Sometimes a well-intentioned police officer may experience something known as confirmation bias.
I Saw Sputnik!
Article by Peter H. Lederman, Esq.
Published in the New Jersey Law Journal
Trials in DWI cases are very challenging. Thoughts swirl through my head at counsel table like so many snowflakes in a March Nor’easter! What makes me really crazy though, is when Officers and Troopers try too hard to make their case.
Officers are charged with maintaining the peace and apprehending offenders. At the same time, they must find a balance with their obligation to support and defend the Constitutional rights of individuals. This balance reflects the fundamental task of what we want the government to do and what we will not tolerate as to how it is done. Such a balance can be upset when testifying Officers and Troopers try too hard to obtain convictions. This is especially so when the court’s ability to obtain reliable information is diminished because testimony comes from an Officer who is the only available fact witnesses.
It goes without saying that people are not perfect. Obviously, this would be so for those who pursue careers in law enforcement and testify as witnesses for the State, just as it would for lawyers and weathermen. Officers and Troopers testifying in court though, are in a position to cause serious punishment to be inflicted by the court when testimony is enhanced to obtain a conviction.
Organizations like MADD incentivize Officers and Troopers by recognizing them through the “Mothers Against Drunk Driving Recognition Award”. The same is true for the New Jersey Division of Highway Traffic Safety’s “Top Gun DWI Enforcement Award”. It might not be surprising that Officers and Troopers seeking career advancement might be inclined to embellish and exaggerate testimony in a DWI trial.
Sometimes though, a well-intentioned Officer or Trooper may be experiencing something as innocent as “confirmation bias”. Confirmation bias generally refers to an inclination to see things consistent with a preconceived notion. Events are observed as anticipated, consistent with the outlook of the observer.
Confirmation bias may be a new term. It is not, however, a new phenomenon. I experienced it myself a long time ago.
Back when I was younger than today, our country and Soviet Russia competed to launch the first manmade satellite in orbit around the Earth. I remember the excitement when the first orbiting satellite called Sputnik, was launched by the Soviets. So, on the Saturday afternoon following the launch, my oldest friend (now an Internist in Lawrenceville) and I positioned ourselves in my backyard, equipped with my Uncle’s Korean War binoculars and an old AM radio that somehow picked up Morse code at the end of the tuning dial.
Sometime in the afternoon, Steve and I must have seen a bug or some other small object through the binoculars, while the radio was beeping an indecipherable message in Morse code. Without more, I concluded that we must have just seen Sputnik and heard its signal! With great excitement and certitude, these two young men called what then known as the Home News and reported our observations.
Unfortunately, the story appeared the following day, next to the obits in the Sunday edition, where it got a lot of attention. Soon, more people than I care to recall pointed out to me that I could not have seen Sputnik for a number of reasons. My Uncle came over to the house and showed me that the satellite was probably on the other side of the world when I made my observation. Others pointed out that most heavenly bodies were only visible to the human eye at night! For years, other kids would yell, “Hey Lederman, see Sputnik lately!”
Whether Sputnik was overhead or over China, however, was not the point. For me, I did see Sputnik because well, I wanted to see it! It didn’t matter whether it was there in reality. Thinking that I saw it was enough to somehow experience an exciting moment in history. I wanted to see it and I believed I did!
Some say that everything happens for a reason. Sometimes when I review discovery with clients, I tell the Sputnik story to explain how the Officer’s statement of events as told in his Narrative, could be so different from the Mobile Video Recording or my client’s recollection.
The truth is that you cannot filter human emotion from the creation of a Narrative or a Trooper’s testimony on the stand. What you can do, however, is practice your trade as well as it can be done.
You can challenge the State to justify the stop of the Defendant’s car, the instruction to perform field sobriety tests and his arrest. You can insist on the production of discovery that tells the story of what happened. You can take the time to review video to make sure it matches what the Officer claims in his Narrative. You can prepare by reviewing and mastering all of the facts of the case. You can be patient and persistent through the course of trial.
In the most basic sense, you can “work the problem” and confront the witness who is perhaps describing what he thought he should see, in the course of a DWI investigation. In doing so, you will be making a difference for your client and for a moment, becoming that shining object passing through the sky.
About the Author
Peter Lederman, Esq is an attorney and partner with the law firm of Davison, Eastman, Muñoz, Lederman & Paone. Peter represents drivers charged with DWI in Courts throughout the State of New Jersey. His practice is and has been limited to the exclusive representation of defendants charged with Driving While Intoxicated and other related offenses.