(a) Prosecutors should promote agency and officer compliance with the law and with principles of sound policing, and should avoid undermining sound policing. Their efforts with respect to sound policing should include:
- (1) documenting and reporting to policing agencies and appropriate state and federal authorities officer conduct that they reasonably suspect to be inconsistent with sound policing;
- (2) declining to bring charges in appropriate cases in which officer conduct has been inconsistent with sound policing, and taking appropriate action if officer misconduct is discovered after charging;
- (3) ensuring that investigations and charging decisions concerning potentially criminal conduct by officers are thorough, timely, fair, and impartial;
- (4) collecting and disclosing evidence concerning officers that may be subject to discovery in criminal cases; and
- (5) educating officers about their legal obligations, and promoting sound policing in interactions with officers.
(b) Other attorneys, including those hired or appointed to represent criminal defendants, government attorneys who advise agencies or jurisdictions, and attorneys employed or appointed to represent jurisdictions, should promote agency and officer compliance with the law and with principles of sound policing, and avoid undermining sound policing.
Comment:
a. Role of prosecutors. Prosecutors serve as gatekeeper to the criminal-justice system, and they are among the most powerful actors in it. They act as officers of the court and as the public’s legal representative. Their responsibility is not just to see that convictions are obtained, but to see that justice is done, and, more broadly, that the public interest is served. This obligation extends beyond seeking appropriate criminal charges in individual cases. Prosecutors also have systemic responsibility for ensuring the integrity and soundness of the criminal process, including by promoting sound policing and by acting in accordance with these Principles when their work involves investigation or other policing activities.
Yet, some prosecutors are reluctant to take an active role in ensuring sound policing. They often fear alienating officers and agencies. Prosecutors work closely with officers in gathering and assessing evidence of criminal wrongdoing, and they depend on officers’ effort and cooperation. Strong, ongoing relationships between policing agencies and prosecutors’ offices often benefit the interests in justice, so it is understandable that prosecutors seek to avoid fraying those close ties. Many prosecutors run for office and worry that a majority of the public may not support sound policing. In addition, prosecutors sometimes view themselves as unable or unsuitable to promote sound policing because they do not directly supervise officers and have limited means of influencing officer and agency actions. Thus, despite their responsibility for promoting the public interest, prosecutors sometimes fail to encourage sound policing, and sometimes facilitate unsound policing, for example, by relying on potentially unreliable or untruthful police testimony or by allowing acts that reflect racial animus or expressions of racial animus by officers to go unreported.
In the face of these tensions, this Section highlights that prosecutors are responsible for carrying out and promoting sound policing in their everyday activities, and that they are capable of doing so consistent with ordinary principles that guide the prosecution function. For example, prosecutors are expected to act independently, impartially, and with balanced judgment in determining appropriate criminal charges. That requires fairly evaluating criminal complaints against police officers without bias or assumptions about officer truthfulness and integrity. Prosecutors are also responsible for improving public safety and the administration of criminal justice. To live up to this obligation, prosecutors appropriately may decline to bring criminal charges in cases in which an officer used excessive force to make an arrest or obtained a confession by unreliable and abusive methods, even if that confession would be admissible in court. Finally, prosecutors have a heightened duty of candor in fulfilling their professional functions. That duty obliges them to document, report, and maintain records of improper conduct by officers, including instances in which officers are less than truthful in their reports or testimony.
b. Promoting sound policing in exercising charging discretion. As Comment a suggests, it is critical that prosecutors zealously protect public safety and promote the public interest, including by bringing criminal charges against police officers when charges are warranted. Such charges may deter police misconduct, promote the rule of law, and vindicate the interests of victims of illegal acts. Prosecutors, however, have failed sometimes to fulfill their responsibility to evaluate such charges fairly, fully, impartially, and without bias or favor. Even when prosecutors seek to act impartially, some community members may distrust the independence of prosecutorial decisions, given close interactions between prosecutors and the police. To fulfill their obligation to promote sound policing, prosecutors should develop and adhere to policies and procedures for thorough, timely, fair, and impartial review of the lawfulness of police actions, and they should, when appropriate, bring charges in such cases. Prosecutors should avoid improper considerations and biases, and should seek to eliminate any formal or informal presumptions in favor of exonerating officers suspected or accused of misconduct. They also should avoid the appearance of impropriety in evaluating such cases by seeking outside assistance in evaluating cases in which close relationships between a prosecutors’ office and an agency make the appearance of impropriety difficult to avoid, among other measures. These obligations apply not only to high-profile cases or those involving fatalities, but also to more common misconduct, such as perjury, planting evidence, and nonfatal excessive force. See § 14.12 (Criminal Investigation of Officers).
