Anyone who has been following the news over the past few months understands that serious instances of police misconduct have occurred (and continue to occur) throughout the country. The manner in which the police have handled George Floyd, Rayshard Brooks, and the protesters in Washington DC and Portland, Oregon, to name some of the more obvious incidents, have all raised serious questions concerning encounters between law enforcement representatives and ordinary citizens. There is talk in Congress and the state legislatures about reforms ranging from defunding the police to clamping down on the influence of police unions on the disciplinary process to making that process more transparent.
The New Jersey Senate Committee on Law and Public Safety held hearings on police reform in June. One of the bills that was debated was S2656, which would make public police internal affairs and disciplinary records. Numerous civil rights and other organizations are supporting the bill.
The bill would remove the Open Public Records Act exception to police internal affairs records and grant the public access to complaints, allegations and charges filed against individual police officers; transcripts and exhibits from disciplinary trials and hearings; dispositions of proceedings; final written opinions and/or memoranda on the disposition and the discipline ultimately imposed, including the agency’s factual findings and analysis of the conduct of the officer(s) that was/were the subject(s) of the hearing; internal affairs records; and video recordings of the incidents underlying the complaint(s), charges, or internal affairs investigation.
This could potentially solve a serious problem for defense attorneys who must cross-examine police officers at trial. Clearly, if an officer/witness has misconduct in their background, the defense attorney will want to know about it prior to cross-examination and prepare so that it can be integrated into their case in a meaningful way. Currently, defense counsel must move for an order prior to trial for turnover of the officer’s file. The file is turned over to the trial judge who reviews it privately and determines whether it contains anything that the defense attorney should see. In my experience, the trial judge typically ends up ruling that there is nothing in the file that concerns my case. But this results in the trial judge having a hand in structuring my case for me, which I have always though it inappropriate. And since I don’t really know what the file contains, I have no way of asserting a meaningful challenge to the trial judge’s ruling. The bill would change this since it would make the disciplinary process more transparent by making available the documents and other materials identified above.
Not surprisingly, the police unions are objecting vigorously to this. They have always shielded their own from charges of misconduct and wrongdoing. There are not too many people more pro-union than me. Unions have a long history in this country, and have done much to secure decent salaries, good benefits and safe working conditions for their members. But the functions of a union do not include protecting its members from charges of conduct that does not conform to procedure, or is illegal.
A bill such as S2656 is a recognition of the fact that good police practices must be grounded in the kind of transparency that generates community trust in law enforcement. The bill makes good sense, especially at this time, and the Legislature should pass it and send it to the Governor who will hopefully sign it.
Criminal defense attorney James S. Friedman, Esq., is based in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in all state and federal courts throughout New Jersey and New York City.