§ 14.04. Judicial Responsibilities with Regard to the Policing Function – Principles of the Law, Policing
(a) Judges foster lawful policing when they:

(1) evaluate thoroughly, fairly, and impartially, without any presumption of credibility, all evidence offered by officers, including testimony in pretrial hearings, trials, and other formal proceedings, in sworn statements, and in affidavits associated with applications for warrants and other orders;

(2) enforce fully legal requirements that obligate prosecutors’ offices and policing agencies to disclose information to a criminal defendant;

(3) assess thoroughly, fairly, and impartially whether police officers and prosecutors have complied with their obligations of truthfulness and disclosure, document diligently any noncompliance with those obligations, and—as appropriate—impose sanctions for violations;

(4) assess thoroughly, fairly, and impartially any assertions officers make of legal privileges or immunities; and

(5) scrutinize applications for warrants or other like court orders with care, giving them the attention and deliberation they are due in light of the significant individual interests at stake.

(b) The judiciary, as an institution, can foster sound and lawful policing by identifying, evaluating, and adopting systemic practices such as:

(1) establishing case-assignment procedures to eliminate or minimize judge-shopping at any stage of proceedings, including the warrant docket;

(2) fostering transparency in the adjudicative process, including providing to the public data relevant to sound policing, see § 14.10, and minimizing nondisclosure orders regarding policing practices, see § 2.05(c);

(3) developing mechanisms and protocols by which individual judges can take note of, and report, instances of unlawful conduct by officers in the performance of their official duties; and

(4) providing judges with useful educational resources, including training, to help them adhere to the responsibilities set out in subsection (a).

Comment:

Reporters’ Notes

Judges are integral to ensuring lawful policing, and the judiciary can contribute to sound policing. Neutral, full, and fair adjudication is essential to safeguarding individual rights and ensuring accurate adjudicative outcomes. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 250 (1980) (explaining that the impartiality of judges “serves as the ultimate guarantee of a fair and meaningful proceeding in our constitutional regime”); In re Murchison, 349 U.S. 133, 136 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process.”); cf. Woodford v. Ngo, 548 U.S. 81, 104 (2006) (Stevens, J., dissenting) (“The citizen’s right to access an impartial tribunal to seek redress for official grievances is so fundamental and so well established that it is sometimes taken for granted.”). This sort of neutrality is particularly important when those being judged are officers of the state. No one must be seen as above the law, particularly those responsible for enforcing the law. See, e.g., Miranda v. Arizona, 384 U.S. 436, 479-480 (1966) (“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.” (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting)); United States v. Lee, 106 U.S. 196, 220 (1882) (stating that “[n]o man in this country is so high that he is above the law” and that government officials are “only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives”). In addition, both judges and the judiciary have a stake in safeguarding the integrity of the judiciary and the perception and reality of fairness in adjudication, particularly the adjudication of criminal matters. See, e.g., Bracy v. Gramley, 520 U.S. 899, 904-905 (1997) (“[T]he floor established by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal’ before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” (internal citation omitted) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975))); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”). Much of what must be done falls upon individual judges in adjudicatory matters, but there also are actions the judiciary can take to address systemic issues. Adhering to basic principles of procedure, judicial neutrality, and procedural justice are essential to maintaining public confidence in the judiciary and the work of judges. See 2021 Year-End Report on the Federal Judiciary 3 (2021), https://www.supremecourt.gov/‌publicinfo/year-end/2021year-end‌report.pdf (noting that “judges must be scrupulously attentive to both the letter and spirit of our rules” and that they are “duty-bound to strive for 100% compliance because public trust is essential, not incidental, to [the judicial] function.”). Constitutional, statutory, and procedural rules must be followed. See, e.g., Smith v. Turner, 48 U.S. 283, 291 (1849) (“In all our courts the judges are bound to decide according to the law of the land; not according to what they think the law ought to be, but according to the manner in which they find it settled by adjudged cases.”); Gamble v. United States, 139 S. Ct. 1960, 1983 (2019) (Thomas, J., concurring) (“‘[P]recedents and rules must be followed, unless flatly absurd or unjust,’ because a judge must issue judgments ‘according to the known laws and customs of the land’ and not ‘according to his private sentiments’ or ‘own private judgment.’” (quoting 1 William Blackstone, Commentaries *69-70 (1765))). Judges must neither favor one of the parties before them, nor be perceived as doing so. See In re Murchison, 349 U.S. 133, 136 (1955) (explaining that even judges “who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties” should not necessarily preside over a trial because “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’” (quoting Offutt v. United States, 348 U.S. 11, 14 (1954))); Model Code of Jud. Conduct Canon 1 (Am. Bar Ass’n 2020) (“A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary”); Model Code of Jud. Conduct Canon 2 (Am. Bar Ass’n 2020) (“A judge shall perform the duties of judicial office impartially, competently, and diligently”); Code of Conduct for U.S. Judges Canon 3 (Jud. Conf. 2019) (“The judge should perform [their] duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased.”). Studies show that litigants even will accept losing if they perceive the system was fair and that they were heard. See generally Tom R. Tyler, Why People Obey the Law (1990).

