And How Does It Impact a Criminal Case?
At the beginning of their careers, police officers take the Law Enforcement Oath of Honor—an oath affirming standards of integrity, bravery, and honor to the community and the law.
Unfortunately, not all that take this oath maintain these standards.
Police misconduct involves illegal or unethical actions that violate an individual’s constitutional rights.
While news headlines often focus on physical misconduct, sometimes called police brutality, police misconduct includes a wide range of offenses that can impact how a criminal case plays out.
Below, the Denver criminal defense attorneys from Wolf Law discuss several types of police misconduct and how it can impact a criminal case.
What Is Police Misconduct?
Police misconduct occurs when, while performing their official duties, an officer’s conduct violates an individual’s constitutional rights or the officer commits an illegal act (i.e., drug abuse, sexual assault, etc.).
Types of police misconduct include (but are not limited to):
- Coerced false confession—Police-induced false confessions can result from a misstep in procedure involving persuasion, intimidation, or other psychological coercion. A false confession is an admission of guilt for a crime for which the confessor is not responsible.
- False arrest—an arrest made without probable cause or a warrant. A false arrest violates an individuals’ Fourth Amendment constitutional right against unreasonable search and seizure.
- False imprisonment—occurs when an officer intentionally restricts the movement of another within an area without legal authority, justification, or consent.
- Falsification of evidence—includes offering false, fabricated, forged, or tainted evidence or preparing it and is characterized by a criminal intent to knowingly present or prepare false evidence in a legal proceeding.
- Police perjury—occurs when a police officer gives false testimony to “make the case” against a defendant the police believe to be guilty.
- Witness tampering—occurs when police attempt to cause a person to testify falsely, withhold testimony or information, or pressure the person’s absence from a proceeding to which he or she has been summoned.
- Police brutality—an extreme form of police violence that includes unjustified force, intentional harassment, verbal assault, mental injury, property damage, or death.
- Racial profiling—rather than on individual suspicion, racial profiling occurs when police suspect or target a person of a certain race on the basis of assumed characteristics or behaviors of a racial or ethnic group.
- Unwarranted surveillance—the use of surveillance methods or technology to monitor the activity of an individual or group of individuals without the legal authority to do so.
- Unwarranted search and seizure—occurs when a law enforcement officer conducts a search and seizure without a search warrant or without probable cause to believe that evidence of a crime is present. The Fourth Amendment specifically limits the power of police to make arrests, search people and their property and seize objects and contraband.
- Sexual misconduct—although most police officers do not misuse their authority, police-initiated sexual harassment, assault, or exploitation of citizens has occurred. Reported cases involve both victims and offenders in custody as well as juveniles.
How Does Police Misconduct Impact a Criminal Case?
In a criminal case, the defense counsel’s role is to raise reasonable doubt in the mind of a jury. Misconduct by law enforcement officials or evidence that calls into questions the credibility of the evidence provided by police can impact how a prosecutor, judge, or jury interprets the facts of a case.
Prosecutors, for example, are often the first people to review a potential case, and in many cases, a police report is the only evidence available to aid their decision to pursue a case or not.
Preliminary police reports can be extremely limited and incorrect. For example, witnesses can lie, administrative errors can be made, an officer’s bias can result in unintentional or willful misrepresentation of events.
If charges are misleading or deceptive, a defense attorney may advise her client to go to trial to pursue an acquittal—but this can be risky, expensive, and stressful for the defendant.
Fortunately, defense lawyers have other ways to pursue truth and justice. Intervening before charges have been filed, or pre-trial communication is available in some cases involving minor charges.
After charges have been filed, a defense lawyer may seek dismissal by gathering evidence and presenting it to the prosecution.
Once presented with new information (e.g., police made a false arrest), the prosecution may choose to dismiss the charges altogether.
Police misconduct isn’t always apparent and sometimes the evidence for it is insufficient to sway a prosecutor or a jury. In cases such as these, the defendant may be advised to take a plea agreement or risk being convicted (wrongfully or not) of a crime.
Fortunately, criminal convictions are subject to appellate review, which gives the defense counsel another opportunity to address any potential police misconduct.
The overwhelming majority of police officers in Colorado practice sound law enforcement techniques—but misconduct still happens.
You may have heard of the “blue code” or the “blue wall of silence,” which is an informal pact among police officers not to report on colleague’s misconduct or crimes. Moreover, thanks to special protections afforded by political allies and police unions, records of misconduct are rarely seen by the public.
In Colorado, Gov. Jared Polis recently signed a bill requiring completed police internal investigations files to be released to the public. With greater transparency, lawmakers hope to limit misconduct; the new law also makes it easier for lawyers to obtain important information.