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Memorandum of Understanding Between the National District Attorneys Association and the Department of Justice
I. Introduction
This Memorandum of Understanding is intended to foster a more cooperative approach by local, state and federal authorities in the investigation and prosecution of criminal deprivation of rights by law enforcement officers acting under the color of law and of hate crimes. It seeks to require early communication among local, state and federal prosecutors to explore the most effective way to investigate a specific “coordination-sensitive” case (defined below) and to utilize the best investigative resources or combination of resources available. As federal authorities are obliged to investigate all incidents that may be federal civil rights crimes, and local and state authorities have independent jurisdiction over such cases under their own criminal statutes, this MOU also should improve the reporting of all such violations to local, state and federal authorities; improve the mutual enforcement effort; and increase public confidence in this critical law enforcement area.
II. Goals
A. Primary Goals
- Improve coordination among local, state and federal prosecutors in coordination-sensitive cases from the beginning of the investigative process, so as to promote better investigations and to minimize the possibility that parallel investigative activities might compromise any resulting prosecution.
- Ensure that all criminal deprivation of rights by law enforcement officers acting under color of law (hereinafter, “color of law”) and hate crime allegations are promptly reported to local, state and federal prosecutors.
- Ensure that the special circumstances presented by allegations of color of law violations are properly addressed by our enforcement programs.
B. Anticipated Benefits
- Encouraged use of coordinated or joint local, state and federal investigations of color of law and hate crime matters in those instances where coordinated or joint investigation is in the best interest of justice.
- Decreased time delay between notification to parties to this MOU and their involvement in or declination of color of law and hate crime matters.
- Increased public confidence in the criminal justice system as it relates to the enforcement of civil rights.
- Fewer incidents of real or perceived institutional bias, conflict or prejudice that could impact the integrity of color of law investigations.
III. Parties to the Memorandum
This MOU has been negotiated by the National District Attorneys Association, on behalf of state District Attorneys, hereinafter referred to as (“DAs”), the Criminal Section of the Civil Rights Division (“Criminal Section”), and the United States Attorneys Offices (“USAOs”).
This memorandum is not mandatory in its application but is a recommended and preferred approach to conducting investigations covered by this MOU. Each sovereign must determine whether these recommendations are appropriate on a case by case basis.
IV. Coordination-Sensitive Incidents Defined
Some incidents have implications that warrant immediate communication and coordination among local, state and federal prosecutors at the beginning of the investigative process. Those coordination-sensitive incidents include incidents where:
- A serious injury to person or damage to property has occurred, and there are substantial relevant differences between applicable federal law and state or local law, such as the law of one jurisdiction would permit the introduction of critical evidence, while the other would not; or the sentence most reflective of the seriousness of the crime is available in only one of the jurisdictions; or a federal prosecution or investigation can preclude a local prosecution or investigation.
- An important public policy consideration is presented or foreign policy is implicated, such as violence by organized militia or racist supremacists or the killing of a foreign national by a law enforcement officer.
- The incident itself, regardless of its potential prosecutive merit, may provoke or has provoked instability in the community or substantial negative community reaction, such as a controversial police beating that has attracted significant media attention in the community.
- The investigative and prosecutive resources required by the case appear to the parties to this agreement to be greater than resources available to local and state authorities, such as in a series of violent acts in different jurisdictions or one violent act with a large number of witnesses from other jurisdictions, or where a need for extensive forensic analysis exists.
- A potential color of law violation or hate crime is perceived by a local, state or federal prosecutor to he a coordination-sensitive case for some reason not indicated above.
V. Coordination Among Local, State and Federal Law Enforcement Authorities
A. Coordination and Designation of Points of Contact
- The USAOs, working with the FBI, through their field offices, should establish closer relationships with local law enforcement and relevant community groups to assure that potential color of law violations and hate crimes are promptly identified and investigated. The Attorney General of the United States has asked all United States Attorneys to create or expand existing Hate Crimes Working Groups to involve federal, state and local law enforcement, as well as community leaders, to develop a comprehensive approach to hate crimes. This MOU supports this new federal initiative and intends to extend its provisions to improve coordination among local, state and federal authorities in color of law cases, as well as hate crimes.
- Each DA should designate an attorney point of contact (“POC”) for criminal civil rights matters and provide the name, telephone number and pager number to the USAO.
- Each USAO should provide the name, telephone number and pager number of its designated attorney POC for criminal civil rights matters to all DAs within that federal district, the FBI field office, and the Criminal Section.
- The Civil Rights Division, Criminal Section deputy chiefs and duty attorneys will be available to provide immediate assistance concerning substantive and legal issues in color of law and hate crime matters and should be immediately contacted by USAOs concerning criminal civil rights matters. The Criminal Section will provide to the USAOs the names of the deputy chiefs and the federal circuits for which they have responsibility. Criminal Section staff can be contacted at 202-514-3204 or after hours through the Justice Command Center at 202-514-5000.