Prosecutors have the same obligation to protect the public interest in determining when to decline charges against nonofficers. In some cases, prosecutors must decline charges based on officer misconduct because that misconduct taints evidence such that admissible evidence is insufficient to support conviction beyond a reasonable doubt. In addition, prosecutors are not obligated as a matter law or ethics to file or maintain all criminal charges that evidence might support. Under ordinary ethical principles governing prosecution, prosecutors are obliged to promote compliance by law-enforcement personnel with applicable legal rules, including those against improper bias. Even if a case is prosecutable, one appropriate consideration in determining whether to file, decline, or dismiss criminal charges is whether an officer acted improperly in investigating a crime, searching or questioning suspects and witnesses, or making an arrest. In exercising their discretion to determine charges, prosecutors may consider whether they, by declining or dismissing criminal charges, could help to encourage sound policing and therefore serve the public interest. To encourage sound policing in the future, officers and agencies should be informed when an officer’s misconduct contributes to a prosecutor’s decision to decline or dismiss a charge. Prosecutors should not enter into agreements to drop criminal charges in exchange for releasing a municipality or officer from civil liability in cases in which they reasonably suspect that officers have engaged in illegal acts, because doing so threatens to cover up and facilitate unsound policing.
c. Promoting sound policing within criminal cases. Many principles in this project, such as those that apply to evidence-gathering and witness-questioning, apply to prosecutors and their offices as well as to traditional policing agencies, and prosecutors should comply with these principles as applicable. Thus, prosecutors should ensure that testimony on behalf of the state is truthful and accurate, that those testifying are reliable, and that evidence is appropriately preserved and analyzed. Prosecutors also should adopt systemic practices that promote compliance with these principles by law-enforcement officers, for example, by maintaining and insisting that law-enforcement agencies maintain adequate systems for collecting, analyzing, documenting, retaining, and providing to prosecutors all evidence from criminal investigations and all information about police misconduct that could be discoverable in criminal cases. Then, prosecutors should fulfill their ethical and legal obligations to provide discoverable evidence to defendants.
d. Education and advice. To ensure that police comply with those rules and earn individual and community trust, officers should be familiar with legal rules. Although agencies and officers often are sophisticated about their legal obligations, prosecutors usually have greater familiarity with the intricacies of law because they work with these legal issues every day. Prosecutors therefore should provide ongoing assistance to agencies and officers in ensuring that officers know the relevant law. They can do this by providing all officers with adequate and up-to-date knowledge of their legal obligations, and assisting individual officers in specific cases. In addition, prosecutors, both individually and as an agency, should identify errors or gaps in officer knowledge that should be addressed through further training. Prosecutors should encourage individual officers to engage in sound policing and assist agencies in developing policies that promote sound policing. Finally, prosecutors may work in partnership with law-enforcement and community groups to identify and address priorities for arrest and prosecution that will enhance public safety in the community in a manner consistent with community values and the principles of sound policing.
e. Transparency. In adopting policies to fulfill the obligations identified in this Section, prosecutors should work to be clear and transparent to officers, agencies, and the public. By doing so, prosecutors facilitate their working relationships with policing agencies. Prosecutors should also encourage compliance with these Principles by providing notice to agencies and officers about the potential consequences of violating them. For example, some prosecutors’ offices fulfill their obligation to promote lawful and sound policing in part by maintaining lists of officers that they consider poor witnesses because they previously have engaged in misconduct. These lists serve to promote the integrity of criminal proceedings and discourage police misconduct. However, without fair and public guidelines about the kinds of conduct that justify inclusion in such a list and the process for inclusion, communities may not trust these determinations, and officers may worry that political influences could affect them. Transparency can help mitigate such concerns.
