As an officer, your report is the first and most important opportunity you have to record events as you experienced them and explain why you took the actions you did. When you’ve used force on a subject, the information in your report becomes crucial to ensuring your success in court.
Lexipol co-founder and attorney Bruce Praet has represented officers and agencies in court for more than 30 years. He’s identified several essential elements to include, as well as best practices to follow, to create more effective police use of force reports that stand up to scrutiny in court. Following are some of the tips Praet shared in a recent webinar.
Start your report with a quick introduction to give the reader an idea of what the report is about. The basis of the report should be covered within the first 30 seconds of reading – don’t start with supplemental reports! Your report should then go on to answer the who, what, where, when, why questions. Write in plain English and explain what you mean, making the report as simple as possible to understand. Remember that jurors don’t think like cops.
The narrative in a use of force report should begin prior to the actual use of force event. What were the circumstances that led to using force? Provide information to explain the situation prior to the TASER device deployment or shots fired. Although the use of force may have been justified, courts are now questioning whether the officer incited the situation. In County of Los Angeles vs. Mendez, the Supreme Court shot down the “provocation rule” (the idea that reasonable force can be deemed unreasonable if an officer intentionally or recklessly provokes a violent confrontation), but you must still be careful not to violate someone’s rights leading up to the use of force event. Make sure your report shows why you believed force was necessary and what steps, if any, you took to avoid force (if that was an option).
Although there is no need to write a novel, ensure that you are providing enough detail for the jury (and your memory). It may be months or even years after writing the report when you are summoned to court. The report serves as a second memory, so include all necessary information to be able to explain the incident regardless of how much time has passed. Don’t forget to include documentation of compliance with agency policy and/or the law. If you are required to take certain action such as domestic violence admonishment, be sure to include your compliance in the report. If it’s not in the report, the jury can assume it didn’t happen.
Lastly, quickly gather the suspect’s profile. Before the dust settles or the information makes it through the grapevine, send a detective to talk with friends and family about the suspect’s activities surrounding the incident. Graham v. Connor holds the importance of the “totality of circumstances.” Incorporate information about the prior criminal history of the plaintiff, including gang affiliations and prior arrests.
The report serves as a second memory, so include all necessary information to be able to explain the incident regardless of how much time has passed.
In addition to written information, incorporate multimedia evidence. Video evidence is great supplementary evidence to provide to the jury. As ruled in Chavez vs. Martinez, even if a suspect invokes their right to an attorney, you can still ask questions and record the interview. Although these recordings cannot be used in your report, they can prove valuable when dealing with the civil case later.
You should also record all witness interviews. Many witnesses’ initial statements do not match their testimony in court, so video evidence is a way to confirm what they were doing at the time of the incident. Beware of wind, traffic and other noise disturbances, such as your radio, that may make it difficult to hear when replaying the video.
If your agency’s policy allows for it, review your body cam and other video footage before writing your report to ensure you are including accurate statements and information. During use of force incidents, sensory perception is distorted; reviewing video footage allows officers to account for the totality of the circumstances. Although you should account for the video, be careful not to conform to it. In Scott vs. Harris, the late Justice Scalia opined if an officer has video footage that substantially differs from the plaintiff’s testimony, but corroborates what the officer has stated, the court should disregard the plaintiff’s version of events and use the video as sound evidence. Video footage can easily make or break a case.
Besides recording video, you should also take photographs. Render medical aid first, then photograph the clean, injured areas of the suspect, yourself, and any others involved, such as your K9. Take photos of the non-injured areas of the suspect to ensure they don’t claim further injuries later. Document their emotional state following the incident; a photograph of a smiling suspect or one flashing a gang sign is important evidence in court.
Take pride in your writing and proofread your report when it’s complete. Check for spelling and grammatical errors and an easy-to-follow narrative. Your report should conclude with a direct request to the district attorney, whether it be requesting criminal charges or an additional investigation or simply asking they use the report for informational purposes. A supervisor should also review the report, limiting comments to whether the officer’s actions were in line with policy. If a compliance issue needs to be addressed, the supervisor should create a new paper trail documenting necessary training or discipline – this should not be included in the report.
In addition to reviewing the report after writing it, you should thoroughly review it prior to your time in court. The purpose of your report is to document the elements of the crime committed. Remember that use of force standards are based on reasonableness. The Supreme Court has stated it is not the amount of force necessary to overcome resistance, but the amount that appears reasonably necessary. Be prepared to provide further information and answer questions during cross-examination.
To learn more about police reports that stand up in court, watch the on-demand webinar with Bruce Praet, It’s Your Story: Tips for Writing More Effective Police Reports.