111E
AMERICAN BAR ASSOCIATION
SECTION OF CRIMINAL JUSTICE
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
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RESOLVED, That the American Bar Association urges federal, state, local and
territorial governments to reduce the risk of convicting the innocent, while increasing the
likelihood of convicting the guilty, by adopting the following principles:
1.
Establish and enforce written procedures and policies governing the
collection and preservation of evidence and other aspects of the conduct of
criminal investigations;
2.
Establish training programs and disciplinary procedures to assure that
investigative personnel are prepared and accountable for their performance;
3.
Establish adequate opportunity for citizens and investigative personnel to
report misconduct in investigations; and
4.
Establish adequate funding for all of the above.
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REPORT
1. Establish and enforce written procedures and policies governing the collection and
preservation of evidence and other aspects of the conduct of criminal investigations.
The quality of a criminal investigation and prosecution turns on the actions of the law
enforcement personnel involved.1 If crime scenes are preserved intact and the integrity of
physical and testimonial evidence is maintained, offenders can be much more readily identified.
If the statement of a witness or other critical evidence is compromised or never gathered, it
becomes more likely that accurate determination of the offender will be impossible.2 While
investigation procedures appropriately vary by jurisdiction based on agency organizational
structure and local resources and conditions, some techniques are appropriate virtually every
time a patrol officer or investigator encounters a crime scene or investigates a crime. In some
jurisdictions, policies may be established exclusively by law enforcement agencies with
appropriate consultation;3 in others, a mayor, city council, city manager or county commission
might also have a role. In any event, written procedures should be established for every law
enforcement agency, made available to all personnel, designed to ensure compliance with law,
and the preservation, safeguarding, and collection of physical evidence, accurate questioning of
victims, witnesses and suspects, and accurate conducting of identification procedures.4
The procedures should include instruction in any applicable legal requirements,
particularly those designed to promote accuracy in criminal cases,5 such as the duty to preserve
The term “law enforcement personnel” is used here rather than, for example, “police officer,” to underscore that
the principles set out here are applicable to every agency with law enforcement responsibilities, not just police
departments, and that they are applicable not only to armed and sworn officers, but also to every employee with an
actual or potential role in a criminal investigation, such as civilian assistants and technicians.
Some of the American Bar Association’s policies on law enforcement are set out in the ABA Standards for
Criminal Justice, Urban Police Function (Second Edition), approved by the House of Delegates in 1979. These
Standards are cited and referenced where relevant.
2
BRIAN FORST, ERRORS OF JUSTICE: NATURE, SOURCES AND REMEDIES 25 (Cambridge 2004) (“Investigative work
is hampered by police officers who have been inadequately screened and trained in effective techniques for securing,
collecting and processing physical evidence, interviewing witnesses, and interrogating suspects.”).
3
Law enforcement agencies sometimes obtain legal advice from their jurisdiction’s prosecuting attorney. Some also
have in-house legal advisors. See 1 ABA Standards for Criminal Justice, Urban Police Function (2d ed. 1979),
Standard 1-7.9 (recommending that police departments maintain lawyers on staff to assist “in the planning and in the
development and continual assessment of administrative policies and training programs.”) Standard 1-5.3(b) urges
legislatures to “clarify the authority of police agencies to develop substantive and procedural rules controlling police
authority—particularly involving investigatory methods, the use of force, and enforcement policies—and creating
methods for discovering and dealing with abuses of that authority.”
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See Standard 1-4.3 (“Police discretion can best be structured and controlled through the process of administrative
rule making, by police agencies.”); Standard 1-5.1 (police should be “made fully accountable” to their supervisors
and to the public for their actions).
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See Standard 1-7.3(a) (training should “relate directly to the knowledge and skills that are required of a police
officer on the job.”)
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evidence6 and disclose exculpatory evidence under Brady v. Maryland7or other provisions of
federal or state law.8 The procedures should be regularly updated based on new and improved
techniques and methods. The procedures may be promulgated by individual agencies, or based
on models created on a state-wide or regional basis. To the extent that the area subject to the
procedures employs specialized scientific or technical knowledge (e.g., procedures governing
crime labs), the procedures should be consistent with appropriate professional standards. 9 The
procedures should be enforceable through the agency disciplinary process in the same manner as
other violations of agency rules.10 In addition, accuracy in criminal investigation should be
encouraged through the training standards and disciplinary policies and practices of Peace
Officer Standards and Training Councils, and through the priorities and practices of external
organizations that exercise oversight on police activities.11
2. Establish training programs and disciplinary procedures to assure that investigative
personnel are prepared and accountable for their performance.