f. Documenting and reporting officer conduct. Through their ongoing interactions with police officers during criminal investigations and prosecutions, prosecutors are exposed to aspects of officer performance that no other actors see. Prosecutors have the opportunity to: observe how thoroughly and fairly officers investigate criminal activity; hear reports from witnesses and suspects of their interactions with officers, including the use of unnecessary force; and take statements from and prepare testimony by officers. This access gives prosecutors a special responsibility to document, track, and report to agencies and appropriate state and federal authorities instances of known, suspected, or reported misconduct, such as when officers demonstrate bias, make false statements, conduct improper searches and seizures, and fabricate evidence. Prosecutors’ offices should have mechanisms for encouraging, documenting, and following up on reports of improper conduct, including those that are revealed in court. Prosecutors also see and hear reports about exemplary officer performance, and they should document and track such conduct to encourage positive performance and allow it to be recognized and rewarded by agencies.
g. Discovery obligations and documentation of officer conduct. Prosecutors cannot fulfill their discovery obligations to criminal defendants unless they systematically document and track known false statements and other potentially discoverable misconduct by officers, including the failure of officers to collect, preserve, or turn over evidence valuable to the defense. They also should ensure that officers and agencies systematically provide to prosecutors all discoverable findings of misconduct made by the agency or any reviewing authority against officers involved in criminal cases.
h. Ongoing obligation. After an individual is charged, or even after a case is closed, prosecutors may receive information that indicates officer misconduct. Prosecutors have an ongoing obligation to take appropriate action under such circumstances, including by documenting and reporting newly discovered misconduct and dismissing charges or reconsidering closed cases to avoid the possibility of a wrongful conviction or miscarriage of justice. Prosecutors should ensure that they have systems in place, such as those adopted by conviction-integrity units, to handle such matters. Although finality remains an important value in the criminal-justice system, a demonstrated willingness to reconsider closed cases can facilitate justice, promote trust in government, and provide information about agency and officer practices to promote better compliance with these principles and the law.
i. Defense attorneys. Counsel for defendants, including indigent defendants, often have opportunities to promote sound policing. For instance, defense attorneys investigate cases to determine whether evidence supports the prosecution and to identify potential avenues for impeaching prosecution witnesses. In speaking to their clients, and in carrying out these investigations, attorneys frequently learn of officer misconduct. When doing so is consistent with their legal and ethical obligations to their clients, defense attorneys should consider reporting such misconduct to agencies and appropriate state and federal authorities.
Because defense counsel bring motions to suppress evidence based on illegal conduct by officers, they also often are present when judges find that officers have made false statements or otherwise have acted illegally. When prosecutors’ offices and agencies do not adequately track these findings, public defenders and other defense attorneys may promote sound policing by doing so. Efforts by defense counsel to collect or report incidents of improper conduct by officers should not be taken as an excuse for other actors, including prosecutors, to avoid their responsibility to promote sound policing. Legislatures should consider the additional burden that promoting sound policing may place on defense attorneys in allocating resources for their work.
j. Other government attorneys. Attorneys representing jurisdictions in noncriminal matters concerning the police or policing agencies also have opportunities to promote sound policing and to refrain from encouraging unsound policing, consistent with their legal and ethical obligations. Attorneys employed by or appointed by governments often give advice to public officials and agencies; they review agency policies; they manage civil liability risks for jurisdictions; they assist in drafting legislation; and they represent the government and its officers in defending suits about police conduct. In carrying out these duties, they should recognize that the interests of the jurisdiction and the public trust in the police usually will best be promoted by transparency and by reducing unsound policing and its resulting harms. For this reason, government attorneys should prioritize prompt and candid communication with the public in advising agencies in the aftermath of critical incidents. They should avoid standing in the way of agency policies that go beyond legal standards to promote sound policing. In their role representing officers and jurisdictions in litigation, consistent with their ethical obligations, they should encourage public disclosure of settlements and judgments involving police conduct and generally should not enter nondisclosure agreements that deny agencies or the public information about the harms and financial costs of unsound policing. In assessing litigation strategies in civil suits, such as when and whether to raise legal defenses, when to appeal adverse decisions, and when and whether to settle, government attorneys should consider as part of their calculus the implications of their choices on sound policing and public trust in the police. In addition, government attorneys that defend civil suits are often best positioned to aid agencies in learning from litigation. Thus, they should share with agencies information unearthed during civil suits with police agencies and officials and help agencies identify policies and personnel, training, and management practices that contribute to unsound policing and need reform.
