Agencies should have written policies requiring that officers thoroughly, accurately, and intelligibly document evidence that is collected.
Comment:
a. Documenting evidence. Agencies cannot fulfill their commitment to reliability in investigations without documenting the collection of evidence and having policies in place to ensure that is done properly. Human memory is fallible, and even trained and professional observers like police officers will recall conversations and events imperfectly. Therefore, evidence should be documented as contemporaneously as is possible. These Principles, in a number of Chapters, stress the need to document the collection of evidence by memorializing evidence in writing and through photographs. In a variety of different contexts, constitutional law, statutes, and court rules require documentation of evidence collection.
b. Recording evidence. In addition to the general principle that evidence should be documented, these Principles stress the importance of documenting evidence through a recording, when possible. A recording that creates a video and/or audio record can create a more reliable record than handwritten notes or memory. Interrogations and witness interviews should be recorded, but so should other evidence-gathering efforts such as eyewitness-identification procedures. This should be universally true absent exigent circumstances. Policies should state how recording should be conducted and take into account privacy or security concerns, for example, by enabling officers to anonymize or mask the identity of confidential witnesses.
c. Exculpatory and impeachment evidence. In rulings such as Brady v. Maryland, 373 U.S. 83 (1963), United States v. Bagley, 473 U.S. 667 (1985), and Kyles v. Whitley, 514 U.S. 419 (1995), the U.S. Supreme Court established thatthe prosecution team is responsible for disclosing to the defense any evidence that is material and exculpatory, including evidence that would impeach the credibility of witnesses, and regardless whether or not officers have brought that favorable evidence to prosecutors’ attention. Those constitutional rulings create a mandatory minimum legal standard, but one that is not highly informative to officers, who cannot be sure before any trial what evidence may or may not later be material. Nor can decisions later be made to disclose evidence that has not been documented accurately in the first instance. For that reason, officers should err on the side of collecting and documenting all such evidence.d. Policy, training, and supervision. Agencies should reinforce through policies, training, and supervision the obligation of all law-enforcement officers to document evidence collection and record evidence in a manner consistent with these Principles. Additionally, policies should set out the procedures and the practices to be followed when documenting and recording evidence in order to ensure consistent and accurate work and provide clear guidelines to investigators and other actors. Such policies should describe not only how evidence should be documented and recorded initially but also how documents and data should be retained and preserved for future use. Policy and training should reinforce the obligations to seek the truth and to document evidence with care.
Reporters’ Notes
1. Documenting evidence. Investigators should document carefully all evidence that they collect, in writing and in reports, but preferably also by recording it using electronic and automated methods. Traditionally, evidence was recorded by hand, in notebooks, and only later was some of that information reduced to typed police reports. Today, evidence far more readily can be recorded and documented contemporaneously. Chapter 10 emphasizes the need to record eyewitness identification procedures and Chapter 11 underscores the need to record interrogations. Officers should err on the side of collecting, documenting, and disclosing all such evidence and they should record evidence when it is possible and feasible to do so. The obligation to engage in accurate and complete evidence collection is not only a legal obligation flowing from constitutional, statutory, and court rules, but also is an ethical obligation for professionals. This obligation should be reflected in policy and codes of conduct.
2. Exculpatory and impeachment evidence. Constitutional rulings impose consequences for egregious failures in the investigative process. The U.S. Supreme Court has held that the police and prosecutors have a jointobligation under the Due Process Clause to provide the defense with exculpatory and impeachment evidence. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995). Prosecutors must obtain from police and are obliged to disclose to the defense, material exculpatory evidence, including evidence that would impeach the credibility of witnesses. However, evidence that is concealed or never documented in the first instance may never come to light. Moreover, chronically underfunded defense counsel may have scant resources to conduct any independent investigation. Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 Cal. L. Rev. 1585, 1624 (2005) (“[B]road discovery partially compensates for restricted defense counsel; it helps make up for the deficiency in adversary process of constrained defense advocacy.”) It is not known how often exculpatory evidence simply is not documented or not disclosed. Post-conviction reversals occur for failure to disclose exculpatory evidence. Errors in those cases likely represent only the tip of a much larger iceberg.
