What's wrong with complaint investigations? Dealing with difference differently in complaints against police

Criminal Justice Ethics

Volumn 15, Issue 1, 1996, Pages 36-55

  Goldsmith, Andrew J ^a  

^a MONASH UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79959718848     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1996.9992005     Document Type: Article

References (105)

1. BENNETT & FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM 179 (1981).
2. Sarat & Grossman Access to Justice and the Limits of Law 3 LAW & POL'Y Q. 125, 137 (1991).
3. This theme is behind the collection of essays in COMPLAINTS AGAINST THE POLICE: THE TREND TO EXTERNAL REVIEW (A.J. Goldsmith ed. 1991) [hereinafter cited as COMPLAINTS].
4. FEDERATION OF COMMUNITY LEGAL CENTRES (VICTORIA), REPORT INTO MISTREATMENT BY POLICE 1991-92 (1992).
5. Complaints, supra note 3
6. M. MAGUIRE & C. CORBETT, A STUDY OF THE POLICE COMPLAINTS SYSTEM 59 (1991).
7. T. LANDAU, PUBLIC COMPLAINTS AGAINST THE POLICE: A VIEW FROM COMPLAINANTS 77 (1994).
8. relation to the situation in Toronto,
9. Martin, Organizing for Change: A Community Law Response to Police Misconduct, 4 HASTINGS WOMEN'S L.J. 131 (1993)
10. McMahon, Police Accountability: The Situation of Complaints in Toronto, 12 CONTEMPORARY CRISES 301 (1988)
11. Australia, there has been ongoing criticism of police accountability mechanisms in respect of their responsiveness to indigenous peoples.
12. REPORT OF THE ROYAL [AUSTRALIAN] COMMISSION OF INQUIRY INTO ABORIGINAL DEATHS IN CUSTODY (1991).
13. While it can be argued that this distinction is artificial, in that a complaint can lead to a criminal prosecution, it is not a meaningless distinction in the way in which police forces and civilian review agencies institutionalize the investigation and processing of complaints. The typical organizational separation of 'internal investigation' from other areas of investigation in police departments, and the concern of review agencies at least initially to handle all citizens' complaints recognizes the fact that most complaints will not generate or justify criminal proceedings.
14. Terrill, Complaints Against the Police in England, 31 AM. J. COMP. L. 599, 620 (1983).
15. A note on terminology is necessary because of the breadth of my argument. I shall use both external oversight and civilian review in this article. External oversight is used to refer to external review mechanisms outside the U.S., where the term civilian review is less familiar and generally not used. The latter term tends to have a specific meaning in the U.S., referring to civilian oversight mechanisms. I suggest that the question I raise has implications beyond as well as within the U.S.
16. In Australia, these groups include working class youth, the homeless, and indigenous persons.
17. The question of police discipline falls uneasily between these distinctions. This is due to the enormous range of forms that discipline can tak+e. In some cases, an informal apology can suffice whereas in other cases, formal disciplinary proceedings may occur, much along the lines of court proceedings.
18. A. Giddens, THE CONSEQUENCES OF MODERNITY 83 (1990).
19. Id. at 88.
20. Robert Reiner has argued in the United Kingdom context that he 'Golden Age' of policing by consent was in the 1950s.
21. R. Reiner, THE POLITICS OF THE POLICE (1985)
22. A. Giddens, supra note 14, at 91.
23. Lasley, The Impact of the Rodney King Incident on Citizen ttitudes Toward Police, 3 POLICING & SOC'Y 245 (1994)
24. A. Giddens, supra note 14, at 176.