Reporters’ Notes
Prosecutors have a distinctive obligation to promote sound policing. First, prosecutors have a general obligation to reform and improve the criminal-justice system. As the American Bar Association’s Standards on the Prosecution Function indicate, “The prosecutor is not merely a case-processor but also a problem-solver responsible for considering broad goals of the criminal justice system. The prosecutor should seek to reform and improve the administration of criminal justice.” Am. Bar Ass’n, Crim. Just. Standards, Prosecution Function, Standard 3‑1.2(f). As these Principles suggest, promoting sound policing is central to improving both public safety and public trust in government and the criminal system. Second, prosecutors have more specific obligations to ensure that officers comply with the law. See, e.g., id., Standard 3‑3.2 (“The prosecutor should promote compliance by law enforcement personnel with applicable legal rules, including rules against improper bias.”).
Still, prosecutors have a special and complicated relationship to policing agencies and officers that often makes fulfilling these obligations challenging. On the one hand, prosecutors properly cultivate and value close working relationships with the police. In investigating, charging, and trying criminal cases, they work alongside officers, and depend on their hard work, expertise, testimony, and judgment. See, e.g., Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 758 (2003) (describing the relationship between federal agents and prosecutors as a “bilateral monopoly”); Kate Levine, Who Shouldn’t Prosecute Police Officers, 101 Iowa L. Rev. 1447, 1465-1470 (2016). Prosecutors also cannot fulfill their own ethical and legal obligations, for example, their obligation not to present untruthful testimony or their responsibility to disclose favorable information to criminal defendants, without the cooperation of officers. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”).
Yet, on the other hand, prosecutors also are responsible for assessing police conduct to determine whether criminal charges against officers should be brought. See Am. Bar Ass’n, Crim. Just. Standards, Prosecution Function, Standard 3‑1.2 (“The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety . . . by pursuing appropriate criminal charges.”). They are also responsible for evaluating officers’ credibility as witnesses, see id., Standard 3‑1.4 (“The prosecutor should not . . . offer evidence[] that the prosecutor does not reasonably believe to be true . . .”), and disclosing impeachment evidence about them to defendants, see, e.g., Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) (finding that impeachment evidence against a testifying officer included judicial orders taken because of his legal violations and personnel records documenting his lies and misconduct); United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence . . . as well as exculpatory evidence, falls within the Brady rule.”); Giglio v. United States, 405 U.S. 150, 154-155 (1972).
This multifaceted and complex relationship creates difficulties for prosecutors, who must both work closely with officers and yet maintain a critical, independent perspective on their conduct. Perhaps because of tensions inherent in this relationship, prosecutors often have failed to promote sound and lawful policing. Despite past failures, however, prosecutors can and should promote sound and lawful policing. Indeed, as a result of their close work with officers, they are uniquely situated to do so.
Accordingly, these Principles encourage prosecutors to take a more active role in monitoring and influencing police conduct while executing their duties. Although existing data are insufficient to say how widespread police misconduct is today, scholarly and journalistic sources indicate that it is common enough that proactive efforts to detect and deter it are not merely warranted, but necessary to fully discharge the prosecutor’s duty to ensure that policing is carried out lawfully. See, e.g., Phillip M. Stinson, The Henry A. Wallace Police Crime Database, policecrime.bgsu.edu (cataloging 1,718 instances of official misconduct, 321 instances of evidence destroying or tampering, and 834 instances of false reports or statements resulting in the arrest of sworn officers between 2005 and 2016); N.Y. C.L. Union, NYPD Police Misconduct Database, https://www.nyclu.org/en/campaigns/nypd-misconduct-database (reflecting 11,661 substantiated citizen complaints of abuse of authority by NYPD officers and 4,415 substantiated complaints of excessive force between 2000 and 2021).