The obligation of agencies to collect evidence impartially extends more broadly than constitutional and state-law rules. The International Association of Chiefs of Police (IACP) Code of Police Ethics makes clear the obligation to “ascertain what constitutes evidence” and to “present such evidence impartially and without malice.” Int’l Ass’n of Chiefs of Police, Law Enforcement Code of Ethics, https://www.theiacp.org/resources/law-enforcement-code-of-ethics. Police manuals typically set out in detail the procedures for collecting and processing crime-scene evidence. See, e.g., Forensic Servs. Div., Oregon State Police, Physical Evidence Manual (2014) (setting out procedures for processing crime-scene evidence and submitting it for forensic analysis). This training is important for all officers, even in agencies that have specialized crime-scene units, because typically non-specialist patrol officers are the first to arrive at and secure a crime scene. Frank Horvath & Robert Meesig, The Criminal Investigation Process and the Role of Forensic Evidence: A Review of Empirical Findings, 41 J. Forensic Sci. 963, 966 (1996); see generally Jennifer E. Laurin, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, 71 Tex. L. Rev 1051 (2013) (describing the importance of police evidence gathering). Patrol officers can be “rather blasé” about processing forensic or crime-scene evidence and prefer to “complet[e] their preliminary report so that they may resume patrol activities.” Joseph L. Peterson et al., Forensic Evidence and the Police: The Effects of Scientific Evidence on Criminal Investigations 97-98 (1984), https://www.ojp.gov/pdffiles1/nij/grants/231977.pdf. Specialized crime-scene units, with scientific oversight, are far superior. See Chapter 9. But policies and training are needed for all officers who respond.
3. Procedures for documenting evidence. The ideal method of documenting evidence concerning live events is with audio and video recording. The recording of evidence—including during interviews, interrogations, and police encounters—is increasingly ubiquitous. Chapter 11 specifically discusses the recording of police questioning and sets out how written policies can set out procedures for such recording. The IACP recommends recording “all interviews involving major crimes” and prefers video recordings. Int’l Ass’n of Chiefs of Police, National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions 18 (Aug. 2013), https://www.theiacp.org/resources/national-summit-on-wrongful-convictions-building-a-systemic-approach-to-prevent-wrongful; see also Int’l Ass’n of Chiefs of Police, Interviewing and Interrogating Juveniles Model Policy (May 2012); Int’l Ass’n of Chiefs of Police, Electronic Recording of Interrogations and Confessions Model Policy (Feb. 2006). Many states now require that evidence be recorded during custodial interrogations. Brandon L. Garrett, Confession Contamination Revisited, 101 Va. L. Rev. 395(2015) (describing legislation in 15 states and the District of Columbia, with five additional states requiring recording due to judicial rulings, with still others doing so pursuant to policy); see, e.g., James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, Memorandum Regarding New Policy Concerning Electronic Recording of Statements 1 (May 12, 2014), http://archive.azcentral.com/ic/pdf/DOJ-policy-electronic-recording.pdf. It has become easier to record evidence with the advent of body cameras, which have brought evidence recording outside of police stations and into the field. The existence of body cameras in some jurisdictions should make the recording of evidence easy and commonplace.
The procedures for using recording devices should be set out carefully in written rules. For example, procedures should explain when a recording device may be turned off (e.g., if a witness needs to take a break), and how to document the reason why the recording device was turned off. This avoids any confusion or dispute about any gaps in the record. Agencies should set out in policy how to mask the identity of confidential witnesses whose interviews or lineup identifications are recorded in order to protect their identities. Some agencies, for example, mask confidential witnesses’ identities by altering the sound and blocking their face in the video. Similar written policies should be set out for other areas. Other types of questioning and evidence gathering, including crime-scene investigations, eyewitness-identification procedures, and witness interviews, can be recorded. These Principles reflect the view that important forms of evidence gathering should be recorded when possible, and, when that is done, written policies should set out the procedures for doing so.