 |
| Lindsay Graef |
 |
| Sandra Mayson |
 |
| Aurélie Ouss |
 |
| Megan Stevenson |
At least four officers allegedly colluded with a local defense attorney to get DWI cases dismissed by failing to appear in court to testify against the defendant, ostensibly in exchange for a kickback from the lawyer. As of early May, nine officers have been placed on leave in connection with the investigation.[1]
The scandal has sparked a slew of coverage about officer failures to appear, and the poor mechanisms in place to track their court appearances.
But this is not a new problem, and it is not limited to DWI cases. Ten years of data from the Philadelphia courts and Philadelphia District Attorney's Office reveal a striking picture: Police officers and other legal actors fail to appear in court quite frequently.[2] And, as demonstrated by the Albuquerque scandal, when people don't show up for court, cases get dismissed.
Until recently, attention around court absenteeism, usually called failure to appear, or FTA, has almost exclusively focused on defendants.
The criminal justice system has many intensive and invasive policies to ensure that defendants show up in court, including cash bail, pretrial detention and pretrial supervision. The rationale for these policies is that the courts can't operate, and justice can't be served, if defendants don't appear.
But this argument misses a critical fact. Most of those who fail to appear are not defendants, but the other actors necessary for criminal proceedings: police officers, civilian witnesses and private defense attorneys.
We analyzed data from Philadelphia to quantify the scale of failures to appear by all criminal court actors.[3] From 2010 to 2020, an essential police officer, civilian witness or lawyer failed to appear for at least one hearing in over half of all cases, compared to just 19% for defendants.
The police officer FTA rates are particularly striking: Officers failed to appear in 31% of cases for which they were subpoenaed as a witness. On a per-hearing level, police officers failed to appear for 13% of their required hearings — almost twice the rate of defendants.
These high FTA rates have serious systemic consequences. When a police officer or other witness doesn't show up, the case must either be rescheduled or dismissed. In the Philadelphia data, cases that involved any witness FTA were dismissed 58% of the time, compared to just 25% among cases where everyone showed up.
Cases with an officer FTA were 14 percentage points more likely to be dismissed than cases with no FTA, and this effect was even bigger for officer-initiated arrests, like drug cases and DUIs. For example, DUI cases were 20 percentage points more likely to be dismissed if an officer failed to appear — they were dismissed at double the rate of DUI cases with no FTA.
Our calculations suggest that as many as 32,000 Philadelphia cases were dismissed between 2010 and 2020 because a police officer or civilian witness failed to appear.
For comparison, over the past decade, the Philadelphia District Attorney's Office charged an average of about 31,600 cases per year.[4] This means that FTAs were dispositive in nearly a year's worth of criminal cases.
It also means that, simply by deciding when to show up, the police play a significant role in determining how cases are adjudicated.
Although Albuquerque's DWI officers allegedly intended to throw cases for their own monetary gain, there are other reasons why police officers may willfully miss court. In our conversations with prosecutors and police officers in Philadelphia, we heard three common explanations for officer FTAs.
First, police officers may be more likely not to appear when they expect to be challenged on the legality of a stop or search. In our data, as mentioned above, officer FTA rates were highest for officer-initiated charges like drug and DUI offenses — cases where the officer is often the sole witness, and Fourth Amendment questions are at issue.
Second, particularly for low-level cases, some officers and prosecutors endorsed a "process is the punishment" logic, where the purpose of arrest is to jail someone for a few days, rather than to secure a conviction and mete out a sentence.
We see this reflected in our quantitative data too: Officers were more likely to show up for violent cases, and less likely to appear for low-level cases, which they presumably deemed less in need of formal punishment.
This raises numerous due process concerns, since the police are effectively acting as judge and jury, with few meaningful protections for the defendant. Given the heavy impact pretrial detention can have on the defendant and their family, this should give us pause.
The final and, we believe, most common reason for officer FTAs is the same problem that civilian witnesses and defendants face — the court system is a mess. Officers frequently fail to appear because of scheduling conflicts and poor notice systems.
The officer-subpoena system in Philadelphia is archaic and prone to frequent failures. Many police units rely on supervisors to hand out paper court notices, which are subject to the whims of glitchy printers. Poor scheduling means that individual officers may have several notices to appear in different courtrooms at the same time.
And attending court is a pain, even for police officers. Officers may sit in court for hours, only to be eventually told that their testimony is no longer needed because the defendant took a plea, or the prosecutor dropped the charges.
Being constantly on call for court is disruptive to officers' lives outside of work, particularly for officers who work the night shift. Last-minute subpoenas and hearings outside of their shift require child care coverage and can interfere with sleep or vacations.
Regardless of the reasons, officer FTA has important consequences for the functioning of the criminal legal system. When an officer misses court, it has real consequences for the other actors involved. The case must be rescheduled for another date, usually at least a month away.
That's another hearing for which civilian witnesses must miss work, arrange transportation and find child care — and another month that a detained defendant sits in jail.
Officer FTAs can also significantly hinder victims' access to justice by prolonging criminal proceedings and undermining their effectiveness.
In Philadelphia, where gun violence remains a serious concern, victims and their families are anxious to see solutions. Yet officer FTAs in gun cases remain high, making it difficult to hold perpetrators accountable.
Even in less serious cases, repeated delays can cause emotional distress and erode victims' confidence in the legal system. When an officer doesn't show, it signals negligence to everyone in the courtroom, and undermines the system's legitimacy.
Police departments should take responsibility for their officers' appearance in court. This might require creating better notice systems, working harder to avoid scheduling conflicts, and penalizing officers who fail to appear. But it could also mean making fewer arrests for cases that officers do not feel prepared to see through the court process.
As a starting point, criminal justice systems need information on the scope of the problem. Both Albuquerque and Philadelphia — and likely many other jurisdictions — currently lack reliable processes to track officer nonappearances. For progress to be made, this needs to change.
The Albuquerque DWI scandal is more than a story of isolated corruption in the police force. It highlights a much broader and more common trend. Criminal cases — a lot of criminal cases — stall because police officers and other witnesses don't show up.
Lindsay Graef is a doctoral student of criminology at the University of Pennsylvania.
Sandra G. Mayson is a professor of law at the University of Pennsylvania Carey Law School.
Aurélie Ouss is the Janice and Julian Bers assistant professor of criminology at the University of Pennsylvania.
Megan Stevenson is a professor of law and economics at the University of Virginia School of Law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
[1] https://www.independent.co.uk/news/ap-albuquerque-fbi-b2489825.html, https://www.kob.com/new-mexico/apd-dwi-scandal-ninth-officer-placed-on-leave/.
[2] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4558056.
[3] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4558056.
[4] https://data.philadao.com/Charge_Report_YE.html.