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Maintaining Investigative Credibility
Whenever the topic of use of force (UOF) investigations is discussed, the primary focus is generally upon the thoroughness or effectiveness of the investigation itself. However, equal importance and consideration should be placed on the credibility of the investigation because nothing can render an investigation’s overall value as ineffectual and worthless more quickly than a successful attack on its credibility.
For many jurisdictions, critical UOF investigations not only deal with the appropriateness of the force used during a given incident, they often find themselves a focal point for whatever issues communities are currently dealing with at the time. Even though these issues may be entirely unrelated to the UOF incident (e.g., government unresponsiveness, community distrust or anger toward an existing policy), the resulting UOF investigation and adjudication can be the ideal catalyst for expressing unconnected community discontent.
This is all the more reason law enforcement agencies need to ensure their UOF investigations are viewed as credible by their communities, civilian advocacy groups, oversight entities, politicians and reviewing prosecutors. It is imperative these individuals have good cause to believe in your agency’s investigative process, that its investigations are truthful and impartial without regard to outcome, and the adjudication process is rational and fair-minded.
Whatever adjective your agency uses to describe the overall character of its critical UOF investigations (trustworthy, reliable, credible, honest, impartial, integrity), significant effort needs to be placed upon ensuring that objective is achieved. To that end, the following proven operational recommendations may be of assistance to your agency in avoiding issues of investigative credibility, and ensuring its investigations are externally acceptable.
Welcome Transparency and Oversight
Many agencies resist discussing their involvement in a critical use of force incident. Get out in front of the incident by developing timely press releases inclusive of generic incident information, without jeopardizing your investigation or the statements of potential witnesses. Ensure all information disseminated by your department is accurate, as any inaccuracies, later corrected by appropriate information, can result in allegations of investigative cover-ups, further damaging the integrity of your investigation.
If your agency is subject to civilian oversight, that relationship can be very beneficial to the organization. Because they closely scrutinize a department’s operations and investigations, oversight agencies are typically trusted by the communities they serve, and their constructive involvement in your investigations can result in an increased measure of community trust in the investigative process and eventual adjudications. As has been experienced by many departments, community members or groups questioning the credibility of a department’s investigation often meet with oversight commissions to discuss their concerns.
It is at this juncture that civilian oversight commissions have the ability to alleviate many of those concerns without compromising the confidentiality of the investigation because they were privy to the evidence at the scene and heard the officer and/or witness statements regarding the incident. Departments can increase their involvement with civilian oversight commissions and ensure protection of their investigations and confidential information through the drafting of memorandums of agreement with specific provisions acceptable to both parties.
Maintain Appropriate Separation
For an investigation to maintain its credibility, it is critical the investigative branch remain totally separate from the entity or use of force board charged with the responsibility of reviewing and adjudicating the matter. Any investigative directions provided by the adjudicative entity, whether legitimate, constructive or otherwise, could be perceived as an inappropriate attempt to interfere with an investigation, or an effort to direct the investigation toward a desired outcome, thereby impacting the overall credibility of the investigation.
There should always be insulation, accomplished by an organizational chart or delineated in a directive, separating the investigation from adjudication. Any perceived deficiency in this particular area has the very real potential of creating credibility issues for the public, an agency’s personnel, and the investigators assigned to conduct such investigations.
Avoid Leading Questions
There are two closely related areas that can quickly become problematic for an agency’s investigations during the investigative process: investigators asking leading questions of the officers and witnesses and investigators advocating on behalf of the officer and/or department. In the first scenario, investigators can, by mistake or intention, offer information not yet discussed by the officer or witness, thereby contaminating an interview response.
Any appearance of providing an interviewee with the answer, or putting words into his/her mouth, can be very damaging to the believability of an investigation. Leading questions can be avoided by having the witness first provide a running narrative account of the incident, with the investigator asking follow-up questions at the conclusion for clarification purposes.
In the case of advocacy, an investigator can severely damage the impartiality of an investigation by putting forth the impression he/she is taking sides in an investigation. Advocacy is typically evidenced by an investigator appearing to give more credence to an officer’s or department’s version of events, and/or to evidence supporting only the officer’s/ department’s version.
Moreover, discounting the credibility or importance of potentially unfavorable witnesses and not giving sufficient weight to the existence of contrary evidence are other overt forms of investigational advocacy that can damage an investigation in the perspective of civilian adjudicators and outside reviewers.
Critically reviewing a completed investigation with a fresh set of eyes (someone uninvolved with the investigation) is one of the most effective methods of ensuring the investigation remains impartial and does not give preference to one side over the other.
Conduct Thorough Investigations
Incomplete investigations, whether intentional or unintentional, can also swiftly damage an agency’s credibility when it becomes apparent, generally to an external reviewer like the U.S. Department of Justice or civilian oversight commissions, that an investigation has avoided addressing a critical issue uncovered during the inquiry, or if the inquiry failed to go far enough.
These exclusions, also referred to as “the big pink elephant in the room,” typically entail the presence of potential administrative or criminal misconduct and department policy violations, and are evidenced by the simple act of not asking the hard questions, or shifting the focus to another area of the investigation.
An important note for agencies not subject to civilian adjudications or external reviewers is that investigations can always be subjected to later review by a District Attorney’s Public Integrity Unit, State’s Attorney, Attorney General or the U.S. Department of Justice. It is imperative that agencies work hard to ensure their investigations are viewed as credible and thorough by members of the public, and also by partner agencies throughout the justice system.
