CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, May 16, 2022

Hendricks on Records of Police Misconduct and Pre-Trial Proceedings

Anjelica Hendricks (University of Pennsylvania Carey Law School) has posted Exposing Police Misconduct in Pre-Trial Criminal Proceedings (New York University Journal of Legislation and Public Policy, Vol. 24, p. 177, 2021) on SSRN. Here is the abstract:
This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, the narrative fails to consider pre-trial criminal proceedings, which have the potential to be case dispositive. Exposing Police Misconduct in Pre-Trial Criminal Proceedings seeks to fill that gap.

Alarmingly, no state bail statute specifically addresses police misconduct as a factor judges may consider for pre-trial detention, a problematic rubric since many charges are based on an officer’s affidavit of criminal activity. Other pre-trial matters, such as line-up requests, motions to suppress, and motions to dismiss that bear upon law enforcement conduct, should also examine misconduct records. Unfortunately, the supporting evidence for some pre-trial matters is in the most inaccessible location—the officer’s personnel file.

These examinations largely do not occur because police misconduct records are widely inaccessible; this Article scrutinizes two roadblocks for full disclosure. This includes a critique of (a) prosecutorial Brady-Giglio policies; even though advanced by progressive prosecutors, the policies continue to prevent defendants from accessing records for timely pre-trial matters, and (b) state disclosure laws, which nearly universally preclude the release of valuable disciplinary records. Unfortunately, even the repeal of New York’s Act 50a—widely lauded by reformers—continues to shield a great percentage of misconduct records from disclosure. This Article concludes by offering suggestions on how we can dismantle these barriers and begin examining police misconduct at the several stages of a criminal case, not simply trial.

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