Constitutional law provides some basics to fair adjudication. For example, prosecutors must not suborn perjury. See Mooney v. Holohan, 294 U.S. 103 (1935). They must correct false testimony they know or should know to be false. See Napue v. Illinois, 360 U.S. 264 (1959); Giglio v. United States, 405 U.S. 150 (1972). They have an obligation to turn over to the defense any potentially exculpatory or impeachment evidence. See Brady v. Maryland, 373 U.S. 83 (1963). And government actors, including police and prosecutors, must not deliberately fabricate evidence. See Devereaux v. Abbey, 263 F.3d 1070, 1074-1075 (9th Cir. 2001) (“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.”). Federal, state, and local statutory rules and court procedures provide others. See, e.g., Fed. R. Evid. 603 (“Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.”); Cal. Penal Code § 118.1 (making it a crime for a peace officer to knowingly and intentionally make a false statement when filing a report regarding the commission of a crime); N.Y. C.P.L. § 245.20(k) (requiring the prosecution to disclose all evidence, including evidence known to the police, that would negate the defendant’s guilt; mitigate culpability; support a potential defense; impeach the credibility of a prosecution witness; undermine evidence of the defendant’s identity as the perpetrator; provide a basis for a motion to suppress; or mitigate punishment); Admin. Rules of the Unified Ct. Sys. of N.Y. § 100.3 (outlining the adjudicative responsibilities of judges in New York State, including to “perform judicial duties without bias or prejudice against or in favor of any person” and to “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to the law”).

Yet, there is far too much evidence that despite the existence of these clear rules and prohibitions, there are systemic and individual failures. The criminal-adjudication system too often is one of assembly-line justice, no doubt fostered by dockets too large to manage effectively. Misdemeanor adjudication is a particular culprit; defendants often are rushed through arraignment and guilty pleas in mere minutes, sometimes without a lawyer. See Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 1013 (2021); see also Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing 10 (2018) (arguing that misdemeanor criminal courts have abandoned their traditional role of adjudicating the guilt of individual people and instead have adopted a “managerial model” of administering justice, primarily concerned with “managing people over time through engagement with the criminal justice system”). The result is that misdemeanor courts are characterized by two fundamental problems: “pervasive disregard for basic criminal law and procedural protections” and “strong inegalitarian tendencies toward criminalizing and punishing the poor and people of color.” Alexandra Natapoff, The High Stakes of Low-Level Criminal Justice, 128 Yale L. Rev. 1648, 1660 (2019) (reviewing Misdemeanorland, supra); see also Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (2018). But even for felonies, there are concerns that proceedings are too hurried or pro forma, that defendants are not heard, and that pleas are forced. See, e.g., Amy Bach, Ordinary Injustice: How America Holds Court (2009).

Although these concerns are not about lawful policing, they have a profound effect upon it. When the adjudicative process is not operating properly, many violations of lawful policing will go unnoticed, unchallenged, unadjudicated, or unremedied. And when lawful policing is not enforced, it will be neglected.

