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Should Courts Consider a Police Agency’s Reputation and Prior Bad Acts

prior bad acts and reputation of police agencies

I would like to start by mentioning that I could not find any law on this issue one way or another, but the defense bar may be missing out on an opportunity to ongoing police misconduct. In a previous article I discussed the problem of what has been known as ‘dropsy’ testimony. Basically it started after the U.S. Supreme Court ruled the 4th amendment was applicable to the state. All of a sudden police officers started claiming that defendants were dropping drugs at their feet. While this could be true in some instances, it definitely wasn’t happening at the rate the police were claiming. This type of testimony became known as ‘dropsy’ testimony. For more on ‘dropsy’ testimony see Ruiz v. State, 50 So. 3d 1229 (Fla. 4th DCA 2011).

While it might be hard to keep track of the number of times each officer has engaged in ‘dropsy’ testimony, the fact that the law enforcement agency has a reputation or a pattern of conduct of this type of behavior could shed some light on the case. Therefore such evidence should be admissible as reputation or similar fact evidence under an agency theory of admissibility that this agency is engaging in this type of behavior.

Theories of Admissibility

There are three rules of evidence which a reputation or prior misconduct of law enforcement may be admissible under: 1) Reputation Evidence (FEC 405)[1]; 2) Modus Operandi (FEC 404 – Mode of Operation)[2]; and 3) Doctrine of Chances (FEC 404 – A Theory of Similar Fact Evidence).[3]

Applying the Rules of Evidence to Agencies: Although FEC 404 & 405 only refers to when evidence is admissible against a person, the court should not take a strict reading of these rules to only apply them to a specific person, and not apply them to agencies for two reasons: 1) FEC 404, which prohibits prior acts only prohibits the act against a person and not an agency; and 2) To rule otherwise would allow the police to engage in misconduct as long as no one person develops a reputation or pattern for the misconduct. This is what allowed the ‘dropsy’ testimony to persist.

Foot Notes

[1] Reputation Evidence: A person’s reputation in the relevant community is admissible if the witness has a sufficient amount of knowledge of the person’s reputation. For example if people in the community have knowledge that a law enforcement agency is engaging in ‘dropsy’ testimony, it should be admitted to show that law enforcement has a reputation for this kind of behavior.

[2] Modus Operandi: If law enforcement routinely engages in a certain kind of conduct to hinder the defendant’s, then that conduct should be admissible to show this is their mode of operation

[3] The Doctrine of Chances: The “doctrine of chances” is similar to the rule regarding “Similar Fact Evidence.” It is used to show that when the same unlikely event keeps happening it might not be a coincidence. For example if someone’s wife drowns in the pool it could be an accident. However if wife two and three drown in the same pool it is unlikely that all three deaths were an accident.