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

Published date01 April 2021
Date01 April 2021
Subject MatterArticles
Criminal Justice Policy Review
2021, Vol. 32(3) 245 –267
© The Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0887403420915252
Do the Means Matter?
Defense Attorneys’
Perceptions of Procedural
Transgressions by Police
and Their Implication on
Police Legitimacy
Siyu Liu1 and Esther Nir2
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.
procedural justice, police legitimacy, noble cause corruption, defense attorneys
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.
915252CJPXXX10.1177/0887403420915252Criminal Justice Policy ReviewLiu and Nir
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.

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