Do the Means Matter? Defense Attorneys’ Perceptions of Procedural Transgressions by Police and Their Implication on Police Legitimacy

• Published date: 01 April 2021
• DOI: 10.1177/0887403420915252
• Date: 01 April 2021
• Subject Matter: Articles

https://doi.org/10.1177/0887403420915252

Criminal Justice Policy Review

2021, Vol. 32(3) 245 –267

© The Author(s) 2020

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DOI: 10.1177/0887403420915252

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Article

Do the Means Matter?

Defense Attorneys’

Perceptions of Procedural

Transgressions by Police

and Their Implication on

Police Legitimacy

Siyu Liu1 and Esther Nir2

Abstract

Through interviews (n = 40) and surveys (n = 140) with separate samples of U.S.

defense attorneys practicing criminal law in a Northeastern state, we utilize a mixed-

methods approach to explore police procedural transgressions (e.g., pretextual stops,

overreaching searches) during stops, searches, and seizures. With a structural equation

path model, we examine whether and how procedural justice (an assessment of “the

means” to control crime) and police effectiveness (an assessment of police performance

or “the ends”) affect each other and influence perceptions of police legitimacy. Our

findings indicate that procedural justice enhances perceptions of police legitimacy,

whereas police effectiveness does not have an effect. Policy implications for developing

mechanisms that discourage procedural transgressions by police are discussed.

Keywords

procedural justice, police legitimacy, noble cause corruption, defense attorneys

Introduction

In 2015, the U.S. Bureau of Justice Statistics estimated that about 21% of the U.S.

population, age 16 or older, made contact with police in the past year; traffic stops are

1Penn State Harrisburg, Middletown, PA, USA

2New Jersey City University, Jersey City, NJ, USA

Corresponding Author:

Siyu Liu, School of Public Affairs, Penn State Harrisburg, 777 West Harrisburg Pike, Middletown,

PA 17057, USA.

Email: sul445@psu.edu

915252CJPXXX10.1177/0887403420915252Criminal Justice Policy ReviewLiu and Nir

research-article2020

246 Criminal Justice Policy Review 32(3)

the most common circumstance where a resident interacts with police, either as a driver

or a passenger (Davis et al., 2018). Due to the prevalence of these interactions, negative

experiences with police during such encounters (e.g., mistreatment or lack of profes-

sionalism) contribute disproportionately to residents’ overall perceptions of police

(Skogan, 2006); thus, discretionary decisions by officers in these situations are particu-

larly influential on general perceptions of police integrity and professionalism.

Although social media platforms have highlighted dramatic violations of individual

rights by policing authorities, everyday procedural transgressions are often hidden

from the wider public; these more common misbehaviors are sometimes regarded as

acceptable and, therefore, overlooked when the guilt of the apprehended is probable

and the victim’s interest is protected (e.g., police allege that hidden evidence was in

plain view; officer embellishes testimony regarding probable cause to justify the sei-

zure of an illegal substance). Moreover, behaviors of this nature (Crank & Caldero,

2000; Kleinig, 2002; Sharpe, 1995; Small & Watson, 1999; van Halderen & Kolthoff,

2017) are seldom penalized (Grano, 1971; Jacobi, 2011; Moreno, 2015; Orfield, 1992)

and even habitual transgressions are often left unaddressed (Grano, 1971; Jacobi,

2011; LaFave, 1965; Meltzer, 1988); yet, they pose a threat to the integrity of the

policing profession.

Among those individuals who have contact with the police through traffic stops, a

portion are subsequently charged with crimes and enter the court system as defendants;

it is at this juncture that defense attorneys enter the scene. Aside from their own per-

sonal experiences with the police in their daily lives, these court actors are routinely

exposed to procedural aspects of police behavior. Specifically, their positioning in the

criminal justice system provides them with access to police paperwork, witness testi-

mony, allegations of constitutional transgressions by police from numerous clients

(including defendants who are ultimately cleared of any wrongdoing), and judicial and

prosecutorial reactions to such allegations, among other information. This exposure

provides defense attorneys with critical data from various perspectives, instrumental to

understanding perceptions of police conduct present among members of the communi-

ties served. Thus, studying defense attorney perceptions of routine police enforcement

practices may be helpful to understanding prevalent community perceptions of police

conduct, as well as the role that procedural transgressions play in court community

dynamics. To date, these issues are largely unexamined in existing scholarship.

In this article, we seek to fill this gap by studying the perceptions and experiences

of defense attorneys regarding procedural transgressions by police, and the influence

that these perceptions have on police legitimacy. Utilizing a mixed-methods approach

(Trahan & Stewart, 2013), we first explore defense attorney perceptions of various

forms of procedural rule-breaking by police through 40 in-depth qualitative interviews

of defense attorneys practicing law in a Northeastern state in the United States. Using

140 surveys of defense attorneys, we then examine whether the erosion of procedural

standards perceived by our subjects undermine police legitimacy. We conclude with a

policy discussion on the importance of developing a police accountability structure for

procedural transgressions (big or small) to encourage constitutionally permissible

strategies with higher long-term efficacy.