This project aims to tackle some of the hardest questions, where courts, legislatures, and police are most in need of guidance, and where technology, experience and knowledge quickly are rendering current approaches obsolete.There are many sides to this issue but it’s worth pointing to what people often see as the two sides. One side is about safety and security of people and their families, their children, and their communities. The other side is about civil liberty, and people’s autonomy, and first amendment freedoms. I don’t think anyone is against either of those. It’s not like people who care about liberties think they don’t want to be safe or the people who want to be safe and secure, don’t care about their liberties. The trick, I think, is to figure out how to put all of that in the mix. -Barry Friedman, Project Reporter

Proposed Table of Contents:

PART I – Overarching Principles of Policing

The first Chapter of Policing will provide overarching principles that apply to the Chapters that follow. The first three Sections define the scope of the volume (i.e., to which governmental functions the Principles apply), specify the goals of policing, and identify core values that ought to guide agencies in carrying out their responsibilities. Then, the first Chapter will turn to some central themes that resonate throughout the Principles: the importance of developing written policies on all aspects of police investigations, and of making these policies available to the public; the need for better data on various aspects of policing, as well as some of the challenges that data collection poses both for policing agencies and for the public; and the role that training ought to play in ensuring that policing officials act in accordance with agency policies.

PART II – Principles of Search and Seizure

Part II provides some cross-cutting principles, including when and whether warrants are necessary; the means by which warrants can be obtained; and the protections essential for various sorts of searches, seizures, or surveillance. The next chapters draw a distinction, important to all that follows, between traditional, investigative policing—which by definition is suspicion-based—and newer programmatic, regulatory, or deterrent approaches, which tend to be suspicionless (including roadblocks, and much of the surveillance driven by modern technology, such as CCTV, license-plate readers, and bulk data collection). Additionally, this Part will address some of the key issues surrounding technology and policing—both policing agency use of various surveillance technologies, and government access to private data stored on technological devices, social-networking sites, and cloud servers.

This Part will also include a focus on police use of databases. Law-enforcement agencies maintain databases that contain information about identified or identifiable individuals in a number of domains and also often seek to access the databases of other public and private entities. The principles on databases will likely include the types of data law enforcement may retain; the duration of such retention; measures designed to keep data secure; measures designed to assure the accuracy of data, including procedures for permitting subjects to correct misinformation; when, and with what restrictions, law enforcement may access its own databases; when law enforcement may access the databases of other government agencies and private entities, including the role of subpoenas and other mechanisms for obtaining recorded information; when data may be used for adjudicatory purposes; disclosure of law-enforcement data to other agencies and entities; and accountability mechanisms, including notice to the subjects of databases and periodic reporting.

PART III – Use of Force

Use of Force will be addressed in Part III. This includes the Objectives of the Use of Force, Duty to Minimize the Use of Force, De-escalation and Force Avoidance, Proportional Use of Force, and Instructions and Warnings.

PART IV – Principles of Evidence Gathering

Part IV will begin by setting out general goals of criminal investigations, including accuracy in evidence gathering, fairness during the process of evidence gathering, and principles for documentation and report writing during investigations. The first Chapter also will discuss professional and ethical obligations during evidence gathering including by taking a risk-based approach to investigation integrity. Then, in separate Chapters, this Part will address forensic evidence, eyewitness-identification evidence, confessions, and the use of informants.

A Chapter on forensic evidence will establish the importance of policy and training on the accurate and well-documented collection and preservation and retention of crime-scene evidence. Principles will set out obligations of law enforcement and crime-lab personnel to document their analysis of that crime-scene evidence and their legal and ethical obligations to clearly and accurately convey their findings to law enforcement, prosecutors, and the defense, including by conveying the documentation of their analysis, the findings, their methods, and the statistical significance of their findings, together with applicable error rates. The principles regarding eyewitness identifications will describe the need to adopt in policy clear written procedures that reflect scientific evidence concerning human vision and memory. Principles will describe: the need for standardized eyewitness-identification procedures that provide easily understood instructions to eyewitnesses; procedures for selecting and presenting photographs to eyewitnesses; procedures for presenting images “blind” or “blinded” so that the administrator cannot even unintentionally influence the outcome; procedures for recording the level of confidence of the eyewitness; and when available, procedures for electronically recording the procedures.

The principles on confession evidence will include police interviews and interrogations. Principles will set out the need to electronically record interviews and custodial interrogations, as well as the need for written policies to guide the use of recording equipment and the retention and disclosure of such recordings. Principles will guide the use of interrogation and interview techniques and constitutional and professional obligations to avoid coercion and contamination of resulting statements. Principles will separately treat interviews and interrogations of juveniles and mentally ill and disabled persons.

The final Chapter, on informant evidence, will cover the need for written policies regulating: the recruitment of such informants; the screening, qualifications, and eligibility of informants; the documentation of cooperation, payment, and leniency arrangements with informants; the documentation and electronic recording of interviews with informants; as well as the systematic tracking of the use of informants across cases.