Evidence is all too plentiful that some police officers commit the most inexcusable acts as part of criminal investigations and adjudication. They falsify reports, plant evidence, and, most consequentially, they lie, even under oath and in judicial tribunals. See generally Michael R. Bromwich et al., Anatomy of the Gun Trace Task Force Scandal: Its Origins, Causes, and Consequences (Jan. 2022) (detailing “truly egregious acts of corruption” committed by Baltimore Police Department officers, including planting weapons and drugs on suspects, robbing people during street stops, and illegally using GPS trackers); see also Rachel Weiner, Virginia Beach Police Used Forged Forensic Documents in Interrogations, Wash. Post (Jan. 12, 2022), https://‌www.washingtonpost.com/dc-md-va/2022/01/12/virginia-beach-police-forged-documents/ (describing how Virginia Beach police officers used forged forensic documents to convince suspects that evidence connected them to a crime, and at least one of the forged documents was presented at a bail hearing as evidence); Tom Jackman, Ex-Philadelphia Homicide Detectives Arrested, Accused of Lying in Wrongful Conviction, Wash. Post (Aug. 14, 2021) (three former detectives charged with perjury and false statements for their role in wrongfully convicting a man of murder and putting him in prison for 25 years); Nicholas Bogel-Burroughs & Frances Robles, When Police Lie, the Innocent Pay. Some Are Fighting Back, N.Y. Times (Aug. 28, 2021) (noting that “[t]here have long been instances in which the police have provided false accounts of arrests, but disparities between officers’ descriptions and what people see have become more common with the expansion of body cameras and cellphone videos”); Jake Pearson, A Union Scandal Landed NYPD Officers on a Secret Watchlist. That Hasn’t Stopped Some from Jeopardizing Cases, ProPublica (Oct. 22, 2021) (reporting on several instances of police officers providing false testimony, even after prosecutors had placed them on a secret “No Fly List” because of prior misconduct); Melanie D. Wilson, An Exclusionary Rule for Police Lies, 47 Am. Crim. L. Rev. 1, 4-15 (2010) (cataloging robust evidence of police lying, including the well-known Mollen Commission that “found police perjury rampant” in New York City between 1992 and 1994); Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75 (1992) (finding that police, judges, prosecutors, and public defenders agreed there was a “pattern of pervasive police perjury” in Chicago); Joseph Goldstein, ‘Testilying’ by Police: A Stubborn Problem, N.Y. Times (Mar. 18, 2018) (chronicling instances of police lying in New York City); Michelle Alexander, Why Police Lie Under Oath, N.Y. Times (Feb. 2, 2013) (quoting former San Francisco Police Commissioner: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath.”); U.S. Dep’t of Just., Investigation of the Chicago Police Department 75 (2017) (indicating that “a code of silence exists” among police officers and “is apparently strong enough to incite officers to lie even when they have little to lose by telling the truth”). Such conduct is so common it has a name: “testilying.” Joe Sexton, New York Police Often Lie Under Oath, Report Says, N.Y. Times, Apr. 22, 1994, at A1.