As much as any other factor, successful preservation and gathering of physical evidence
and statements of witnesses and suspects turns on the quality of training. Training should
include information about the possibility that loss or compromise of evidence may lead to an
inaccurate result, including conviction of an innocent person or the inability to identify or
successfully prosecute the guilty party. Training should include presentation and discussion of
actual cases where illegal, unethical or unprofessional behavior led to the arrest, prosecution or
conviction of an innocent person, thus compromising public safety. Training should emphasize
6
See, e.g., Ariz. Rev. Stat. § 13-4240(h) (preservation of DNA evidence pending testing); D.C. Code § 22-4134 §
22-4134 (a) (“Law enforcement agencies shall preserve biological material that was seized or recovered as evidence
in the investigation or prosecution that resulted in the conviction or adjudication as a delinquent for a crime of
violence and not consumed in previous DNA testing for 5 years or as long as any person incarcerated in connection
with that case or investigation remains in custody, whichever is longer.”) Recommendation No. 5 in the
accompanying report regarding Prosecutorial Best Practices proposes that legislation should be drafted concerning
preservation of material evidence for a reasonable period of time after appeals and post conviction review are
exhausted. Current ABA Policy No. 115, approved August 2000, urges that all biological evidence should be
preserved.
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373 U.S. 83 (1963).
8
Recommendation No. 3 in the accompanying report regarding Prosecutorial Best Practices proposes that
prosecutors should ensure that law enforcement agencies understand their Brady obligations.
9
Recommendation No. 1 in the accompanying report regarding forensic evidence urges that crime laboratories and
medical examiner officers should be accredited, examiners should be certified, and procedures should be
standardized and published.
10
See Standard 1-5.3 (a) (identifying “[c]urrent methods of review and control of police activities”).
11
Such organizations include the U.S. Department of Justice which is empowered to sue police agencies under
authority of the pattern and practice provisions of the 1994 Crime Law. 28 U.S.C. § 14141; Debra Livingston,
Police Reform and the Department of Justice: An Essay on Accountability, 2 BUFF. CRIM. L. REV. 814 (1999). In
addition, the Commission on Accreditation for Law Enforcement Agencies, Inc., is an independent peer group that
has accredited law enforcement agencies in all 50 states. Similar, state based, organizations exist in many places, as
do government established independent monitoring agencies (web address http:///www.calea.org/index.htm). Crime
laboratories may be accredited by the American Society of Crime Laboratory Directors –Laboratory Accreditation
Board (http://www/ascld-lab.org) or the National Forensic Science Technology Center.
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the connection between good law enforcement-community relations and the ability to generate
trust, cooperation and provision of accurate information from members of the community.12
The training of law enforcement personnel should be tailored to their duties and
responsibilities. Every officer may at some point be presented with evidence of an apparent or
potential crime. Accordingly, even personnel without specific investigative responsibilities
should have a working knowledge of the steps to take when encountering a situation requiring
further investigation, and how to avoid compromising that investigation by their own conduct or
the conduct of others. This training should be part of the curriculum of the police academy or
other entry-level training program. Personnel who will have specialized investigative
responsibilities should be trained in methods of safeguarding, preserving, collecting and
processing physical evidence, and in questioning potential victims, witnesses and suspects.
The dynamic nature of the criminal justice system means that initial training is
insufficient because it will rapidly become dated. The absolute and relative size of the criminal
justice system has grown steadily in recent decades. As more resources are devoted to criminal
justice, scientific and technical knowledge about effective and accurate techniques of law
enforcement also advances. Therefore, even excellent training will become outdated over time.
Officers should receive ongoing, in-service training. This training should include review of
previous training and instruction in new procedures and methods.
Personnel responsible for the basic, entry-level training of officers and specialized
training of investigators should stay up to date with the current state of knowledge about
improvements in existing methods and new techniques for effective and accurate preservation of
evidence and investigation of crime.13 They should ensure that information about improved
techniques and methods is disseminated to the relevant officers in a timely fashion. The
collective knowledge and influence of the major law enforcement organizations could help
achieve this goal. These include the International Association of Chiefs of Police,14 the National
Organization of Black Law Enforcement Executives,15 the National Sheriffs Association,16 and
the Police Executive Research Forum.17
12
Standard 1-7.3 provides:
(a) Training programs should be designed, both in their content and in their format, so that the knowledge that
is conveyed and the skills that are developed relate directly to the knowledge and skills that are required of
a police officer on the job.
(b) Educational programs that are developed primarily for police officers should be designed to provide an
officer with a broad knowledge of human behavior, social problems, and the democratic process.
See also Standard 1-5.2(a) (noting value of “education and training oriented to the development of professional pride
in conforming to the requirements of law and maximizing the values of a democratic society.”)
13
See Standard 1-7.8 (urging police departments to develop “[a] research capability”).
14
Their web address is http://www.theiacp.org/.
15
Their web address is http://www.noblenatl.org/.
16
Their web address is http://www.sheriffs.org/.
17
Their web address is http://www.policeforum.org/index.html.
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3. Establish adequate opportunity for citizens and investigative personnel to report
misconduct in an investigation.
