Police Investigative Misconduct

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It is the job of law enforcement to collect, report, and order testing on forensic evidence in the advent of a crime. Forensic evidence consists of different biological evidence, like DNA or fingerprints, object evidence like fibers and tire marks, or assigning labels to injuries or events on the scene. It is mishandling of this essential duty, lying about -- or concealing -- physical evidence and eyewitness evidence, that has contributed heavily to wrongful convictions.

Falsified forensic evidence contributed to the false convictions of around 25% of known exonerations.  In most of those cases, forensic experts did not actively engage in misconduct, but instead were working with false information or made mistakes in their analysis. Most often, they concealed forensic information that might have helped the defendant. However, sometimes physical evidence was purposely falsely "matched" to a defendant or evidence excluding the defendant was hidden.

There were several cases of police planting the evidence that was tested by forensic analysts, but most often they were responsible for concealing exculpatory evidence. In 33% of exonerations where concealing evidence occurred,  police officers (and occasionally forensic analysts) either hid the exculpatory evidence from the prosecution as well as the defense, or informed prosecutors without leaving a record.

Sources:

Gross, Samuel R., et al. "Government misconduct and convicting the innocent, the role of prosecutors, police and other law enforcement." U of Michigan Public Law Research Paper 21-003 (2020): 21-003.

In a large majority of exonerations to date, eyewitness misidentification has contributed in some part to the wrongful conviction. Beyond the general unreliability of memory, especially over time or under extreme pressure, "system variables" -- those employed by the legal system like pointed questioning, lineups, and photo arrays -- have influenced a large number of eyewitness misidentifications.

According to the University of Michigan's 2020 study on government misconduct in the conviction of innocent people, 17% of exonerations to date included witness tampering.  5% of this was by threat,  13% by manipulation, and in a few instances, by both techniques.

Witness tampering takes place when an investigating officer persuades or manipulates a witness to testify falsely against the defendant. The University of Michigan fits most witness tampering into three categories:

 1. Procuring false testimony (encouraging a witness to testify to facts the officer knows did not occur)

2. Tainted identifications (encouraging a witness to identify a suspect, regardless of if the witness recognized the suspect or not)

3. Improper child questioning

Many victims of witness tampering lie knowing that they do not recognize the defendant but believe, through direct or indirect indication from police, that the men they accuse are guilty. Others, through manipulation of photo set ups or indication from police, may truly think they are identifying a person they saw. 

Tainted Identifications

One of the techniques police use to gain a false testimony is manipulating eyewitness identification. The National Registry of Exonerations identifies four categories that police use to taint these identification procedures.

1. Telling

"Telling" is the most common form of misconduct in these procedures. Around 50% of the cases of tainted identifications examined by the NRE  occurred after police told the witness directly who to pick, and in 12%, this "telling" was accompanied by a threat when the witness expressed reluctance. Almost all of the identifications gained by "telling" were lies, however, in a few, witnesses may have actually come to believe that they truly saw the suspects they were told to pick. 

2. Displaying

In 32% instances of tainted identification, police visually manipulated the lineup so that the witness would be more inclined to pick them. Clothing was a common form of "displaying," drawing witnesses to pick those dressed in prison clothes while others were plainclothes, or those purposely fitted in the clothes the perpetrator had been described in. Other visual tactics were employed in lineups, like having exonerees be the only member of their racial group in the row.

3. Repeating

In 14% of these cases, the exoneree was shown to the witness multiple times when not picked the first time, displayed in multiple presentations.

4. Lying

In 7% of cases of tainted identification, police fed the witness false information to explain differences in appearance between the suspect and the eyewitness's initial description. 

Sources:

Jackson, Kaitlin, and Samuel  Gross. “Tainted Identifications.” National Registry of Exonerations, 22 Sept. 2016, www.law.umich.edu/special/exoneration/Pages/taintedids.aspx. 

Gross, Samuel R., et al. "Government misconduct and convicting the innocent, the role of prosecutors, police and other law enforcement." U of Michigan Public Law Research Paper 21-003 (2020): 21-003.

“Eyewitness Misidentification.” Innocence Project, 1 May 2023, innocenceproject.org/eyewitness-misidentification/?gclid=CjwKCAjwsvujBhAXEiwA_UXnAMYPQ8X-oMol3up-r40Lfj-fYC30-9TleB8gMbTDphe04qM2St_xNhoCbrYQAvD_BwE. 

"Jailhouse snitch" testimony, while illegal, is still a common technique of securing a statement from an incarcerated witness in return for a reduction of their own sentence. It is known to be unreliable for that very reason: the witness is strongly motivated to lie to avoid prison time.

This program gained national attention in Orange County, California, where an investigation by the Department of Justice uncovered jailhouse informant program conducted in tandem by the Orange County District Attorney's Office and Sheriff's Department. This tainted murder prosecutions from 2007 through 2016, systematically violating defendant's civil rights -- their Sixth Amendment right to counsel and Fourteenth Amendment right to due process. The Orange County Sheriff deputies maintained a system for years to manage, conceal, and reward their custodial informants, working with prosecutors to hide exculpatory information regarding custodial informants to defense counsel. 

8% percent of all exonerees in the NRE were convicted at least in part by jailhouse informant testimony -- amounting to 119 out of 1,567 exonerations. This program is especially common amongst murder cases: 102 out of 119. And among these  murder prosecutions, the more extreme the punishment, the more likely a jailhouse informant was used: 23% of exonerations with death sentences as opposed to 10% of murder cases with less than life in prison at stake.

Sources:

Jackson, Kaitlin, and Samuel  Gross. “Snitch Watch” National Registry of Exonerations, 13 May. 2015, https://www.law.umich.edu/special/exoneration/Pages/Features.Snitch.Watch.aspx

https://www.justice.gov/opa/pr/justice-department-finds-civil-rights-violations-orange-county-california-district-attorney-s

Qualified immunity is a rule created by courts that protects police officers from going on trial for illegal conduct. Even as more eyes have been turned to police misconduct, qualified immunity has provided an almost failsafe mechanism to protect officer's wrongdoings, at the expense of citizen's constitutional rights. The law has it that an officer is protected from prosecution unless the person bringing charges against them can prove that:

1. the evidence shows that the conduct was unlawful; and
2. the officers should have known they were violating “clearly established” law, because a prior court case had already deemed similar police actions to be illegal.

The second requirement is a particularly powerful shield for police, as the "clearly-established" precedent required is an extremely difficult hurdle, requiring an almost exact case to go forward.  

The Supreme Court has accepted a very restricted definition of “clearly established,” and thus required lower courts to accept as precedent only cases with almost the exact details matching the case on hand. 

The Supreme Court sets the standard for how federal appeals courts handle cases of qualified immunity, which have, over the past 20 years, shown an escalating tendency to grant immunity to police. These rulings then set the standard for all claims of misconduct against police, as they must be followed by district courts below them. 

The Supreme Court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals, whereas for plaintiffs’ appeals, the acceptance rate was slightly below the court’s average, and was nearly always decided in favor of police. 

The rules are also skewed in favor of the police as well, who are allowed to request immunity before all evidence has been presented, and, if denied immunity, can appeal immediately rather than after the final judgement, as litigants must do. Thus, the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police. 

Sources:

Chung, et. al. "For Cops Who Kill, Special Supreme Court Protection.” Reuters, 8 May 2020, www.reuters.com/investigates/special-report/usa-police-immunity-scotus/. 

“Qualified Immunity.” Equal Justice Initiative, 31 Jan. 2023, eji.org/issues/qualified-immunity/.