25. R. Herzfeld, THE SOCIAL PRODUCTION OF INDIFFERENCE: XPLORING THE SYMBOLIC ROOTS OF WESTERN BUREAUCRACY 7 (1992).
26. A. Giddens, supra note 14, at 39.
27. C. Taylor, MULTICULTURALISM: EXAMINING THE POLITICS F RECOGNITION 35 (1994).
28. A. Yeatman, POSTMODERN REVISIONINGS OF THE POLITICAL 7 (1994).
29. Id. at 31.
30. Chesterton, The Twelve Men, quoted in R. JACK & D. JACK, MORAL VISION AND PROFESSIONAL DECISIONS: THE CHANGING VALUES OF WOMEN AND MEN LAWYERS 168 (1990).
31. Manning, The Social Reality and Social Organization of Natural Decision-making, 43 WASH. & LEE L. REV. 1291, 1293-94 (1986).
32. M. Johnson, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS 8 (1993).
33. F. machovec, INTERVIEW AND INTERROGATION: A SCIENTIFIC APPROACH (1989).
34. M. Mcconville, A. SANDERS & R. LENG, THE CASE FOR THE PROSECUTION: POLICE, SUSPECTS AND THE CONSTRUCTION OF CRIMINALITY (1991)
35. R. Ericson & P. Baranek, THE ORDERING OF JUSTICE (1982).
36. Ericson and Shearing, The Scientification of Police Work, in THE KNOWLEDGE SOCIETY (G. Bohme & N. Stehr eds. 1986).
37. Machovec, supra note 30, at viii.
38. Id. at 17.
39. F. Inbau, J. Reid & J. Buckley, CRIMINAL INTERROGATION AND CONFESSIONS (3rd ed. 1986) [herinafter cited as INBAU].
40. Eglin, Resolving Reality Disjunctures on Telegraph Avenue: A Study of Practical Reasoning, 4 CANADIAN J. Soc. 359, 369 (1979).
41. INBAU, supra note 35, at 327.
42. Some complainants do exhibit psychiatric symptoms, of course.
43. Freckelton, Queulent Paranoia and the Vexatious Complainant, 11 INT'L J.L. & PSYCHIATRY 127 (1988).
44. M. Maguire,C. Corbett, supra note 6.
45. The group of even greater concern is those who feel unable to complain. For the reasons why some citizens fail to complain.
46. Goldsmith, External Review and Self-Regulation: Police Accountability and the Dialectic of Complaints Procedures in COMPLAINTS, supra note 3, 20-21.
47. W. Bennett & M. Feldman, supra note 1.
48. Id. at 62
49. Id. at 174-75.
50. B. Jackson, LAW, FACT AND NARRATIVE COHERENCE (1988).
51. M. Johnson, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS (1993).
52. B. Jackson, supra note 45.
53. S. Hester & P. Eglin, A SOCIOLOGY OF CRIME 138-39 (1992).
54. M. McConville, A. Sanders & R. Leng, supra note 31, at 76.
55. Id. at 79.
56. Credibility is explored further later in this paper. However, it ought be noted that the term relative plausibility is used deliberately here. Absolute plausibility of police accounts may not occur in many instances, but a police account may be sufficiently plausible in many cases in some respects at least to present the investigator with the compelling option that the complaint cannot be substantiated. In such cases, it might be argued, there is sufficient plausibility from a police officer's perspective in as much as no further action will be warranted, whereas (as this paper argues) a complainant is likely to feel empty-handed as well as disbelieved.
57. Manning, supra note 27, at 1298.
58. M. McConville, A. Sanders & R. Leng, supra note 31, at 76.
59. Id. at 79.
60. Manning, supra note 27, at 1298.
61. M. McConville, A. Sanders & R. Leng, supra note 31.
62. R. Ericson & P. Baranek, supra note 31.
63. Zimmerman, Tasks and Troubles: The Practical Bases of Work Activities in a Public Assistance Organization in EXPLORATIONS IN SOCIOLOGY AND COUNSELLING 256 (D. Hansen ed. 1969).
64. W. Bennett & M. Feldman, supra note 1.
65. D. Binder & P. Bergman, FACT INVESTIGATION: FROM HYPOTHESIS TO PROOF (1984).
66. Eglin, supra note 36.
