Police officers often seem like they have better memories than the average person. They can remember colors of suspect vehicles, names and telephone numbers of witnesses, and multiple fact patterns relating to criminal investigations. Do you want to know the secret about how they supposedly keep their memories so sharp? They write things down. That's it. Most cops don't have any better memory than you or I. They simply refer to their reports whenever they need to remember something. In fact, if you ever want to have a good laugh, pick up any trial or omnibus hearing transcript with a testifying officer and you'll see numerous references to the line "May I refer to my report?" or "I'm going to need to refer to my report."
Police officers are allowed, in court, to refer to their notes and police reports to refresh their memory. Most officers don't actually do this but instead simply read from their reports. So why is this a problem? Because, as a defense attorney, I not only want to know what the officer wrote in his type-written report, but I want to know how he was able to recall the events he wrote in his type-written report.
Most officers take very few notes in the field (i.e. by the roadside when they are investigating suspected DUI drivers). Most officers wait to write their notes until the end of their shift or at least until the complete end of the investigation. There is a fundamental problem with this because no one has a memory accurate enough to recall every detail of what took place during a given conversation or Field Sobriety Test given a few hours or days before. For example, the Walk and Turn test has nine steps down and nine steps back. For each step, there are a number of variables. Did the driver step on-line? Did the driver touch heel to toe? Was there a gap between the heel and toe, and if so, how much of a gap? Did the driver raise his right arm? Did the driver raise his left arm? If the driver raised his/her arms, was the arm raised greater than six inches? Did the driver stop or hesitate in walking? Did the driver keep his/her head down to look at his/her feet? Did the driver count out-loud? Did the driver count correctly? Did the driver appear to lose his/her balance? For each step taken during the Walk and Turn test, there are at least ten to twelve variables for each step. That's 180 to 216 specific observations that need to be remembered and written down. The trouble is that officers don't write them down immediately, but they instead write down only a handful of things that would support their decision to arrest. An officer will testify "The suspect raised his arms for balance." Question of the officer: "Which arm did my client supposedly raise for balance?" The officer will reply: "Let me refer to my report. [Pause] I don't recall." Question of the officer: "Well, did my client raise his arms more than six inches?" The officer will reply: "Let me refer to my report. [Pause] I don't recall."
Another common problem with modern police reports is that they are cut-and-pasted using word processors, or they are fill-in-the-blank multiple-choice reports. Most officers know all too well that they have to include the following observations in every DUI report: (1) the driver smelled of alcohol, (2) the driver had bloodshot and glassy eyes, and (3) driver couldn't easily present his/her registration or licensing information as quickly as the officer would have liked. To take care of this practical requirement, most officers will have a paragraph at the very beginning of their report where they summarily detail seeing all of these things in the first minute of contacting the driver. I have actually seen cut-and-pasted reports personally which detail these observations. The dead giveaway was that the reports contained direct references to people from other investigations who were no way involved in the investigation the report was supposed to be detailing.
The fill-in-the-blank multiple-choice reports are commonly used to give the appearance that the officer knows what he or she is doing. For example, a fill-in-the-blank multiple-choice report will have boxes for the officer to check indicating that he made a number of observations or asked a series of questions in order to thoroughly document his investigation. These forms are almost always filled out after the entire investigation is concluded. To be clear, these forms don't have irrelevant information (i.e. what's the driver's favorite ice cream). Every question is critical in a properly detailed DUI investigation and there may be 50-75 observations or questions. I'm willing to bet that any competent officer can recall a large number of them. But is he able to recall every single one two hours after the investigation? Not a chance. So, imagine the scenario with an officer sitting and filling out a mandatory form two hours after he was supposed to look and make a particular observation or recall whether he asked a specific question and received a detailed answer. With a fraction of a second and the stroke of pen, the officer can simply check a box that says, for example, he thoroughly asked the driver about his/her medical history-- regardless of whether the officer actually asked these important questions.
Don't be intimidated by cops who claim their memory is better than it really is. The honest truth is that most officers have no better memory than the average person. In fact, most drivers who are accused of DUI have a very vivid memory of the events because it was the first and only time they've ever been arrested and accused of a crime. By comparison, the DUI investigation and arrest was only one of many for the average officer on a twelve-hour shift looking to quickly fill out his cut-and-pasted or fill-in-the-blank multiple-choice report and head home.
There are no comments for this post. Be the first and Add your Comment below.
Leave a Comment