Unfortunately, the evidence also shows that judges have at times failed in their responsibility to address these problems. At the least, some judges have not scrutinized the actions of police sufficiently, leading to the impression that misconduct is all part of the process, or that the ends justify the means. See Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 107 (1992) (conducting a survey with judges, prosecutors, and defense attorneys in Chicago and finding that 69% of respondents believed Chicago’s system did not effectively control police perjury at suppression hearings); id. at 114 (“A disturbing number of [Chicago system survey] respondents actually believe that police lying in court is not perjury. . . . When I asked whether [one Chicago judge] equated police fabrications with perjury he answered, ‘Of course it is not perjury. Who would ever think it was perjury? Do you know what perjury is?’”); Christopher Slobogin, Testilying: Police Perjury and What to Do about It, 67 U. Colo. L. Rev. 1037, 1045 (1996) (“Many prosecutors and judges believe perjury is systematic and often suspect it is occurring in individual cases. But they also frequently claim that they are not sure enough to do anything about it . . . .”); Melanie D. Wilson, Improbable Cause: A Case for Judging Police by a More Majestic Standard, 15 Berkeley J. Crim. L. 259, 263-264 (2010) (explaining that a two-year study of Kansas judges’ rulings on allegations of police perjury revealed that trial judges are “failing to fulfill [the] important role of identifying police perjury, either because they are unable to distinguish carefully crafted lies from truth or because they err on the side of punishing a culpable defendant, even if police may have lied.”); State v. Finkle, 201 A.3d 954, 968 (Vt. 2018) (dissenting opinion) (“Judicial attempts to protect a citizen’s Fourth Amendment rights are further frustrated by well-documented police falsification and perjury, which trial court judges are often either unable or unwilling to identify.”). At the worst, some judges—with full awareness that misconduct is occurring—simply have averted their eyes. See Alan M. Dershowitz, Controlling the Cops: Accomplices to Perjury, N.Y. Times, May 2, 1994, at A17 (“Some judges refuse to close their eyes to perjury, but they are the rare exception to the rule of blindness, deafness and muteness that guides the vast majority of judges and prosecutors.”); Myron W. Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016, 1023 (1987) (arguing that “because the exclusion of evidence frequently returns guilty criminals to the street, judges may ‘wink’ at obvious police perjury in order to admit incriminating evidence”); cf. Michael Traynor, Some Friendly Suggestions for the Federal Judiciary about Accountability, 168 U. Pa. L. Rev. 128, 131 (2020) (arguing that federal judges can be “timid when courage is needed”). This is an issue that judges themselves have recognized. See Jon Loevy, Truth or Consequences: Police Testilying, 36 Litig. 13, 14 (2010) (quoting Massachusetts District Judge Mark Wolf’s remark that there was a “‘long and recent history’ of false testimony in court by Boston police officers” and Eastern District of New York Judge Jack Weinstein’s remark that the NYPD engaged in “repeated, widespread falsification”); Nancy Gertner, The “Lower” Federal Courts: Judging in a Time of Trump, 93 Ind. L.J. 83, 86 (2018) (criticizing federal judges for employing a “duck, avoid, and evade” approach that reduces certain litigation—“notably, civil rights cases and police misconduct litigation—to kabuki rituals” in which plaintiffs “regularly lose long before trial”); Jonathan Blanks, Reasonable Suspicion: Are Police Lying in Use of Force Cases?, CATO Inst. (Jan. 7, 2015), https://www.cato.org/‌com‌men‌tary/‌‌reasonable-suspicion-are-police-lying-use-force-cases (“Alex Kozinski, now‐​chief judge of the U.S. Court of Appeals for the Ninth Circuit once said, ‘It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.’”); Joseph Goldstein, Brooklyn Judge Seeks to Examine Prevalence of Police Lying, N.Y. Times (Oct. 17, 2017), https://www.nytimes.com/2017/10/17/nyregion/brooklyn-judge-police-per‌jury-‌nypd.html (describing how Judge Weinstein “told the city to prepare for a court hearing regarding the prevalence of lying by New York City police officers” after reviewing recent accusations of false testimony by NYPD officers); Steve Mills & Todd Lighty, Cops Rarely Punished When Judges Find Testimony False, Questionable, Chi. Trib. (May 6, 2016) (quoting a retired Cook County, Illinois, judge who confirmed that judges often encounter police lies but “don’t do enough about it”).

