The motivation and behavior of police and prosecutors

 

We can document all too frequently that the police and prosecutors arrest and convict innocent people.  Therefore, it is imperative for us to understand why they do this.  Certainly, part of the explanation is related to Murphy's Law: If something can go wrong, it will go wrong.  Mistakes are inevitable.  That is one of the key reasons we have defense attorneys.   Well-intentioned people can come to the wrong conclusion about the guilt or innocence of a person.  However, it is clear that this accounts for only part of the reason that errors happen in the criminal justice system. 

 

Another force that helps to move the system toward error is the win-lose mentality that dominates the criminal justice system at all levels.  Crimes are committed and the system wants to find someone to arrest and convict.  If they fail to do this, pressure is placed upon them to produce and jobs can be lost or promotions delayed without someone being found guilty.  Therefore, pressure is a very powerful factor in the creation of error.  Also, once you have convinced yourself, and worse yet, convinced a jury, that someone is guilty, you are very reluctant to admit that a mistake has been made, hopefully an honest mistake.  The reasons for such reluctance are understandable ones.  If you admit a mistake is made, it can be seen as your fault, and few of us are willing to readily admit mistakes.  Also, once you have convicted one person for a crime it makes it much harder to convict someone else for the same crime.  Therefore, the police and prosecutors tend to hang-tough and refuse to acknowledge mistakes.  So, we have an appeals process to try to force the truth out, but, this process is still dependent to a significant degree on the evidence gathered AGAINST our client.  I would contend that the greatest force for error is that gathering process.

 

THE EVIDENCE GATHERING PROCESS

 

If you look at famous cases, if you examine the more common and less famous cases, the conclusion is the same.  The process of gathering evidence is a very biased one.  Certainly the bias is in favor of the police and prosecutor, as they tend to look for evidence to support their opinion of whom might be guilty.  Rarely do they approach the detection process without bias.  It would be very hard for them to do otherwise.  If you say to yourself: "Anyone could be the guilty party!"---then your scope of inquiry is infinite and you can never mount an investigation with infinite resources.  Therefore, it is inevitable that early on, as quickly as possible, you narrow your scope of inquiry.  And, that is where the trouble begins, because once you have done so, the tendency is that you will begin to interpret everything you see in terms of evidence in support of a guilty verdict.  The following helps us understand how this happens.

 

In 1973 David Rosenhan published a now-famous study that helps us better understand the behavior of police and prosecutors even though the study had nothing directly to do with either of these groups.  In his study he had eight people admitted to psychiatric hospitals by fabricating symptoms.  However, once they were inside the hospitals, they completely dropped their symptoms and related to everyone in a normal manner.  Despite this, the hospital staff continued to document symptomatic behavior in the fake patients, behavior which in another context would be seen as quite reasonable and ordinary (Rosenhan, D. (1973). On being sane in insane places. SCIENCE, 179, 250-258).

 

If someone begins to interpret everything you do and say in terms of your being "insane" or in terms of your being "guilty" of some crime, then this becomes a self-fulfilling prophecy.  Sure enough they will find ways to view even very benign behavior in horrific terms.  Please keep in mind that they are not doing this consciously, it is an unconscious process.  Yes, some police and prosecutors deliberately and consciously distort the facts so that they support their case.  However, it is important to realize that they frequently do this without even knowing that they are so doing.  That, indeed, is a very frightening reality of the criminal justice system.

 

Ronald Laing said:

 

"The range of what we think and do is limited by what we fail to notice.  And because we fail to notice that we fail to notice, there is little we can do to change; until we notice how failing to notice shapes our thoughts and deeds."

 

Read that statement over several times until you fully appreciate it because it is a very important perspective that you need to comprehend.  Part of what all parties in the criminal justice system---police, prosecutors, defense attorneys, and other support personnel---need to do is begin noticing things they are failing to notice.  One of the things they are failing to notice is how the truth often is set aside and fictions are accepted as fact.