More officers than ever are being charged with crimes – but is it simply a witch hunt based on a false premise?

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Force Investigations; The Dangerous Predisposition

More officers than ever in the history of our profession are being charged with crimes related to the performance of their daily lawful duties as sworn officers. 

In the past three years while conducting investigative reviews and analyses on criminal, civil and arbitration cases, I have noticed a pattern of systemic failures in the process. 

In lecturing and training officers across the nation in this field it was important to identify the difference between a failure and a mistake.

A mistake is an oversight or a misunderstanding of the information available and how to gather that information effectively, often caused by lack of experience. 

A failure is attributable to the organization, where experienced, tenured investigators operate solely within their knowledge base and do not necessarily look beyond their own role purpose and function.  

Recently, an officer used deadly force in what was distinctly a deadly force encounter, where the officer and others were clearly in mortal danger.  The subsequent investigation was conducted by a tenured team of talented and knowledgeable investigators, who achieved a good grasp of what had occurred. 

However, at the onset of the investigative process, investigators looked at the most salient or obvious evidence in the case and formed a presumptive opinion that the case was a “no brainer,” the assumption being the Officer’s use of force was certainly justified.  

Salience Bias, also known as Anchoring Bias, is a serious obstacle regarding these investigations, affecting an investigator’s ability to see outside of their own understanding of the case.

Salience Bias is one of many challenging issues facing investigators in their pursuit of a thorough investigation, this simply stated is the reliance on the most apparent or obvious evidence.

When we see what has occurred in the incident, we tend to quickly form an opinion about why the incident occurred, based on our own experiences and training.

We then seek information, at a subconscious level, to support our conclusions. Early conclusions are developed from investigative predispositions that exist in all of us and they happen without our being aware of it and, those conclusions are problematic because they often limit the search for objective complete and objective data. 

These are not malicious assumptions or conclusions; they are common for any skilled investigator that brings experience to the table.  

All of us rely on our preconceptions to some extent to establish a baseline in the investigative process.  However, being aware that those predispositions are in play and taking steps to mitigate them is imperative.  

Additionally, in these officer-involved critical incidents, we tend to view the investigative information from the perspective most familiar to us, based on our personal experiences. 

This is not the perspective of the involved officer in the moment. The involved officer may have been basing decisions on a very different set of experiences and different interpretations of applicable training.  

It is the investigator’s role to gather as much data as possible, to formulate a complete picture of what the officer was faced with.

Only then can the investigator determine why the officer made the decisions he or she did, considering that the officer’s account may not align with all the evidence gathered after the fact.  This complete data will then help decision makers to understand why the decisions were meaningful to the officer in the moment, effectively taking it a step beyond what happened.   

This process includes an understanding of the evidence being gathered, and the human limitations that affect the involved officer’s ability to operate in these often complex and time-compressed scenarios. 

Once charges are filed, whether or not they are just or well-founded, the accusations must now be answered.

What will a jury see and more importantly what will the jury believe? How far will the prosecution go to prove an invalid point?  How far will defense go to disprove a valid point? Have all the necessary data been gathered in the initial investigation and who will explain this data to the jury? 

In the case that prompted this article, the officer went to prison.  

Not based on a jury or a judge’s decision but on a negotiated plea deal and calculating the inherent risks of going to trial. The Officer, charged with murder, was convicted of a lesser charge based on the “deal.”

It was the officer’s decision to accept the deal.   

The Officer entered a plea, not because he actually committed a crime, but based solely on the risk of going to trial in this unstable climate.   

This was the incident that was initially viewed by investigators as the “no brainer.” On its surface, it appeared to be justified. 

However, a decision maker at a high-level chose to charge the officer based on what the video showed and would stop at nothing to prove his case.  The investigation was significantly lacking because it was based on the initial interpretation of the assigned investigators’ predispositions.

Important data was not gathered and lost forever. Evidence was mishandled. The officer was charged for apparent political expediency.  

What happened was clear; an Officer made decisions based on his/her perceptions in the moment. However, no effort was given to discovering the performance issues at play.

The investigators understood the officer’s actions based on their experience, but they failed to learn why the officer did what the officer did.

Crucial evidence was disregarded or lost based on the investigators’ predispositions or the investigators’ understanding of the event. Evidence that was overlooked or deemed unnecessary had to be later identified and verified as accurate. 

Once an initial investigation is complete and time passes, we only have what we have, we cannot recreate certain aspects of the incident, including resolving potential memory issues. 

The outcome may have been different had a more thorough investigation occurred. However, no investigator thought this officer would be charged based on the “simple truths” that were plainly obvious to this experienced investigative team.

 To quote Oscar Wilde: “The truth is rarely pure and never simple.” 

There is no such thing as a “simple truth” in any investigation today. 

As the Officer’s trial date approached, carefully considering the a few tragic police encounters affecting the climate of juries nationwide, as well as the political pressures facing the charging entity, a deal was made, and the officer went to prison.

Even though the salient evidence pointed toward a justified use of force during the initial investigation, much more could have and should have been done in the investigative process. 

Important measurements, valuable video evidence, and perspective issues were overlooked or left unconsidered, and are now impossible to recover based simply on the evanescent nature of the evidence or information. 

Having spent some time in this field, investigating and reviewing high-profile cases, I have discovered extensive issues and inconsistencies in the investigative process, none of which are malicious or deliberate.   These flaws could have been avoided by developing an understanding of three areas that often do not get the necessary attention.

  • Human performance and limitations. Developing a working knowledge of human factors that apply directly to law enforcement is paramount.  Being familiar with the associated terms and the science is not enough, being familiar with the fact that these phenomena exist is not enough, a deeper understanding is required.

    The ability to apply these theories and concepts to both the investigative process and the review of these cases is required.

  • Investigative blind spots. Be aware of the global process, it will give meaning to your own role, purpose and function.  Be aware of how your predispositions affect what you believe happened in the incident.  Blind spots are not easy to identify, they are present in most investigations.  Blind spots are not malicious or purposefully ignored; identify and navigate them cautiously.
  • Interviews and gathering data. We are looking for the why, understanding how the initial investigation can impact the entire process, we need to focus on gathering information from the officers involved.

    The involved officer is the only person who can tell us why they made the decisions they made. We know what happened, tell us why it happened that way.  This is a different way to approach a homicide investigation; an investigation of an officer-involved critical incident begins where most homicide investigations end and should be addressed as an entirely different situation. 

Remember, an officer’s account of a critical incident will always lack perfect accuracy because the officer has limitations that prevent the Officer from knowing what we know after the fact.   

An understanding of human factors and limitations will have a considerable impact on interpreting an officer’s truth, from their perspective, and how that compares to the extrinsic facts we know.  An Officer will only be capable of accounting for those things perceived in the moment or that learned after the fact.    

Identify your strengths as an investigator, be aware of the blind-spots, bring your experiences to the table and then navigate them carefully. 

There is no such thing as a “no brainer” investigative outcome in today’s climate.  Define accuracy, consistency, and completeness, and understand how those definitions fit into the complex puzzle of force investigations.

Authored by: Sgt. Jamie Borden (Ret.) – Critical Incident Review L.L.C. – Criticalincidentreview.com

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