Rethinking Police Expertise.

• Date: 01 November 2021
• Author: Lvovsky, Anna

ARTICLE CONTENTS INTRODUCTION 479 I. EXPERTISE AND POLICE AUTHORITY 485 A. The Expansion of Deference 486 B. The Appeal of Expertise 491 C. Challenging Police Expertise 495 II. POLICE EXPERTISE AGAINST THE POLICE 497 A. Confessions 499 1. Debating Police Expertise in Miranda 499 2. Expert Interrogators at the Supreme Court 503 3. Expert Interrogators at the Lower Courts 505 B. Entrapment 509 1. Undercover Tactics and the Limits of Legitimate Policing 510 2. Expertise and Legal Entrapment 514 3. Expertise and the Atmospherics of the Courtroom 519 C. Excessive Force 523 1. Police Violence and the Disappearing Expert Officer 524 2. Police Expertise and Excessive Force in the Lower Courts 527 III. POLICE EXPERTISE: VIRTUE OR TECHNOLOGY? 534 A. Expertise as a Professional Virtue 536 1. Expertise as a Proxy for "Good" Outcomes 537 2. Expertise as a Good in Itself 540 B. Expertise as a Professional Technology 545 1. Police Proficiency and Criminal-Procedure Values 546 2. Police Technologies, Human and Otherwise 551 IV. RETHINKING EXPERTISE AND DEFERENCE 554 A. Virtue and the Instability of Epistemic Deference 555 B. Technology and the Political Limits of Expertise 559 C. Debating Expertise, Debating Policing 561 V. TOWARD A TECHNOLOGICAL VIEW OF POLICE EXPERTISE 563 A. Carrying Over 565 B. Branching Out 566 C. Changing the Question 569 CONCLUSION 572 INTRODUCTION

At Mitchell Lawrence's 2006 trial for selling marijuana to an undercover agent--charges procured, the defense protested, through unlawful police entrapment--an attorney invited the arresting officer to share his extensive background in the investigative work at issue. Detective Aguirre, he repeatedly reminded the jury, was "an experienced undercover cop" who had spent six years in narcotics, and indeed specialized in hand-to-hand sales as his area of "expertise," having participated in some six to seven hundred prior arrests. The officer, he emphasized in closing arguments, is "very good at what he does." (1)

That anecdote should sound familiar. It comports with a well-recognized pattern of prosecutors invoking the expertise of law-enforcement agents in a bid to impress judges and jurors, boosting the authority of police witnesses and strengthening their cases in court. Primarily associated with Fourth Amendment challenges to unlawful searches, appeals to expertise abound in a variety of disputes over the legitimacy of policing, diffusing challenges to unlawful evidence, defraying claims of entrapment and unreliable identification, deflecting allegations of excessive force, enhancing the credibility of police testimony, and even appeasing criticism of vague criminal statutes. Critics have questioned the merits of these outcomes, not least the contested--to some, indeed, insulting--presumption that police officers have any expertise to speak of. (2) But the underlying link between expertise and deference remains unquestioned. That connection seems obvious, emblematic of our intuitions about relative competency and judicial decision-making well beyond the criminal law. (3)

At Mitchell Lawrence's trial, however, there was a twist. The lawyer pressing Detective Aguirre on his "expertise" in hand-to-hand transactions was not the prosecutor. He was the defense attorney.

This Article examines a counterintuitive phenomenon: cases where claims of police expertise--the notion that trained, experienced officers bear unique skills and insights into their investigative work--do not bolster but undercut police authority in court. Looking beyond the familiar canon of Supreme Court opinions and toward the broader universe of judges' daily confrontations with law enforcement, (4) it surveys a range of disputes where prosecutors and officers downplay police proficiency--where defendants, civil plaintiffs, and sympathetic judges, ironically, find themselves aggrandizing such skills. In some cases, those arguments are underrecognized but not unprecedented. Echoing a dynamic standard in disputes over professional liability, (5) for instance, plaintiffs in excessive-force cases commonly emphasize police credentials to establish that an officer should have exercised greater prudence, insight, and restraint--suggesting, in effect, that the defendant failed to live up to his expertise in a given case. Often, however, it is precisely an officer's demonstrable proficiency in an encounter that fuels legal concerns. In debates over coerced confessions, officers' manifest expertise in the interrogation room, from their rarefied psychological insights to their talents at eliciting admissions, routinely convinces judges to exclude the ensuing statements, fueling concerns that those officers overbore a suspect's will in violation of the Fifth Amendment. At trials raising claims of entrapment, too, an undercover agent's training and experience often crop up as tools of the defense, simultaneously raising the risk that she veered into illegal enticement methods and, simply enough, entangling her in a fundamentally distasteful enforcement practice. In all these scenarios, though responding to distinct doctrinal and persuasive pressures, challengers look beyond the familiar association between expertise and authority, examining how an officer's professional proficiency might actually heighten the court's appetite for scrutiny.

