The killing of unarmed teen Trayvon Martin by a neighborhood watch captain and the purported lackadaisical response to that killing by the Sanford, Florida Police Department riveted the country and sparked an important conversation regarding the breakdown of the relationship between the police and the communities that they serve. Regardless of one’s opinion on what happened the night that Martin was killed, it is undeniable that this entire case has jeopardized the already fragile relationship between law enforcement and not only the Sanford community, but communities across the nation. This Essay considers the effect of the dysfunctional relationship between the police and the communities that they serve on the perceived reliability of the evidence that police provide in our criminal justice system on a daily basis. The evidence rules, which are particularly crucial in criminal cases, should reflect the reality of public perception of law enforcement. I propose that communities call for and legislatures implement a moratorium on the admissibility of certain types of law enforcement testimony in communities with strong levels of distrust of the police. And, in turn, when confidence in the credibility of law enforcement is restored, which is the ultimate goal of this Essay, the evidentiary regime can and should then reflect a new reality and take the opposite approach. The rules of evidence should incorporate a community policing approach to the admissibility of police testimony.
My approach is novel, as criminal law and evidence scholars have not considered the importance of the community in assessing evidentiary reliability. But we should rely on the community to adjudge police credibility and the evidentiary value of their testimony. This approach is superior to relying solely on prosecutors, judges, and the police themselves. My proposal will help to restore the public’s trust in law enforcement, which is at an all-time, critical low.
My initial comment on this article is that it should not be dismissed -- especially not by those who are particularly prosecution-minded. My first reaction to the thesis after reading the abstract was one of incredulity. Excluding all law enforcement testimony from certain cases? My initial impression was that the article would seem credible only to those who already hold these strong views, and would seem completely incredible to all others. As I read the article, however, I found a great deal of interesting discussion on community perspectives of law enforcement and specific strategies that law enforcement agencies can take to repair broken relationships with an untrusting public. The problem of distrust and the solutions the author presents in Part II make this article worth reading, even by those who disagree with the author's ultimate proposal. The perspective is important, and the problem is real; it is of social importance to reformers and of strategic importance to prosecutors. The article does have its problems, which I discuss after the jump, but I think that Part II is certainly worth reading.
However,
I was let down by Carodine's strategy of arguing for the exclusion of law enforcement testimony, her justifications for this solution, and her failure to respond to extremely obvious replies to this admittedly extreme approach.
First, the strategy. An initial, big problem with Carodine's proposal to make police testimony inadmissible is that she hints that the reason for this rule is to provide incentives for police to create effective community outreach programs. This implies that the rule is only necessary until such programs are created, and early in the article Carodine hints that this rule is necessary until the community trusts the police. In Part III where she discusses this proposal, however, Carodine never discusses how the end-date for this rule is to be calculated. She presents no metric or device by which community trust in police can be measured, which undermines her argument that the evidentiary solution is only necessary as an incentive to create truly effective programs. This failure to provide an endpoint or any metric of measuring community trust undermines Carodine's earlier implications that the evidentiary solution is a means to some ascertainable end and that the solution need only be temporary.
Second, the justifications. In Part I, Carodine lays foundation for her argument in Part III, noting evidence law's basis on "reliability." Carodine is correct in noting the importance of reliability as an underlying motivator of the rules, but her ultimate police testimony proposal does not follow from the examples she cites. For instance, Carodine notes that reliability underlies Rule 803(4) of the Federal Rules of Evidence, which provides that statements by a patient to a doctor for purposes of medical diagnosis or treatment may be admissible, despite being hearsay. Patient statements to doctors are more likely to be reliable, since patients probably want the best treatment or diagnosis for their conditions. It does not follow from this that reliability is at all a necessary condition for evidence, however. The basis of 803(4) testimony is that the statement is so reliable that, despite normally being inadmissible hearsay, it is an exception to that rule. Similar criticism applies to references to expert evidence -- while advanced opinions would normally be inadmissible under 701, expert opinions, if properly qualified, may be admitted. Reliability seems to serve mainly as a means to admit evidence that would otherwise be excluded -- not as a necessary condition for evidence. While Carodine has other interesting arguments that I find more credible, such as evidence law's purpose of preserving social relationships, she should still concede that reliability is not traditionally a necessary condition for evidence to be admissible.
Third, despite Carodine's extreme solution, she does virtually nothing to raise or respond to potential criticisms of her approach. Her only apparent attempt is a question-begging reply to an unrealistically ignorant interloper who contends that without false police testimony, the guilty will not be convicted. Carodine's dismissal of this hypothetical opponent overlooks several very strong objections to her proposal. First, the complete exclusion of police testimony will result in the exclusion of true, as well as false, police testimony. While it might not be as objectionable to have the guilty go free because of excluded, false testimony, it is not as appealing to see the guilty go free as a result of excluded, true testimony. This outcome may be agreeable to those who think the war on drugs and felon gun possession crimes are a miserable failure that only result in racially disparate prosecutions and incarceration. A controversial argument? Yes. An impossible argument? No. But whatever the case, Carodine needs to make that argument explicit. Second, Carodine's evidentiary proposal is politically unlikely, if not impossible. While extreme proposals can be an interesting addition to the conversation, in this paper the proposal distracts from Carodine's practical discussion of police engagement with the community. Carodine must at least acknowledge the political difficulties facing her evidence proposals (which would be a nice way of re-emphasizing the importance and feasibility of her Part II proposals).
Carodine's larger point is important and it is unfortunate that it is overshadowed by these substantial shortcomings. None of them are fatal to the larger argument, however, and if Carodine were able to accommodate these objections the overall argument would be clearer, stronger, and persuasive to a much larger audience.
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