Reports: Best Defense Against Erroneous Claims
In an era where many television shows and movies have portrayed law enforcement officers bending the rules to make an arrest, well-written, accurate and detailed reports are the best defense against such inaccurate claims. It begins with the report.
Remember Who You Are Talking To
Write reports so that the average person can comprehend them. Police have jargon that only cops understand. They use terms like signals, codes, perimeters, exiting vehicles, and activating equipment. When preparing reports, it’s important to remember that you’re not writing for other officers. The ultimate legal judge of a defendant’s guilt or innocence could be a 75-year-old farmer with a middle school education who does not know or understand police vernacular. The police officer’s job is to convince the juror that they followed all police procedures, conducted a thorough investigation, and have arrested the right person.
At trial, the police officer needs to be a teacher to gain the “students’” trust through their words and actions. The jurors should feel like the officer will sit down with them and tell a story.
More is Better
Supervisors have advised that officers include minimal information in reports. The rationale is that the less contained in a report, the less amount of information the defense attorney has with which to cross-examine or discredit the officer.
Trying to outsmart or outmaneuver a defense attorney never works. First, the officer does not always know the defense strategy. Trying to craft a report or prepare to answer a question to cut off a theory based on what the officer thinks will be the defense attorney’s direction often backfires.
Second, giving answers for the first time on the witness stand about items not contained in the report can open the door for more cross-examination questions and theories the defense can explore.
Third, not writing a complete and detailed report can make the officer look unprepared on the stand. It will appear that the officer did not conduct a thorough investigation and is making up answers to cover themselves.
Think about the number of calls an officer receives during a shift, over a week, a month, or a year. And think about how many of them are similar calls, with similar fact patterns. If a case does not proceed to trial for months or even years, it will be more challenging to remember the details of the call and the investigation.
On the witness stand, officers will be asked what they did during the investigation, who was present, what information witnesses told them, why they performed specific actions or why they did not. When an officer is consistently responding to questions with “I don’t know” or “I don’t remember,” because the report was not detailed enough to refresh their memory, the jury will be questioning not only the officer’s credibility but also whether they conducted a thorough investigation.
All the defense attorney needs to do is convince one juror that there is reasonable doubt about their client’s guilt for a verdict of not guilty or a hung jury for lack of a unanimous verdict.
When this becomes a consistent issue with officers, not only does successful prosecution of cases become greatly hampered, but judges lose trust in officers and are more likely to suppress evidence pretrial when an officer’s actions are questioned.
The more information in a report, the more the officer will be able to refresh their memory in preparation for court, and the more thorough and knowledgeable they will appear to the jury.
Many Resources
Several people have written articles and papers regarding best practices for writing reports. A retired New York City police sergeant, Lou Savelli, has authored several articles, books and pocket guides for law enforcement. One article, “Writing Effective Police Reports” (April 5, 2018, copblue.com), gives excellent instruction for writing thorough and detailed reports that can withstand intense scrutiny.
Jean Reynolds, PH.D., manages a website dedicated to police report writing (yourpolicewrite.com). She has written several books and published articles for the FBI Law Enforcement Bulletin.
One article, “Focus on Report Writing – Old Habits Can Hold Officers Back” (July 9, 2019, leb.fbi.gov), discusses the importance of shaking old ways of writing reports and focusing on changing times and evolving attitudes. The crux of these articles and others is to take report writing seriously.
Details Matter
Reports are used for various things, including initiating an investigation, criminal, civil and family court proceedings, and statistics-tracking for grant resources.
You want to make sure the report accurately reflects the investigation and you as an officer. Take your time and do it right – document everything. Get detailed information about what happened, who did and said what, both from witnesses and other officers. Make sure you have as much contact information as possible from witnesses. If they are transient, try to get their current information, and who else may reach them when needed.
Don’t assume statements or actions are caught on body-worn cameras. Other factors can influence the ability to see and hear, such as traffic, other conversations, wind, the rustling of papers, distance from the camera and the camera’s location.
Be specific in the report. Use quotes and describe a person’s actions (balled their fists, hands were shaking, had bloodshot eyes and slurred speech) rather than using conclusory statements (took an aggressive stance, appeared nervous or was impaired).
Put the elements of the crime in the citation and report. It will make answering questions about how the person’s actions fit the charged offense. Before you submit the report, read, re-read, and read it again. Check for typos and misspellings, that all information is contained, and that the report makes sense logically. If necessary, submit a supplement sooner than later to include anything forgotten from the first report.
In Summary
Remember the audience. Tell a story in chronological order, stating all the facts in everyday language. Adding as much detail as possible serves multiple purposes, including refreshing the officer’s memory and lessening the feeling the officer is making up new facts on the stand that is not included in the report. It shows the officer conducted a thorough and complete investigation and ultimately reduced the vulnerable areas of defense cross-examination. If officers can follow these simple steps, the result – the officer’s testimony on the stand and the conviction, should reflect the amount of time, attention and work that was done on the front end.
Kimberly Baird has been the First Assistant Commonwealth’s Attorney for Fayette County since 2016. She earned her law degree from the University of Kentucky College of Law in 1996 and has been an Assistant Commonwealth's Attorney since then. She is also a member of the office’s Special Victim’s Unit, which prosecutes crimes committed against some of Lexington’s most sensitive and vulnerable victims.
