Updated: Apr 15
Clayton T. Robertson (RobertsonLitigation.com) (Criminal Defense Attorney)
One of the best webinars I've viewed in the recent past was by an attorney who called police reports "guilt reports." The reason is clear to those of us who have practiced criminal defense for any meaningful length of time: Police officers are writing reports with the goal of justifying their conclusions and showing your guilt. After all, it's their professional reputations at stake.
In doing so, they often ignore other avenues of investigation, other possible witnesses, and other physical evidence. In fact, it is a truism -- which is often ignored -- that law enforcement has an equal and opposite duty to not only investigate guilt, but to investigate innocence. But how often do you think that is actually done, particularly after an arrest has been made?
As is often the case, law enforcement forms conclusions early on after their arrival at the scene. These conclusions might be skewed by who they happened to make contact with first (i.e., "the squeaky wheel gets the oil"), by limitations on the amount of time they can spend at the scene, or by other biases or prejudices. These biases or prejudices include but are not limited to their experiences with the same persons after prior incidents (which may or may not be similar to the current incident), by their experiences with others in situations they feel are the same or similar to your circumstance (while ignoring facts in your case that should demonstrate otherwise), their implicit biases regarding certain groups of individuals (which unfortunately we've seen time and time again in the media and elsewhere), and by other "cognitive biases."
One such cognitive bias is called "confirmation bias." According to one source, this is the tendency of people to favor information that confirms their existing beliefs or hypotheses. Specifically, it occurs when a person gives more weight to evidence that confirms those conclusions and undervalues evidence that could disprove them.
Confirmation bias affects all of us, but it is particularly problematic in officers (or others) who need to keep an open mind when they perform their duties. Unfortunately, law enforcement reports reflect this "guilt-finding" process of attempting to justify those initial conclusions, even though if officers kept an open mind throughout their investigation, other evidence would disprove or undermine those conclusions. But, frankly, they've already made up their minds. This is one reason, among many, why experienced criminal defense practitioners advise clients to stay silent. Let your attorney sort out the details and speak with law enforcement on your behalf. (Another form of bias applicable to law enforcement is called "institutional bias," which I will address in a separate blog along with other biases.)
Another negative effect of "guilt reports" is they anchor future discussions about the incident. Prosecutors stubbornly rely upon the alleged "facts" in these police reports by not only conveying the details to judges (such as at bail review hearings), but also in their negotiations with defense counsel. I can't begin to tell you the number of times a prosecutor has said, "But that's not in the police report."
Finally, this is all a reason why your attorney should not rely upon police reports for what happened. They need to take the time to interview you in detail and, if necessary, conduct their own investigation. If your attorney is ignoring your calls or not spending enough time with you to get "your side of the story," they are ignoring the one person who can give them the facts they need to best evaluate your case.