By Michael D. Ranalli, Chief of Police, Glenville, New York, Police Department
|Scenario One: A police officer attempts to place a suspect into custody who has just committed a violent, unprovoked assault. The officer does not wait for available backup officers, fails to perceive the subject’s various nonverbal cues, and is subsequently viciously attacked by the subject. The officer is caught off guard, and the suspect repeatedly smashes the officer’s head against the ground. The officer, however, is saved by the intervention of a passing off-duty officer. |
|Scenario Two: After a 14-hour interrogation, a suspect confesses to committing a homicide. Some of the details in the confession are inconsistent with the crime scene and the autopsy. The investigator dismisses these since this investigator believes no one confesses to something they did not do. The investigator is already so buried with other cases and cannot waste more time on one with a confession. The suspect takes a plea to avoid the death penalty and, nine months later, irrefutable physical evidence arises proving the suspect did not commit the crime.|
hese two, separate scenarios involve two completely different areas of police procedures, officer safety, and investigations, and therefore are in no way related, right? Poor street survival tactics led to a near fatal assault, and poor investigative follow-up led to a wrongful conviction. The only way to correct these issues is by separate and distinct training programs, correct? Wrong. While these assumptions may be correct as to specific skill sets involved in each area, they miss the deeper, underlying behavioral cause. These officers were originally given the situational awareness skills necessary to resolve both scenarios before they became a problem; they simply did not use these skills.
The existence of wrongful convictions is due to periodic systemic failures involving all the related disciplines of the criminal justice system—the police, the prosecution, the defense bar, the judges and even the juries. Underlying this is a common theme: People are not perfect, and they make mistakes. Learning how these mistakes occurred is the only way to prevent future ones. Individuals in law enforcement should, on their own initiative, use what has been learned from such cases not only to attempt to prevent future wrongful convictions, but also to do better investigations in general. The primary goal of any investigation should be to exonerate the innocent and arrest the guilty. Police officers are ethically obligated to give their best efforts toward this dual goal. Focusing only on correcting wrongful convictions can lead to incomplete reform. The ethical obligation of exonerating the innocent is equally matched by the obligation of arresting the guilty. Current and future crime victims deserve no less than this. The same behaviors of officers that could contribute to a wrongful conviction could also lead to no arrest being made in the first place, when one in fact should have been made.
Law enforcement leadership initiatives and training programs must be used concurrently to address these issues. First, there must be an acknowledgement that officers might, over time, begin to cut corners in all areas of policing. Second, officers must learn to understand what is driving their decisions in a situation. Various forms of bias (not racial) and what makes sense to an officer can dictate that officer’s actions in an investigation. Additionally, a lack of confidence or expertise might lead an officer to conduct a faulty investigation or possibly none at all. Finally, it is necessary to demonstrate a clear intent to the community, a willingness to admit that mistakes may have been made, and the desire to address them appropriately.
To fulfill this ethical obligation, there must be a commitment of police leadership to a sustained culture of self-awareness, self-evaluation, and development of personnel. Decisions pertaining to investigations need to be made for the right reasons. In this era of doing less (“more” vanished some time ago) with less, proper case management requires full disclosure and awareness of factors relevant to the final decision of whether an arrest should or should not occur.
The issues presented in this article are complicated and far reaching. This is not intended to be an all-encompassing discussion of the issues; rather, it is a conceptual overview designed to evoke thought and discussion. This article is designed to build upon the excellent job already being done by law enforcement every day.
Consider the following: Cemeteries are full of brave men and women. Rules and procedures are designed to keep them out.
In contrast to Scenario One, here are a few situations with no explanation as to the result of each:
How should the officers in these incidents be treated? If you feel the answer is dependent on knowing the final result of each incident, you have just identified the problem. Their bravery and commitment to duty is not at issue. The result, however, should never dictate the validity of the process. But take a look at any departmental award program and you may find that, in practice, this is not the case.
- An officer leaves a position of cover to attempt to take an armed, barricaded suspect into custody after the suspect communicates an intent to surrender.
- Two officers approach the driver’s side of a vehicle together, since they are going to be taking the driver into custody for unlicensed operation.
- An officer conducts an interview and a frisk of a subject, seizing a loaded handgun from him. The officer conducted this interview and frisk through the open window of the police car while still seat-belted within.