It is not just policing officials, though, who break the rules; other government actors, from investigators to prosecutors, do the same. They suborn perjury. See Slobogin, Testilying: Police Perjury and What to Do About It, supra, at 1046-1047 (noting that in Orfield’s Chicago system survey, “52% [of respondents] believed that at least ‘half of the time’ the prosecutor ‘knows or has reason to know’ that police fabricate evidence at suppression hearings”); Morgan Cloud, Judges, “Testilying,” and the Constitution, 69 S. Cal. L. Rev. 1341, 1353 (1996) (noting New York’s Mollen Commission concluded that prosecutors sometimes exhibited the same tolerance for police perjury as law-enforcement officers themselves); see also I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 870 (2008) (“Blue lies are so pervasive that even former prosecutors have described them as ‘commonplace’ and ‘prevalent.’”).They fail to comply with perfectly clear discovery and disclosure obligations. See Kathleen Ridolfi et al., Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases 1 & n.2 (2014) (collecting studies demonstrating “conclusively” that prosecutorial disclosure duties are “often left unfulfilled”); Rachel E. Barkow, Organizational Guidelines for the Prosecutor’s Office, 31 Cardozo L. Rev. 2089, 2090 (2010) (“A host of studies have documented prosecutorial misconduct, and one of the most common types of prosecutorial misconduct in these cases involved the suppression of exculpatory evidence in violation of Brady v. Maryland.”); The Justice Project, Improving Prosecutorial Accountability: A Policy Review 2 (2009) (“The most common form of prosecutorial misconduct is a failure to provide the defense team with evidence that is favorable to the defendant.”); Robert M. Cary et al., Federal Criminal Discovery (2d ed. 2021).

Finally, there is the problem of judges—often acting under the pressure of caseloads—simply failing to take the time to scrutinize carefully and independently the requests of officers for warrants. Yet, the issuance of a warrant regularly involves a substantial intrusion into people’s lives. One area of particular concern is the issuance of no-knock warrants, which often are executed by police in tactical gear, wielding a variety of armaments. In far too many instances, the execution of these warrants has led to property damage, serious personal injury, and even death. See Courtney Kan, Jenn Abelson, & Nicole Dungca, 5 Takeaways from the Post’s Investigation into No-Knock Warrants, Wash. Post (May 5, 2022); Piper Hudspeth Blackburn, Breonna Taylor’s Death: A Push to Limit No-Knock Warrants, A.P. (Mar. 30, 2021). Sometimes the information provided by police was accurate but did not necessarily justify the use of a no-knock entry. See Nicole Dungca & Jenn Abelson, No-Knock Raids Have Led to Fatal Encounters and Small Drug Seizures, Wash. Post (April 15, 2022). In other instances, police representations to obtain the warrant themselves were false. See Ex parte Mallet, 620 S.W. 3d 797 (Tex. Crim. App. 2021, unpublished).

A wealth of scholarship suggests actions judges can take to address these problems. When it comes to false testimony or evidence, commentators recommend several different strategies. First and foremost, commentators agree that judges can take an active role in scrutinizing police work, particularly during suppression hearings. See Steven Zeidman, Policing the Police: The Role of the Courts and the Prosecution, 32 Fordham Urb. L.J. 315, 332-336 (2005) (encouraging judges to hold more suppression hearings and (1) permit vigorous cross-examination of police witnesses, (2) require the officers most directly involved in the arrest to testify, and (3) permit the defense to call their own witnesses); Joseph Goldstein, Police ‘Testilying’ Remains a Problem. Here Is How the Criminal Justice System Could Reduce It, N.Y. Times (Mar. 22, 2018) (making a similar recommendation and noting that only 2.4% of felony cases in Manhattan that do not end in a guilty plea at initial arraignment have a suppression hearing). In particular, judges should take seriously allegations of police perjury and “encourage a much deeper exploration of the issue of police credibility than presently occurs.” David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L. 455, 464 (1999). Recent reporting on the issue of testilying has led to a suggestion to make police officer credibility findings public in order to better inform the public about the prevalence of police lying. See Joseph Goldstein, Police ‘Testilying’ Remains a Problem. Here Is How the Criminal Justice System Could Reduce It, N.Y. Times (Mar. 22, 2018). Other commentators encourage judges to focus on accountability and to adopt stronger sanctions for police lies to more effectively deter perjury. See Wilson, An Exclusionary Rule for Police Lies, supra, at 45-46. Still others suggest that judges should cease instructing juries that the testimony of a police officer is to be treated like that of any other witness, and instead warn the jury that police officers hold certain biases that may affect the credibility of their testimony. See Vida B. Johnson, Bias in Blue: Instructing Jurors to Consider the Testimony of Police Officer Witnesses with Caution, 44 Pepp. L. Rev. 245, 298-299 (2017).