Each Chapter will set out a framework for pretrial judicial review of the evidence, the use of experts, jury instructions at trial, and postconviction review.

PART V – Remedies and Accountability

This Part will include principles that ensure that police officers are accountable within the policing agencies that employ them. The principles will describe the role that legislatures and agencies can play in articulating expectations for police conduct. They will elaborate upon the training necessary to enable officers to pursue their mission and to adhere to the rules and law that govern their conduct. They will describe the importance of reinforcing those rules with agency supervisory practices, performance measures, and disciplinary processes. And they will emphasize the role that collecting data on police conduct and practices, complaints, civil suits and settlements, and other sources of information can play in internal accountability.

It will also provide principles designed to facilitate political governance of policing. These principles will highlight the significance of departmental and municipal structure in this regard, and will describe external mechanisms for evaluating policing policy and practices such as civilian review and auditing mechanisms. They will discourage practices that undermine political governance of the police, such as providing resources to policing agencies outside traditional paths of political control. They will also state principles for collecting, aggregating, and making accessible, information and data about policing policy and conduct.

The final Chapter will state principles concerning the legal mechanisms for ensuring individual officer and agency accountability. Although legal accountability for police misconduct covers several major areas of law, including some addressed in other ALI projects, the principles here are intended to ensure that legal responses to police misconduct provide adequate remedies for harms caused by police conduct to individuals, that they encourage officers and agencies to comply with the law and work to avoid future violations, and that they are fair to officers and agencies. This Chapter will include discussion of the following remedies: the exclusionary rule, civil liability for damages, civil liability for equitable relief, criminal prosecution, and decertification.

The Reporters

Barry Friedman
Reporter, Policing Principles
Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at NYU Law. He is one of the country’s leading authorities on constitutional law, policing, criminal procedure, and the federal courts. He is the author of the critically-acclaimed The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), and the forthcoming book on policing and the Constitution, Unwarranted: Policing without Permission(February 2017). He is the founding director of NYU Law’s Policing Project.

Brandon L. Garrett
Associate Reporter, Policing Principles
Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law  at Duke Law School. His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law. Garrett’s recent research includes studies of DNA exonerations and organizational prosecutions. In addition to numerous articles published in leading law journals, he is the author of five books, including: The Death Penalty: Concepts and Insights (West Academic, 2018) (with Lee Kovarsky); and End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Harvard University Press, 2017).

Rachel A. Harmon
Associate Reporter, Policing Principles
Rachel Harmon is the F.D.G Ribble Professor of Law at the University of Virginia School of Law. She teaches in the areas of criminal law, criminal procedure and civil rights, and her scholarship focuses on policing and its regulation. From 1998 to 2006, Harmon served as a prosecutor at the U.S. Department of Justice. After a brief stint at the U.S. Attorney’s Office in the Eastern District of Virginia, Harmon worked in the Civil Rights Division, Criminal Section, prosecuting hate crimes and official misconduct cases, many of which involved excessive force or sexual abuse by police officers.

Tracey L. Meares
Associate Reporter, Policing Principles
Tracey L. Meares is the Walton Hale Hamilton Professor of Law at Yale Law School. She has worked extensively with the federal government, having served on the Committee on Law and Justice, a National Research Council Standing Committee of the National Academy of Sciences from 2004–2011. Additionally, she has served on two National Research Council Review Committees: one to review research on police policy and practices, which produced the book, Fairness and Effectiveness in Policing: The Evidence and another to review the National Institute of Justice, Strengthening the National Institute of Justice. In November of 2010, she was named by Attorney General Eric Holder to sit on the Department of Justice’s newly-created Science Advisory Board; and in December 2014, President Obama named her as a member of his Task Force on 21st Century Policing.

Maria Ponomarenko
Associate Reporter, Policing Principles
Maria Ponomarenko is an Associate Professor at the University of Minnesota Law School. She teaches and writes in the areas administrative law, constitutional law, and criminal procedure. Her work focuses in particular on government agencies—such as policing agencies or other local regulatory agencies—that operate in domains that fall beyond the reach of traditional administrative law and scholarship. In addition to her work at the law school, Ponomarenko is co-founder and counsel at the Policing Project, a non-profit based at the NYU School of Law that works in tandem with policing agencies and community groups to promote more effective police governance.

Christopher Slobogin
Associate Reporter, Policing Principles
Christopher Slobogin is the Milton R. Underwood Chair in Law; Director, Criminal Justice Program; and Affiliate Professor of Psychiatry at Vanderbilt Law School. He has authored more than 100 articles, books and chapters on topics relating to criminal law and procedure, mental health law and evidence, and is one of the five most cited criminal law and procedure professors in the country. Particularly influential has been his work on the Fourth Amendment and technology and his writing on mental disability and criminal law.

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