B. Reporting Systems
All incidents that may present a criminal violation of the federal deprivation of rights under color of law and hate crime statutes are covered by this MOU and should be reported to local, state and federal prosecutors. As to all such incidents, reporting systems, compatible with the uniqueness of the local, state and federal law enforcement resources in each federal district, should he developed that:
- Ensure that all incidents covered by this MOU are reported to law enforcement authorities and that members of the public know how and where to report allegations;
- Ensure that all allegations of incidents covered by this MOU are properly recorded, reported and preserved by the law enforcement agency receiving the information.
For potential color of law violations, reporting systems should:
- Ensure that all color of law incidents covered by this MOU are reported to all POCs, regardless of the perceived seriousness or merit of the allegation;
- Ensure that local law enforcement departments have mechanisms to solicit, accept, record and report to DAs and to federal law enforcement all color of law allegations. This may include, but should not be limited to, a proper logging system for complaints or special phone number/hotline for complaint intake.
C. Consultation on Coordination-Sensitive Matters
- In the case of coordination-sensitive incidents as defined by this MOU when either a local, state or federal authority learns of a coordination-sensitive incident, that party should contact the designated POC for the other parties to this MOU as soon as feasible, ideally within 24 hours after learning of the incident, identifying the subjects of the investigation, the factual allegations to be investigated, and possible statutory violations.
- The Criminal Section, USAO and DA, upon learning of a coordination-sensitive incident as defined by this MOU should consult within the first 24 to 48 hours of learning of the incident to discuss investigative and prosecutive strategies.
- Following this consultation, the Chief of the Criminal Section, the US Attorney and the District Attorney should consult or meet with local, state and federal investigative agencies and conduct a “case assessment” to determine the usefulness of a coordinated or joint investigative strategy. From this consultation should emerge agreement about whether or not to conduct a coordinated or joint investigation. During the “case assessment,” consideration should be given to the factors set forth in sections VII and VIII below.
VI. Importance of Prompt Investigative Decision-Making
In coordination-sensitive cases as defined by this MOU it is essential that investigations not be delayed. After the consultation required for coordination-sensitive incidents by Section V.C. above, the local, state and federal prosecutors should promptly advise each other of their intention to either decline prosecution, conduct an investigation independent of the other prosecutive authorities, or adopt an agreement to conduct a coordinated or joint investigation.
VII. Suggested Options for Coordinated or Joint Investigations
A. Considerations
If a coordinated or a joint investigation will be conducted, certain issues regarding the conduct of such investigations should he resolved before an investigation is begun. No two cases are alike, and local, state and federal resources vary considerably from area to area. Accordingly, there is no single model for a joint investigation. A variety of possible cooperative or joint investigative measures may be appropriate in a specific case.
For example, local law enforcement investigators could work jointly with federal investigators, reporting to one or the other of the prosecutive authorities or both. It might be appropriate for them to investigate as joint teams or more useful to divide areas of responsibility between law enforcement entities. Federal forensic assistance to the local investigation may be all that is required of federal authorities in a given case. A federal grand jury could be used to investigate the incident with local and federal investigators assisting the investigation. A local or state prosecutor could be cross-designated to work with the federal grand jury. Or, the local or state grand jury could be utilized with federal assistance to that effort. The best arrangements will vary with each case and each law enforcement community.
B. Separate Investigations
If circumstances indicate that a real or perceived conflict, prejudice or institutional bias could compromise the integrity of the investigation, or if the best interest of justice is served, either the local authorities or the USAO and Criminal Section may decide that separate investigations are appropriate.
C. Dual Sovereignty
Prosecutive autonomy should be retained by each sovereign to preserve, when possible, the option of successive prosecutions under the dual prosecution doctrine.
Mere cooperation between federal agents and state agents does not raise a bar, under federal law, to dual prosecution unless a court finds that the cooperation was improper collusion, operating as a “sham” to support a second prosecution. See Bartkus v. Illinois, 359 U.S. 121 (1959). Instead, federal courts encourage cooperation between different sovereigns in a nation-wide effort against criminality. A variety of cooperative efforts can work, as long as one sovereign is not dominated by another or their functions are so blurred and intertwined that distinctions between the two sovereigns can no longer be made. State laws vary on this issue and should be consulted as well.
VIII. Conducting Coordinated or Joint Investigations: Suggested Procedures
A. General
If a coordinated or joint investigation is warranted, prosecutors and investigators promptly should reach agreement regarding how to conduct the investigation, including designating who are subjects and who are witnesses; determining the order in which witnesses should be interviewed; deciding how to staff, conduct and document interviews; selecting areas or topics to be addressed in interviews; identifying investigative leads to be developed; handling forensic evidence, and using a grand jury.
Examples of the issues that may be pertinent to a coordinated or joint investigation and suggestions to resolve those issues are:
- It may be useful for efficiency and effectiveness to designate one investigative agency as the lead agency for the investigation.