Judges also can and should—in signing warrants and other court orders—take the time to review and deliberate over them commensurate with the interests involved. See, e.g., U.S. v. Leon, 468 U.S. 897, 913 (1984) (emphasizing the importance of neutral and detached magistrates scrutinizing warrants); ABA Standards for Criminal Justice: Special Functions of the Trial Judge, Standard 6-1.10 (judges should “carefully observe constitutional and statutory requirements and not permit these procedures to become mechanical or perfunctory”). Perhaps judges issuing no-knock warrants should be required to affix an additional signature indicating that is the way entry will occur. It also is worth noting that several states have banned the use of no-knock warrants altogether. Kiara Alfonseca, What to Know About No-Knock Warrants, Following Amir Locke’s Fatal Shooting, ABC News (Feb. 10, 2022) (noting that Florida, Oregon, and Virginia have banned no-knock warrants and at least 34 other states have restrictions or limitations on their use).

When it comes to disclosure and discovery obligations, again there are a number of actions that could be taken to make judging more effective. Although disclosure obligations fall on lawyers much more than police, attention to this issue is entirely appropriate in principles about policing. Policing officials have their own obligations. See, e.g., 725 Ill. Comp. Stat. 5/114-13 (requiring law-enforcement officials to provide investigative materials and exculpatory information to the prosecution); U.S. Dep’t of Just., Justice Manual, § 9-5.100 (establishing policy for evidence disclosure to the prosecution by federal law-enforcement officials). But their conduct also affects compliance by prosecutors with obligations under federal and state law. See, e.g., Kyles v. Whitley, 514 U.S. 419, 437-438 (1995) (holding the prosecution responsible for a Brady violation even when the exculpatory information was known only to the police). And the many sources cited above indicate prosecutors often tolerate police misconduct.

The adversarial process will not always generate compliance with discovery obligations, but judges can adopt procedures that make compliance more likely. Judges can issue comprehensive standing orders governing the prosecution’s evidence-disclosure duties. See Jones, Here Comes the Judge, supra, at 110. In fact, this is now a requirement of federal judges. The recently enacted Due Process Protections Act requires federal judges to “issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.” Pub. L. No. 116-82, 134 Stat. 894 (2020). Judges could go even further and issue an Ethical Rule Order requiring the prosecution “to search his file and disclose all information that ‘tends to negate the guilt of the accused or mitigates the offense,’” in accord with ABA Model Rule 3.8(d).Ridolfi et al., Material Indifference, supra, at 48. Many practitioners agree that it is crucially important for judges to hold mandatory pretrial Brady conferences and impose clear deadlines for when material must be turned over. See Symposium, New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 Cardozo L. Rev. 1961, 2032 (2010). Along the same lines, some commentators suggest judges create and use Brady “checklists,” hold pretrial Brady compliance hearings, and require prosecutorial certification of compliance with Brady. See Jones, Here Comes the Judge, at 113-122. Finally, commentators emphasize that judges should issue sanctions for failure to comply with disclosure obligations, publicly call out prosecutors for their misconduct, and report violations to the relevant disciplinary committees. See Jones, Here Comes the Judge, supra, at 129; New Perspectives on Brady and Other Disclosure Obligations, supra, at 2034; Kathleen M. Ridolfi & Maurice Possley, Preventable Error: A Report On Prosecutorial Misconduct in California 1997–2009, at 50 (2010).

Finally, judges may have a special role to play when the function they are serving is less neutral adjudication in the classic sense, and more supervision of the policing function itself. A prime example of this is the warrant process. See Jack Knight, Mitu Gulati & David Levi, How Bayesian Are Judges?, 16 Nev. L.J. 1061, 1067, 1077 (2016) (describing involvement of judicial officials in reviewing warrant applications).