In the interests of justice, prosecutors should implement systems to review officer conduct for illegal behavior early in the case-handling process. Thus, the widespread practice of building the early stages of a criminal prosecution and extending early plea offers based on a complaining officer’s account of an incident may be inconsistent with the prosecutor’s role to promote sound policing and not encourage or permit unsound policing. More careful case-intake and screening procedures that allow review and evaluation of police investigations already are common in the federal system. Such procedures also will allow prosecutors to study their own practices, including whether they contribute to bias. Finally, it will allow prosecutors to disclose publicly more information about their work to the public. See American Bar Association and NAACP Legal Defense Fund Joint Statement on Elimination Bias in the Criminal Justice System (June 2015).
As the Comments note, prosecutors are not required by law or ethics to file or maintain every criminal charge that evidence might support, and they may use their discretion in a manner that promotes sound policing. According to the American Bar Association’s Criminal Justice Standards for the Prosecution Function, even when a case meets the minimum requirements for filing and maintaining charges because “the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice,” Am. Bar Ass’n, Crim. Just. Standards, Prosecution Function, Standard 3‑4.3, prosecutors still may exercise discretion not to initiate or to dismiss a criminal charge. id., Standard 3‑4.4. One of the factors that prosecutors “may properly consider” in exercising that discretion is “any improper conduct by law enforcement.” id., Standard 3‑4.4(a)(viii). Thus, as the black letter and Comments of this Section suggest, prosecutors may decline charges because of officer misconduct not only in cases in which misconduct taints evidence and makes the charge unprosecutable, but also when charges are viable, if doing so serves the public interest.
When prosecutors decline or dismiss charges at least in part because of improper conduct by officers, they should communicate their reasons to the officers involved and to their agencies. Otherwise, such declinations are unlikely to discourage improper officer conduct in the future, and repeated improper conduct may lead to repeated dismissals. Cf. U.S. Department of Justice Investigation into the Baltimore City Police Department 34-35 (noting that the Baltimore City Police Department persisted in a pattern or practice of making arrests unsupported by probable cause despite a high number of declinations by the Baltimore City State’s Attorney’s Office). In addition, prosecutors can help promote public trust by explaining decisions not to prosecute officers involved in critical incidents, especially fatal shootings. See American Bar Association and NAACP Legal Defense Fund Joint Statement on Elimination Bias in the Criminal Justice System (June 2015).
Prosecutors often train officers in the law, and they have an ethical obligation to do so. See Am. Bar Ass’n, Crim. Just. Standards, Prosecution Function, Standard 3‑3.2(c) (“The prosecutor’s office should keep law enforcement personnel informed of relevant legal and legal ethics issues and developments as they relate to prosecution matters”). This type of legal training is essential to ensure that officers adequately understand, for example, discovery rules, and their obligation to collect, retain, and turn over to prosecutors evidence favorable to criminal defendants. Cf. Mary H. Caballero & Constantin Severe, Independent Police Review, Police Review: Portland Police Bureau Compliance with Brady v. Maryland (2017) (documenting officers’ limited understanding of Brady). They also model behavior and set informal expectations for officer conduct. In addition, because prosecutors are obliged to consider the public’s interest in charging decisions, prosecutors appropriately consider whether police misconduct may be discouraged by declining some criminal cases. See Am. Bar Ass’n, Crim. Just. Standards, Prosecutor Function, Standard 3‑4.4 (noting prosecutors are not obliged to file all criminal charges that evidence supports, and indicating that prosecutors may properly consider in exercising charging discretion “any improper conduct by law enforcement”). Such acts not only may make police misconduct less likely; they may signal to the public a commitment to sound policing that can help build community trust.
