The Case for Neutral Evidence Gathering

Communities rely on police departments to enforce the law.  In turn, police departments reel in related suspects, and evidence to crimes committed.  In so doing, the police department’s goal is to provide a narrative to prosecutors.  Consequently, police departments and prosecutors are lock-stepped, where police provide the evidence necessary to allow prosecutors to proffer a guilty narrative.

A more recent study by Urban Institute’s Justice Policy Center suggests the wrongful conviction rate is at nearly 5%.  That number, however, is based upon cases where a conviction occurred in a case, divided by the number of cases with exonerations.  Thus, this number does not provide the full range of those wrongly convicted; rather, it misses a large subset of cases, like felony convictions and cases that involve plea bargains, and, instead, focuses largely on murder and rape cases.

Focusing on the (desired) Narrative

With multiple reasons impacting one case, a BGA/CWC investigation found that alleged government misconduct, or error plays the biggest role in wrongful convictions.  Government misconduct breaks down into three categories: (1) police misconduct or error; (2) prosecutorial misconduct or error, and; (3) questionable forensic evidence or testimony.

Nevertheless, the root of the problem is at the police departments.  Or, more succinctly, those who gather the evidence.  In the Podcast series “Serial,” by This American Life, they re-investigated a murder that happened in Baltimore in 1999.  In one episode of Serial, the host interviewed a retired D.C. detective, and now court expert, to gain a better perspective on why the detectives in the case chose to do some things, and not others.

Here, there was evidence at the site where the body was found that was never tested, and left out of evidence findings.  Additionally, the detectives never questioned their sole witness too hard–who also helped in the murder–despite the fact that this witness changed his story three times.  The retired D.C. detective flatly said that he thought the detectives on the case did a thorough job.  However, he noted that police have a narrative that they need to find, and once found, they will eliminate evidence that disrupts, or otherwise derails, this narrative.

Therefore, police find evidence that fits their narrative, instead of objectively gathering evidence.  Police do this in a variety of ways.  One of the more prominent ways is cordoning off an area, leaving only evidence in that aligns with the narrative, while leaving evidence out that contradicts the narrative.  Further, police also do this with suspects and witnesses, targeting those that advances their narrative, while tabling those that do not.  Thus, police act as offensive evidentiary gatherers instead of neutral evidentiary gatherers, offering a narrative to prosecutors that will allow for a conviction.

Police Departments: Politics and Demands

Though police seem to find evidence that corroborates their narrative, one must look at the politics and public demands set on a police department to understand why these institutions have turned into offensive, instead of neutral, evidentiary gathering practices

First, police departments work in lockstep with prosecutors.  Both being government agencies that enforce the law, they have a singular goal.  Thus, police and prosecutors not only work hand-in-hand, but also work bilaterally understanding what the other institution needs to accomplish their singular goal of enforcing, and convicting.

Second, police departments are under constant pressure of the political party in charge, as well as the demands of the public.  Categorizing both of these together is more than appropriate, because the political party in charge is voted in by the public.  And, when crime rates go up, or unanswered, the public takes it out on the party in charge at the polls.  Thus, most local governments are sensitive to crime rates, because the public is sensitive to them, and will act on those sensitivities during voting season.

The coupling pressure of the political party in charge, along with the demands of the public put police departments in a precarious position.  It forces police departments to balance doing good police work, with the demand of finding a wrongdoer for the political party in charge and the public.  Thus, the definition of good police work is now perceived as finding a wrongdoer that can be convicted.  Indeed, if the police repetitiously presented prosecutors with the swaths of evidence due to objective evidence gathering, not only would state and local prosecutors cry foul, but many cases would likely be found with an acquittal, instead of a conviction.

Thus, if police departments used neutral evidence gathering practices, instead of offensive evidence gathering practices that offer a narrative for prosecutors, the rate of wrongful convictions would nosedive, and serve the public in a more fulfilling, and appropriate manner.

Third-Party Contractors: Neutral Evidence Gathering is Not a Panacea

Thus far, this article has assumed that the police departments would continue to do the evidence gathering, while arguing for police departments to do the evidence gathering with a more neutral objective.  What this article has not addressed, is the possibility of third-party evidence gatherers to ensure neutral evidence gathering.

In a third-party evidence gatherer scenario, police departments would maintain all their inherent duties, with the exception of evidence gathering.  That duty would be outsourced to a third-party, likely, a contractor.

However, even if municipalities moved to third-party evidence gatherers, these third-party contractors would likely be complicit with the police departments in offensive evidence gathering.

Here, third-party evidence gatherers would still be vulnerable to political pressures.  Despite these third-party contractors’ independence from state and municipal agencies, these third-party contractors would still be paid by the state, or municipality.  Thus, state and municipal agencies would still be able to impose their will on these third-party contractors using dollars.

Additionally, the private sector lacks any sort of parallel job to that of state police, and detectives.  Thus, it would be correct to assume that the work force of these third-party contractors would be largely filled, if not completely filled, with former police and detectives.  Indeed, today, many security companies and private investigators are staffed and represented by former police, and detectives.  Thus, with the bias these former police officers and detectives would bring with them in their employment at these third-party contractors, a tendency to gather evidence with an offensive approach would still be prominent.

With wrongful convictions accounting for 5% of all convictions, the U.S. is desperate for a change of its criminal justice system.  Additionally, that number does not reflect the number of wrongfully convicted felonies, or innocent people who accepted plea deals.  Furthermore, police departments have committed themselves to offensive evidence gathering, where they focus on finding evidence that fits a narrative for prosecutors to secure a conviction.  In this lockstep, intertwined approach to evidence gathering, the U.S. stands to convict even more innocent people.

Alternatively, if police departments adopted neutral evidence gathering practices it would allow for objective findings, and decrease wrongful convictions.  Additionally, it would force prosecutors to develop a narrative themselves based on all the facts, and retain the inherent duty of juries.  However, the pressures from the political party in charge, coupled with the demands of the public to find wrongdoers, has perverted the definition of good police work to mean high conviction rates.

Authored by: Jonathan J. Cianfaglione