Since many law enforcement personnel work out of the sight of their supervisors and
commanders, it is critical that the citizens with whom officers interact be provided a fair
opportunity to register complaints against officers and to otherwise comment on their conduct.18
Agency personnel aware of misconduct implicating the accuracy of investigations should also
have a mechanism for reporting their knowledge. Such complaints and comments should be
taken seriously by the officials who receive them. The need for such mechanisms is especially
great when an allegation is raised concerning the nature or conduct of a criminal investigation,
because misconduct could lead to the conviction of an innocent person or the escape of a guilty
party.
The specific arrangements for accomplishing this purpose vary significantly across the
Nation. In some jurisdictions, complaints against officers are processed entirely by the law
enforcement agencies involved; in others, agencies or citizens’ groups external to the police bear
some or all of the responsibility for investigating and resolving complaints. There is some
evidence that involving civilians in complaint review procedures enhances the credibility of this
process19 and, where permitted by local law, some form of civilian review should be utilized.
Regardless of whether civilian review of complaints is utilized, objectivity, fairness, and
openness may be accomplished through adherence to standards developed by the major and
authoritative law enforcement professional organizations.20
4. Establish adequate funding for all of the above.
Even the best training and the most careful and effective procedures will be useless if the
investigative methods the training and procedures call for are unavailable.21 Appropriate
equipment, expert advice, investigative time, and other resources should be reasonably available
to law enforcement personnel when law, policy or sound professional practice requires their
employment.22 These resources may be provided internally in a particular law enforcement
See Standard 1-5.1 (“Since a principal function of police is the safeguarding of democratic processes, high priority
must be given for ensuring that the police are made fully accountable to their police administrators and to the public
for their actions.”); Standard 1-5.3 (discussing potential sanctions for police misconduct).
19
See DOUGLAS PEREZ, COMMON SENSE ABOUT POLICE REVIEW (Temple U. Press 1994).
20
See International Association of Chiefs of Police, Model Policy--Complaint Review Policy (1989); Police
Executive Research Forum, Police Agency Handling of Citizen Complaints: A Model Policy Statement, in POLICE
MANAGEMENT TODAY: ISSUES AND CASE STUDIES 88-98 (James J. Fyfe ed., International City Management Ass’n
1985).
21
See generally 1 ABA Standards for Criminal Justice, Urban Police Function, Part VII (“Adequate Police
Resources”).
22
See, e.g., ABA House of Delegates, Report No. 8A, 2004 Midyear Meeting (requiring videotaping of
interrogations).
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agency or though some centralized source, such as a state or regional crime lab or crime scene
unit.
Respectfully submitted,
Norman Maleng
Chair, Criminal Justice Section
August 2004
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GENERAL INFORMATION FORM
1.
Summary of Recommendation.
This recommendation proposes that government and law enforcement agency leaders
establish and fund investigative procedures designed to ensure accuracy in criminal
investigation and prevent wrongful conviction of the innocent, as well as training programs
to ensure the procedures are carried out, and disciplinary procedures in cases where they
are not.
2.
Approved by Submitting Entity.
This recommendation was approved by the Criminal Justice Section Council at its April
17-18, 2004 meeting.
3.
Similar Recommendations Submitted Previously.
This recommendation has not previously been submitted to the House of Delegates or the
Board of Governors.
4.
Relevant Existing ABA Policies and Affect on These Policies.
There are no relevant existing ABA Policies.
5.
Urgency Requiring Action at this Meeting.
The small but growing number of prisoners have been exonerated on the ground of
innocence shows that attention to the quality of criminal investigations is timely and
warranted.
6.
Status of Congressional Legislation (If applicable).
No legislation is currently pending.
7.
Cost to the Association.
The recommendation’s adoption would not result in direct costs to the Association. The
only anticipated costs would be indirect costs that might be attributable to lobbying to have
the recommendation adopted or implemented at the state and federal levels. These indirect
costs cannot be estimated, but should be negligible since lobbying efforts would be
conducted by existing staff members who already are budgeted to lobby Association
policies.
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8.
Disclosure of Interest (If Applicable).
No known conflict of interest exists.
9.
Referrals.
Concurrently with submission of this report to the ABA Policy Administration Office for
calendaring on the August 2004 House of Delegates agenda, it is being circulated to the
following:
Sections, Divisions and Forums:
All Sections and Divisions
10.
Contact Person (Prior to 2004 Annual Meeting).
Prof. Gabriel Chin
University of Arizona
James E. Rogers College of Law
P.O. Box 210176
Tucson, AZ 85759
Phone: (520) 626-6004
E-Mail: jack.chin@law.arizona.edu
11.
Contact Persons (Who will present the report to the House).
Neal R. Sonnett
Law Offices of Neal R. Sonnett
One Biscayne Tower
Two South Biscayne Blvd. Suite 2
Miami, Florida 33131
Phone: (305) 358-2000
FAX: (305) 358-1233
E-Mail: nsonnett@sonnett.com
Stephen Saltzburg
George Washington University
School of Law
720 20th Street, NW - Room B-303F
Washington, DC 20006
Phone: (202) 994-7089
FAX: (202) 994-7143
E-Mail: ssaltz@main.nlc.gwu.edu
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