Keeping a database of police and prosecutor misconduct can change the system by holding those accountable and preventing further wrongdoing, said Barry C. Scheck, co-founder and co-director of the Innocence Project at the 61st annual Henry J. Miller Distinguished Lecture at Georgia State University College of Law on Thursday, April 5.
In addition to traditional misconduct that goes into police personnel files, police should be keeping data that predictive analytics tells us are risk factors for the likelihood of using excessive force or other misconduct such as divorce, substance abuse, mental health problems, credit scores, racists posts on social media, etc.
“It turns out that police officers that do a number of domestic violence cases in a row, or suicides or are involved in a series of high-stress encounters for a period of time, that is a risk factor that you should be taking into account in how police are managed,” said Scheck, also a professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University.
Prosecutors should also be building internal databases that tracks findings of false statements, civil suit judgements, suspicious patterns of behavior, accounts of police lying to prosecutors and other cases of misconduct.
“All of this can be put into a database that will give you a pretty good idea of what officers are not always telling the truth and should be watched and frankly it should be available to the prosecutors, to the defense lawyer and to the judges for instances when they get on the witness stand.
“Big data should be able to end testifying,” Scheck said.
However, prosecutors nor police are consistently keeping such records and are unlikely to do so without pressure from defense.
“The function of the defense is to make sure that people in the criminal justice system, be in prosecutors or police, play by the rules,” he said.
And although defense function is underfunded and not nearly as robust as it should be, new technology and big data now allows defenders the ability to gather this information.
“The defense is the part of the system that has every incentive to do this and get it right, and they should be funded to do so in a way that hasn’t happened,” he said.
Aggressive, smart and comprehensive defense databases can force prosecutors and police to keep databases of police bad acts, which can lead to mass dismissals, Fourth Amendment suppression and holding prosecutors accountable for Brady violations, Scheck said.
“That’s something that was discovered just by word on the street and by people keeping informal track of things. Imagine what we can do if we actually have a real database that follows all the high-tech methods,” he said.
In New York City, the Legal Aid Society’s “Cop Accountability Project” utilizes a crowd-sourcing of data gathering to hold law enforcement accountable. There have been numerous cases of officers caught on camera lying about what happened or planting evidence.
“If these kinds of videos can go into a database, you can have a lot of trouble testifying anywhere else. If officers lie about all kinds of things but there are findings in court and transcripts that go around that is databased and if the prosecutors and defense lawyers and judges have access, that changes everything,” Scheck said.
The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reform of the criminal justice system to prevent future injustices.
Scheck also will participate on a panel at the Georgia State University Law Review Symposium, “From the Crime Scene to the Courtroom: The Future of Forensic Science Reform,” on Friday, April 6. For more information and to register, visit law.gsu.edu/2018 -symposium.