Prosecutors also have both the opportunity and obligation to see that officer misconduct is tracked properly and remedied. They are the only actors who observe routinely how officer conduct affects litigation outcomes. They view misconduct that otherwise is invisible, such as false statements in police reports, misconduct during interrogations, and false testimony by officers. As repeat players in court, they and their officers frequently are aware of judicial findings that officers have lied or acted improperly. Only by reporting and tracking what they know can they promote sound policing, fulfill their obligation to disclose evidence that can be used to impeach the credibility of officers who testify in criminal trials, and ensure the integrity of criminal prosecutions. Indeed, unless prosecutors track and collect evidence of police misconduct, including lying and racial animus, they cannot comply with their obligation to disclose impeachment material about officers or assist agencies in avoiding using officers whose credibility is compromised. See Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743 (2015).
Prosecutors, and not officers, are responsible for deciding whether to institute formal criminal proceedings. See Am. Bar Ass’n, Crim. Just. Standards, Prosecutor Function, Standard 2‑4.2. They should carry out this task with the thoroughness and care that depriving people of their reputation and liberty warrants. Prosecutors sometimes fail to scrutinize an officer’s version of a search, an arrest, or an interview before charging, leaving such scrutiny to defense counsel later in the case. Such an approach to charging is inconsistent with the prosecutor’s obligation to seek truth, prioritize the interests of justice, and ensure that only those cases that a prosecutor reasonably believes are supported by the evidence are brought. When screening cases, prosecutors should look for indications of police misconduct, including suggestions that officers used excessive force, fabricated evidence, or made arrests for improper reasons. Because misconduct often will not be evident in a police officer’s written report, prosecutors should consider whether in-person interviews are appropriate to fulfill their responsibility to make charging decisions in the interests of justice.
In their role evaluating the appropriateness of criminal charges against officers involved in critical incidents, prosecutors also have unique power to ensure that the interests of victims of police misconduct are vindicated, and that justice is served when officers break the law. Investigations and prosecutions of alleged officer misconduct are considered further in § 14.12.
Defense attorneys also frequently see evidence of illegal or unsound conduct by officers. Some offices have collected and maintained records of police misconduct to help their cases. For example, New York City’s Legal Aid Society maintains a database that tracks police misconduct in New York City as part of its Cop Accountability Project. See Legal Aid Soc’y, Cop Accountability Project, https://legalaidnyc.org/programs-projects-units/the-cop-accountability-project/. This is especially useful when local officials neglect their responsibility to mandate transparency about police practices and conduct. In addition, defense attorneys should consider whether they may serve the cause of justice and the interests of their clients by reporting alleged incidents and patterns of misconduct to agencies or appropriate state officials. See Am. Bar Ass’n, Crim. Just. Standards, Defense Function, Standard 4‑1.2.
Although defense attorneys frequently are overburdened, the community of criminal-defense attorneys may have opportunities to contribute to sound policing that do not further stretch existing resources. For example, defense offices sometimes provide training in the law, in the use and testing of forensic evidence, or in avoiding improper bias that might reasonably be open to officers as well as attorneys. See id., Standard 4‑1.12.
In considering their responsibilities for promoting sound policing, government attorneys should consider that public trust in policing is essential to police effectiveness and legitimacy, and that the advice and representation they offer policing agencies can contribute to or undermine that public trust. When deciding how best to defend municipalities sued in civil litigation, government attorneys should keep in mind that they are representing not only the interests of government officials but also the interests of the taxpayers. Litigation decisions should be made with an eye not only toward preserving the public fisc, but also advancing sound policing and public trust. In addition, in their role as advisers and risk managers, government attorneys should be attentive to the information they receive about incidents and patterns of misconduct that may justify reform. As Joanna Schwartz has said, “lawsuits are, in essence, unsolicited audits by deeply dissatisfied customers . . . . Hearing from a deeply dissatisfied, highly motivated customer may be an unpleasant experience, but it can be illuminating.” Joanna C. Schwartz, Introspection through Litigation, 90 Notre Dame L. Rev. 1057-1058 (2015). Municipal and county attorneys should help agencies use lawsuits to ensure that agencies mitigate problems that harm individuals and undermine public trust. Although this Section focuses on those attorneys who represent the government, some of the same concerns adhere to attorneys who are appointed or hired by insurance companies to represent individual officers or municipalities in civil lawsuits.