Ask any officer what the most important aspect of policing is, and the most likely answer is going to be officer safety. But studies conducted by the United States Department of Justice seem, to some extent, inconsistent with this premise. These studies were Killed in the Line of Duty: A Study of Selected Felonious Killings of Law Enforcement Officers (1992), In the Line of Fire (1997), and Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers (2006). This last study comprises a summary of behavioral descriptors of victim officers compiled from all three studies. While there were a number of descriptors that were common to all, the most alarming was the finding that many officers did not follow all rules and procedures related to handling arrests, traffic stops, and waiting for backup (when available).1 The purpose of such rules and procedures is to keep officers safe or at least as safe as possible. If rules and procedures are meant to keep officers safe and officer safety is paramount to most officers, how can they be reconciled? The simple answer is that many officers do not realize their officer safety skills have eroded. They never had a problem doing it that way before, so, therefore, they should not have a problem in the future. In all of the above situations, the officers were acting contrary to their initial training. In a military context, when officers complete their initial training, they begin their careers attempting to “square their corners” and follow their training as closely as possible. Over time, however, these corners erode. Why wait for backup when most suspects submit and go willingly? Why change what they do now as it has always worked in the past?
If officer safety is one of the most coveted practices in policing, and some officers do not follow rules and procedures designed to help keep them safe, is it likely that officers have let their corners erode in other areas as well, such as in the investigative realm?
In a given scenario, a most logical conclusion might present itself. One might say that a few facts do not fit, but no other conclusions make sense.
Consider the following situations without knowing the result:
- An investigator is given two possible names of suspects by the best friend of a rape and homicide victim. The friend states a belief that the second of the two named suspects was sexually interested in the victim. Since there was a rape, the investigator focuses exclusively on the second name, owning to a “theory of the case” which makes sense.
- After a lengthy interrogation, a suspect confesses to a sexual assault. The suspect is charged and awaiting trial when the DNA results confirm no match for the evidence collected from the victim. The investigators come to the only logical conclusion: There must be a second perpetrator as nothing else would make sense.
In addition to Scenario Two, these situations highlight several of the issues that impact law enforcement’s role in some wrongful convictions.2 Again, what is more important: the process followed during the investigation or the resulting arrest?
Officers consciously or unconsciously need to come up with a theory of the case that makes sense. Once that is done, there can be a tendency to have tunnel vision. Other leads or avenues that do not fit into this theory may be ignored or are viewed in the light of confirmatory bias. In other words, the facts that fit the theory are accepted and followed up on, and the ones that do not confirm the theory are either dismissed or made to fit the theory. It is human nature for officers to apply their own knowledge and experience to the examination of the actions of others. For many officers, it would not make sense that a person would confess to something they did not do. From a police officer’s perspective, of course it would be hard to accept the concept of a false confession. The fact is, however, that the suspect is not a police officer, and people can and, under the right circumstances, will confess to crimes they did not commit. Does this mean that officers who elicit false confessions have done something wrong? The answer is, not necessarily. The same techniques that are successful in eliciting confessions from countless guilty persons can also lead to the occasional false confession. This could be because of the particular traits of the suspect as much as it could be potentially overly aggressive and exhaustive methods used by the investigator. Most modern interview and interrogation techniques are designed to try to reduce the likelihood of a false confession. The problem, however, may not be with how the technique is designed and taught. The problem may be how, over time, the technique is eventually administered by an officer in the field, whose “corners” may have eroded.
Similarly, officers might focus all their efforts exclusively toward a suspect who has been identified during some form of identification procedure, subscribing to the mind-set that if an eyewitness points to a suspect, then the suspect must be the person who committed the crime. The officers in this case would again be applying what makes sense to them. With proper training, officers would know that while many people accurately point out suspects in such situations, mistakes occasionally happen. The human power of perception is not perfect, and all humans are subject to making mistakes. The perception of a witness can be influenced by event stress, lighting, distance, and other factors. A full discussion of this concept is beyond the scope of this article.3
When police focus all of their efforts in the wrong direction, the true perpetrator remains free to prey upon new victims. Yet there is another way that tunnel vision and confirmatory bias can impact police investigations, and it has nothing to do with wrongful convictions. In fact, it is just the opposite: No one is arrested at all when in fact someone should have been. This can happen in cases where there is an easy explanation, such as when a death is thought to be accidental or ambiguous autopsy results lead to a conclusion of natural causes. Minor factual discrepancies that may be inconsistent with these conclusions are dismissed. Officers may be motivated to close some cases for many reasons, such as already having too much to do, pending time off, family plans that could be interrupted by an investigation, or dealing with a victim who may typically be a suspect in other cases. The officer also may not understand a particularly complex area of law, leading to the incorrect conclusion that the case is civil and not criminal.
Without proper case management, officers may routinely and unconsciously use bias and tunnel vision to support the most logical and the easiest theory, ignoring their original training. If so, they are making decisions for the wrong reasons, possibly allowing a guilty person to remain free. Training and leadership can help to broaden what makes sense to an officer.
Some officers might think that because a complainant insists on filing charges, they have no choice but to do so, and the courts can figure out the rest.
Consider the following: A veteran officer interviews a complainant and, after explaining to the person a crime has not been committed, takes the complaint anyway and files an accusatory instrument with the court. The officer in this case might feel as if there is no choice in the matter since the complainant insisted on filing the charge. The officer’s justification might be that the courts are designed for figuring out things like this.