It is not just individual judges who should take action to ensure the adjudicatory process fulfills its role of ensuring lawful policing, or to incentivize sound policing; the judiciary as an institution (or entire courts) also have a role to play. Courts can amend their rules and policies to address specifically the issues discussed in this Section. For example, several scholars suggest courts at the federal and state level codify clear rules outlining the prosecution’s evidence-disclosure duty, including the specific type of information that must be disclosed, the timing of disclosure, and sanctions for failure to comply. See Jones, Here Comes the Judge, at 124; Ridolfi et al., Material Indifference, supra, at 49. Similar rules and policies could be adopted around reporting requirements and sanctions for untruthful police testimony. And, importantly, judges can leverage the massive amount of information they have about the actions of prosecutors and police to better understand how the court system is functioning at an institutional level, and take action to promote sound policing. See generally, Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. L. Rev. 2049 (2016) (discussing the various types of “systemic facts” that criminal courts possess from the information contained in warrant applications and returns, suppression hearings, and evidence disclosure statements, and suggesting ways to use this information to improve criminal-court operations). Issues of implicit bias are more complicated. There is a lack of current evidence that antibias trainings promote long-term changes in attitudes and behavior. See Nat’l Ctr. for State Courts, The Evolving Science on Implicit Bias (2021); The Behavioural Insights Team, Unconscious Bias and Diversity Training – What the Evidence Says (2020). Judge Bernice Donald of the U.S. Court of Appeals for the Sixth Circuit recommends that judges gather and analyze data about case dispositions and sentences to identify and combat bias that may occur. See Bernice Donald, Judges on Race: Reducing Implicit Bias in Courtrooms, Law360 (Dec. 6, 2020); see also ABA & NAACP Legal Def. Fund, Joint Statement on Eliminating Bias in the Criminal Justice System (July 2015), https://‌www.americanbar.org/content/dam/aba/images/abanews/aba-ldf_statement.pdf (calling on judges to “seek expert assistance to implement training on implicit bias for their employees”). This type of empirical analysis could be encouraged or required through new policies and practices court-wide. Finally, commentators have noted the importance of improving conditions of judicial decisionmaking by providing judges with the resources and time to “engage in effortful, deliberative processing.” See Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1173 (2012); Kang et al., Implicit Bias in the Courtroom, supra, at 1177. One area ripe for attention by the judiciary is warrant practice. At present, there can be judge-shopping for warrants, unlike the more typical rule of random assignment. See James Orenstein, Opinion, I’m A Judge. Here’s How Surveillance is Challenging Our Legal System, N.Y. Times (June 13, 2019), https://www.nytimes.com/2019/06/13/opinion/privacy-law-enforcment-congress.html (discussing the practice of judge-shopping among prosecutors); Richard Van Duizend et al., Nat’l Ctr. for State Cts., The Search Warrant Process: Preconceptions, Perceptions, and Practices – An Executive Summary 44 (1984) (finding that “judge-shopping is practiced by search warrant applicants”). In jurisdictions with more than one judge, assignment should be randomized or other means should be adopted to prevent judge-shopping. There also is insufficient public information about warrants and court orders, particularly around electronic and digital surveillance. See generally Hannah Bloch-Wehba, Visible Policing: Technology, Transparency, and Democratic Control, 109 Cal. L. Rev. 917 (2021); Stephen Wm. Smith, Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket, 6 Harv. L. & Pol’y Rev. 313 (2012); see also § 2.05 (discussing sealing and nondisclosure of court orders). The data contained in warrant returns can also be a rich source of information for judges to analyze and learn from—though this practice is not routinely engaged in. See Jack Knight, Mitu Gulati & David Levi, How Bayesian Are Judges?, 16 Nev. L.J. 1061, 1067, 1077 (2016) (surveying 30 federal judges and finding “the overwhelming majority of the judges did not appear to pay any attention whatsoever to the data in the returns”). Inspecting returns could inform future judicial review of warrant requests and ensure the quality of officer evidence and testimony.