while you were making a contact that caused you to move a subject. If you don’t list any witnesses, but fail to state that you attempted to find witnesses but there were none or they fled, you’ll answer the question of why there were no witnesses interviewed. If you had no available backup, say so. Since we now know that everyone is a police procedure expert, officers must anticipate even the most foolish of objections and address them with the facts of the case.
Report writing is not a chore, it is the best tool for avoiding lost cases, lost lawsuits and in this current era, lost careers.