This is a situation where both the process and the result are critically flawed. It defies the whole concept of probable cause for an arrest and is a serious problem with some officers and departments. This officer’s “corners” have eroded. Through a lack of training, a lack of confidence, and a lack of leadership, situations like this occur every day. The court system is not designed to sort out cases that should never be there in the first place. Understand that this is different from a case where the complainant provides facts that would satisfy the elements of an offense, but the only proof an officer has is the complainant’s willingness to swear to the facts. This happens all the time, especially in domestic cases. By contrast, in the above described scenario, the officer functions in an environment that does not provide empowerment to tell the complainant that the law is the law and that the complainants subjective perceptions of another’s actions does not change that. Officers will continually make the same mistakes if they are not instructed that they are making the wrong decisions for the wrong reasons. This is a leadership, a management, and a training issue. As columnist Harvey Mackay said, “Failure is an attitude, not an outcome.”
From an organizational standpoint, a true failure occurs when a mistake is allowed to occur without discovery, resulting in the possibility of it occurring again. The attitude of an organization that has no proactive method in place to at least try to identify mistakes must be reactive. Being reactive, rather than proactive, may mean it is too late to prevent damage to the image of the department with the community it serves. A proactive and honest attitude toward acknowledging and correcting mistakes can ensure the organization will not be a failure, but rather be an organization that is always striving to do better and be self-aware.
The most valued asset of any police organization must be its people, and officer safety must therefore be a priority to leadership. In order to truly accomplish this prioritization, however, leaders and training must focus more on the process and not just the result. This concept then needs to be carried into the analysis of all aspects of policing. Law enforcement is a result-oriented profession. Law enforcement leadership often looks at situations and sometimes actually gives departmental awards to officers who have put themselves, and possibly others, at risk because there was a good result.
Leadership must focus on a simple management proposition: You train people who do not know better, and you punish those who do not care. To that end, if officers and investigators do not understand the concepts behind why people give false confessions and why eyewitness identifications can be faulty, it is up to the organization to correct that. Training and leadership roles, such as case management, can correct this. For those officers who do not care, progressive discipline must follow its course. Anyone can attend training, but the leadership and the culture of the department must allow for an investigative atmosphere where healthy debate and the concept of a devil’s advocate can thrive. If something just does not make sense, then break it down and find out why. As a very basic principle, if a confession or an identification is in direct conflict to solid physical evidence, there is more work to be done.
In this economic atmosphere of doing less with less, how can departments do this? The simple answer is that they have no ethical or moral choice. The first step can be to ensure officers are putting only those cases in the system that legitimately belong there. Officers who lack the confidence and the skills to do this must be trained and supervised to ensure valuable resources are not being wasted. The culture of the department must promote doing the right things for the right reasons. Full, open debate and disclosure of exactly why a case is going to either proceed or be closed must occur. The honest reason for the closure of a case is what needs to be relayed to victims. These decisions may be based on many factors in addition to economic ones, but the reality is that departments must triage cases and make manpower allocation decisions based upon these factors.
As Albert Einstein said, “The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.” Wrongful convictions may have been the spark to light the fire, but the fire must be sustained by police leadership willing to do the right things for the right reasons. Police leaders need to use the past to focus on the future, accepting the possibility of past mistakes while attempting to prevent future ones. Individual and organizational self-evaluation and awareness are critical to this process. A willingness to accept that past mistakes may have been made is critical to the image and the professionalism of a department within the community it serves. ■
Editor’s note: IACP President Walter A. McNeil has identified wrongful convictions as an initiative of his yearlong term as president. The initiative is currently under way.
1Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller, Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers (Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation, 2006), 18–24, www.pdsdc.org/Resources/SLD/Violent Encounters, A Study of Felonious Assaults on Our Nation's Law Enforcement Officers by DOJ.pdf (accessed November 16, 2011); Killed in the Line of Duty: A Study of Selected Felonious Killings of Law Enforcement Officers, NCJ 139198 (Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation,1992); and Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller, In the Line of Fire: Violence against Law Enforcement, NCJ 168972 (Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation, October 1997), https://www.ncjrs.gov/pdffiles1/Digitization/168972NCJRS.pdf (accessed November 29, 2011).
2Case studies and articles on wrongful convictions are numerous. An Internet search of “wrongful convictions” will result in hundreds of thousands of hits. For an interesting case that involves many facets of the topic, perform an Internet search on the “Norfolk Four.”
3This is yet another area with numerous articles and publications. A good resource written for law enforcement is Matthew J. Sharps, Processing Under Pressure: Stress, Memory, and Decision-Making for Law Enforcement (New York: Looseleaf Law Publications, 2010).
Please cite as:
Michael D. Ranalli, "Wrongful Convictions and Officer Safety: Shifting the Focus to the Process," The Police Chief 79 (January 2012): 26–29.