To that end, many agencies use investigative question prompts to help guide an investigator’s line of questioning for specific UOF incidents (e.g., In Custody Deaths, OISes, K-9 contacts) so they do not miss any critical areas. Additionally, many agencies employ standardized administrative checklists during the review process to ensure completed investigations cover all pertinent areas, with added emphasis on making sure every area is thoroughly explored and addressed in sufficient detail.
Conduct Witness Canvassing
Law enforcement agencies involved in critical use of force incidents can help instill confidence and credibility in their investigations by practicing a concept known as witness canvassing. Appropriate canvassing requires UOF investigators to actively seek out witnesses beyond the scene, rather than simply interviewing those located on the scene or in the immediate area. Many significant witnesses who may not have been interviewed otherwise have been identified through the development of leads, and by broadening traditional witness interview location efforts.
Extending the traditional witness canvass area not only results in the gathering of enhanced information for your agency’s investigation, it also provides the community with the added confidence that your department is actively seeking the truth through the inclusion of a diverse population of witnesses who may have information to add regarding the incident.
Record All Interviews
The recording of sworn and civilian interviews is an outstanding practice helping to ensure investigative credibility. The practice of recording helps to eliminate claims or questions of misstatements, misperceptions, or misinterpretations on the part of an investigator and results in increased investigative accuracy. It has also been a very useful investigative practice to record individuals claiming not to have seen or heard anything in relation to a critical incident; especially if their motivation and account of the incident should change in the future.
Although cost prohibitive and impractical for all investigations, departments should also give consideration to transcribing the statements of officers and witnesses where circumstances dictate the necessity to do so. Additionally, transcribed statements can effectively reduce the ambiguity, for investigators and adjudicators, commonly associated with complex incidents or those involving many personnel and witnesses.
Separation and Bifurcation
The practice of immediately separating personnel involved in (and sometimes those witnessing) critical use of force incidents has proven itself very beneficial for agencies employing the procedure. The immediate separation of involved employees prevents the public perception that law enforcement officers are participating in collusion and getting their stories straight before they are formally interviewed or complete their written statements about their involvement in significant incidents.
Although personnel separation generally requires the additional duty of supervisory monitoring of the employee for the procedure to be effective, agencies employing the practice have commented upon the added measure of credibility added to the investigative process, and the greater acceptance of their investigations by the public.
For agencies having the responsibility of conducting criminal investigations of possible criminal culpability on the part of their personnel involved in critical UOF incidents, the practice of investigative bifurcation is an absolute non-negotiable to ensure an organization’s credibility. Bifurcation, or the process of separating an investigation into two parts in the case of a criminal investigation clean (noncompelled statements and evidence) and dirty (compelled statements and derivative evidence), ensures that a critical UOF investigation remains viable and uncontaminated for potential prosecution and is generally a requirement of the District or State’s Attorney offices, and preserves the department’s overall ability to continually investigate itself.
There are a variety of ways to successfully achieve bifurcation; however, the best starting point is to contact your District or State’s Attorney to ascertain what protocols are most acceptable to that office.
Develop Sound Review Policy
Videos capturing critical uses of force are becoming more and more common. Today’s in-car video systems, personal cell phones, business and residential surveillance systems and media cameras often find themselves in advantageous positions, enabling them to depict numerous police-related activities such as shootings and other confrontations with violent suspects. Communities and advocacy groups are well aware of this fact and maintain a direct interest in how videos are used in investigations.
One of the current hot-button issues for departments conducting UOF investigations across the country is whether to show the video, depicting their personnel’s actions in a critical UOF, to the involved officers prior to their formal interviews or the completion of their written statements.
Many communities, advocacy groups, civilian oversight commissions and civil juries take great issue with law enforcement agencies showing offi cers videos prior to them having to account for their actions in a critical incident. To these groups, showing a video to an officer prior to taking his/her formal statement absolutely taints his/her individual recall of the incident and can definitely call into question the credibility of an agency’s entire investigation.
Fair and Credible
Another issue closely associated with the presentation of videos during critical investigations is fairness. Civilian oversight groups, juries, community members and legal counsel for law enforcement agencies have long contended the showing of videos only to officers during critical UOF investigations can be blatantly unfair, prejudiced and highly problematic.
Many have strongly contended that for an investigation to be considered credible, fair and unbiased, everyone interviewed regarding the incident should have equal access to the video prior to providing their statements; not just law enforcement personnel.
Whatever video policy an agency decides to enact, it is important organizations understand potential impacts to the overall credibility of an investigation should the video be shown to personnel prior to obtaining a formal statement, or where the video is shown only to law enforcement personnel. Moreover, it is important to consult with law enforcement counsel and civil defense attorneys to obtain a thorough understanding of how a department’s policy may impact criminal and civil judges and juries.
The average law enforcement agency typically spends hundreds to thousands of personnel hours investigating a critical UOF incident in an effort to ascertain what happened. With every investigation there is much at stake: an officer’s reputation from the management perspective, an investigator’s reputation from an adjudicator’s standpoint, and an agency’s reputation from the community’s point of view.
Law enforcement agencies have an affirmative duty to do more than just complete the UOF investigation; they need to employ specific practices throughout the investigative process to preserve the credibility of their investigation, the process and the agency itself.
Kris Pitcher is a 24-year veteran of the Los Angeles Police Department and has been the commanding officer of its Force Investigation Division for five years. He has authored several articles on OIS investigations and provided lectures on OIS policy, procedures and protocols to law enforcement organizations across the country and internationally.
Published in Law and Order, Jul 2011
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