67. Darrough, When Versions Collide: Police and the Dialectics of Accountability, 7 Urban Life 379 (1978).
68. D. Smith, TEXTS, FACTS AND FEMININITY (1990).
69. D. Binder & P. Bergman, supra note 59, at 135.
70. Darrough, supra note 61.
71. Eglin, supra note 36.
72. D. Smith, supra note 62.
73. This term was coined by ethnomethodologist Harvey Sacks.
74. Eglin, supra note 36, at 373.
75. Police critics of complaint procedures often raise questions about the motives of complainants where they are facing criminal charges arising from the same incident. In turn, one hears allegations by some complainants that they were only charged criminally after indicating to police that they intended to lodge a complaint.
76. W. BENNETT & M. FELDMAN, supra note 1, at 167-68.
77. Maguire, Complaints Against the Police: The British Experience, in COMPLAINTS, supra note 3, at 177, 186.
78. Corbett, Complaints Against the Police: The New Procedure for Informal Resolution, 2 POLICING & SOC'Y 47 (1991).
79. REPORT OF THE [NEW SOUTH WALES,] JOINT COMMITTEE ON THE OFFICE OF OMBUDSMAN-INQUIRY UPON THE ROLE OF THE OFFICE OF THE OMBUDSMAN IN INVESTIGATING COMPLAINTS AGAINST POLICE (1992) [hereinafter cited as INQUIRY].
80. INQUIRY, supra note 72, at 14.
81. Id. at 82.
82. Id. at 142.
83. Id. at 142-43.
84. Id. at 75.
85. THE POLITICS OF INFORMAL JUSTICE, (R. Abel ed. 1983)
86. H. Goldstein, POLICING A FREE SOCIETY 160 (1977).
87. M. Maguire & C. Corbett, supra note 5, at 196.
88. Clare Lewis's account of the Toronto scheme. Lewis, Police Complaints in Metropolitan Toronto: Perspectives of the Public Complaints Commissioner, in COMPLAINTS, supra note 3.
89. But note the apparent failures of communication revealed by Landau's study. Landau, supra note 7.
90. M. Maguire & C. Corbett, supra note 5, at 200.
91. Zygmunt Bauman quotes Arne Johan Vetleson as noting that empathy is the specific cognitive-emotional precondition of moral capacity. Bauman notes the tension between rulefollowing and the display of empathy when he writes: Obedience to rules specifically excludes empathy; the crowd-style togetherness plays on emotional identification with the 'suprapersonal' intolerant of personal specificity.' Z. BAUMAN, POSTMODERN ETHICS 143-44 (1993).
92. Freckelton, supra note 38.
93. Manning, supra note 27, at 1298, where Manning refers to criminal justice organizational rules and practices that characterize cases as high or low yield cases for the purposes of further action, according to what is at stake, the state of the evidence, the freshness of allegations etc. Perceptions of complainants as believable or not appear similarly to influence organizational handling.
94. Zimmerman, supra note 57.
95. S. Hester & P. Eglin, supra note 48.
96. My emphasis. T. Tyler, WHY PEOPLE OBEY THE LAW 133 (1990).
97. Id. at 175-76.
98. Complaints, supra note 3.
99. Minow, Partial justice: Law and Minorities, THE FATE OF LAW 170 (A. Sarat & T. Kearns eds. 1991)
100. Abrams, Hearing the Call of Stories, 79 Calif. L. Rev. 971 (1991).
101. The work of Donald Davidson provides an example of the philosophy of language I refer to here.
102. in relation to Davidson's position LITERARY THEORY AFTER DAVIDSON (R.W. Dasenbrock ed. 1993).
103. Scheppele, Facing Facts in Legal Interpretation in LAW AND THE ORDER OF CULTURE 65 (R. Post ed. 1991).
104. J. Fishkin, THE DIALOGUE OF JUSTICE: TOWARD A SELFREFLECTIVE SOCIETY 134, 146 (1992).
105. ARISTOTLE, EUDEMIAN ETHICS (quoted in C.D.C. REEVE, PRACTICES OF REASON: ARISTOTLE'S NICOMACHEAN ETHICS 46 (1992).