These divergent strategies are not simply a matter of creative lawyering, exploiting similar rhetoric as either a shield or a sword against the police. Rather, their persuasive power reflects a tension between two fundamentally distinct conceptions of police expertise--and, by extension, expertise more generally--that pervade judicial reasoning about law enforcement: the difference between seeing expertise as a professional virtue or as a. professional technology. Echoing popular accounts of expertise as a prized currency in a technocratic culture, (6) the virtuous view imagines expertise as a presumptive institutional good. By this account, the expertise of public servants like policemen intrinsically entitles them to authority, either because it guarantees desirable enforcement outcomes or, simply put, because it is an achievement worth rewarding in itself. The technological view, by contrast, imagines expertise as a professional capacity that does no more--and no less--than facilitate the successful performance of investigative tasks, expanding the police's practical power in the field. Severing any direct link between expertise and legitimacy, this approach treats expertise as courts have long treated the more familiar technologies of policing, from thermal imaging devices to computer algorithms to sophisticated location trackers: as developments that reconfigure the delicate balance of power between the individual and the state, straining the constraints erected by the Constitution in a way that may predictably increase the need for oversight. (7)

This latter account may be thought of as an institutionally realistic view of expertise (8) - which is to say, it takes the notion of police expertise seriously, peering behind the technocratic veil to examine the particular content and context of such claims. Rather than embracing expertise as a generic good, that account examines how specific refinements to police proficiency shift the operations of law enforcement in any case. And rather than presuming a consistent relationship between expertise and legality, it examines how such refinements interact with the precise objectives served by judicial oversight, acknowledging that the courts' own criminal-procedure doctrines defend a variety of values, from accuracy to autonomy to fundamental fairness, that may respond very differently to the introduction of an "expert" police force. The technological view recognizes, in short, that in a legal system administered by multiple agents of the law, each guided by their own internal goals and pressures, the significance of police expertise cannot be presumed, and certainly not taken as a de facto right to deference. It rests, rather, on the interplay between such expertise and the values animating a given challenge: what it is that officers are expert at and how those proficiencies intersect with the goals--constitutional and institutional--upheld by judicial review in any case.

The courts' competing views of expertise illuminate debates about institutional competency and deference beyond the realm of criminal procedure. For one thing, those views reveal the extent to which our familiar associations between expertise and deference rest on an essentially virtue-based vision of expertise as a presumptive institutional good, one at odds with prevailing defenses of judicial deference to begin with. From legal philosophers to scholars of the administrative state, commentators have long distinguished between epistemic and authority-based theories of judicial deference: the former built on an agent's superior ability to ensure correct legal outcomes, while the latter rest purely on that agent's institutional status. (9) Given a choice, commentators universally embrace the first as the more legitimate, alone consistent with the courts' duties to vindicate the demands of the law. (10)

This Article reveals the instability of that distinction, demonstrating how readily, in a culture that valorizes technocratic achievement, claims of professional expertise accumulate a legitimating aura that supports their own essentially identity-based bid for deference. Well past the criminal law, in disputes ranging from prisoners' rights to university matters to disability-related challenges, critics have protested the tendency of expert claims to exact uncritical deference from judges, often despite the meager nexus between those claims and the legal questions at issue. (11) The virtuous model offers a novel lens on these disputes, attributing such judicial deference not to the courts' simplistic readings of institutional incentives or to...