- Witness interviews can be jointly conducted to avoid duplication of efforts and the creation of additional and possibly conflicting discovery material.
- Documenting witness interviews is extremely important not only to avoid duplication that may impair a potential prosecution, but also to insure that an accurate record exists of every interview. All reports of investigation can be drafted by a single investigative agency if multiple agencies are involved in any particular investigative activity. The agency designated, by agreement, to write the report of an interview can submit a draft copy of the proposed report to all other investigative agencies that were involved in the interview to review in order to insure that the final report of the interview is complete and accurate.
- All notes taken by investigative agents and officers should be retained.
- The prosecutors and investigators should discuss and agree upon the manner in which interviews will be conducted. There should also be an agreement concerning the collection, preservation and scientific analysis of physical evidence. Special consideration should [be] given to the procedures for handling physical evidence which may later be submitted for scientific testing.
- Periodic briefings should be held by the lead investigators/agents for the benefit of the DA, the USA, and the Criminal Section as often as necessary or as agreed to by the parties.
B. Color of Law
Incidents of alleged color of law violations present additional and unique investigative and prosecutive considerations.
- Often an administrative investigation by the subject officer’s agency precedes a criminal investigation. To prevent the adverse impact upon a potential criminal prosecution of exposure to compelled statements, any administrative investigation that is in progress should be immediately suspended and no further compelled statements taken, without the approval of the prosecutors. If compelled statements have already been obtained, measures should be implemented to prevent those statements from tainting the continuing criminal investigation.
- Because institutional knowledge of practices and procedures relevant to color of law investigations often resides within the subject’s own agency, the participation of investigators from the subject’s own agency is frequently important. At the same time, however, the investigation must be conducted in a manner that avoids the reality or public perception that the investigation is biased in favor of the subject officer.
C. Prevention of Community Unrest During Investigation
The Community Relations Service (CRS) should be contacted by either the USAO or the Criminal Section as soon as possible after the investigation is under way to determine whether CRS’s, immediate or long-term participation could he useful to ease tensions within the community.
IX. Conclusion of Coordinated or Joint Investigation: Prosecutive Decision
At the conclusion of the coordinated or joint investigation, the USAO, the Criminal Section and the DA should consult concerning the need for additional investigation, the strength of the evidence, the appropriate prosecution venue, charging options and possible range of punishment. Consideration should also be given to staffing issues, including cross-designating prosecutors, where appropriate. Since federal law will permit a subsequent federal prosecution after a state prosecution arising from the same facts, but the law of some states will not permit state prosecutions following federal ones, that factor should be a consideration as well.
- The existence of a joint investigation does not presume that a joint prosecution will result and a decision to undertake separate prosecutions may result in additional investigation being undertaken separately. Further, where there are multiple subjects of an investigation, it may be appropriate that one or more subjects be prosecuted in local or state prosecutions, while one or more other subjects be prosecuted federally.
- When considering plea strategies, where a subject can be charged under both local or state law and federal law, it can be useful to approach the subject and his attorney before charges are brought to discuss the possibility of a plea in only one jurisdiction.
- If there is no agreement among the local, state and federal prosecutors concerning the prosecution, separate state and federal prosecutions may result if the evidence warrants such action and if such action is in the best interest of justice.
- The joint prosecution decision should be announced as soon as feasible. A coordinated press release or news conference should be considered.
- If it is agreed that state prosecution is appropriate and that federal prosecution should be initiated only if federal interests are not vindicated by local action, the USAO and the Criminal Section should remain in contact with the DA to continue to evaluate the vindication of federal interests and/or the need for additional FBI assistance.
- The CRS representative should he notified prior to any public announcements concerning prosecution decisions or other information which may heighten community tensions.
X. Color of Law Remedial/Preventive Efforts
- When appropriate, the USAO, the Criminal Section, or the DA should ask CRS to offer on-site cultural and diversity training, and other relevant programs, at police departments, schools, religious institutions and other sites.
- The parties to this agreement should help promote dialogue between the community and state and local law enforcement. The dialogue should explore, among other things, the role of the community in preventing and investigating allegations of color of law incidents.
- The parties to this agreement acknowledge that increased training, effective complaint intake, improved investigations, more aggressive preventive and disciplinary actions by law enforcement agencies and criminal prosecution, when appropriate, can reduce incidents of color of law violations. Accordingly, the parties will work to strengthen preventive, investigative and prosecutive measures related to color of law cases. When additional assistance might be helpful, prosecutors should contact the Criminal Section and request consultation on these issues. Should any prosecutor find that the above areas are lacking to a degree that impacts their ability to investigate and prosecute color of law matters, the prosecutor should notify the Criminal Section.
- The parties to this agreement should ensure that all color of law complaints are recorded and ultimately reported to the FBI for both investigative and data collection/analysis purposes.
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