Should the oversight entity have subpoena power?

  1. Independent oversight agencies need the ability to obtain necessary information in order to be an effective overseer.  Depending on the enabling legislation, this may include compelling testimony or evidence.   However, access to this information from the police department may be achieved through either organizational structure or subpoena power or both. Police departments can, and often do, issue a general order compelling full cooperation with administrative investigations.

  2. Where subpoena power is often most useful is to compel information from witnesses outside the police department. For example, a thorough investigation may require compelling the production of CCT video at or near the site of an incident. Such evidence often proves dispositive.

  3. Some Internal Affairs departments may refuse to subpoena evidence from police officers they are investigating. This limitation can severely impact an investigation and result in an unnecessarily inconclusive outcome. For example identified police officers may have used their personal cell phones in the process of violating policies and procedures—obtaining these records is necessary if the investigation is to be thorough and objective.

  4. Subpoena power is only one of many tools in the toolbox and many older oversight agencies do not have it. [1]  Furthermore, obtaining subpoena power and issuing subpoenas do not come without challenges and also require the ability to be able to take the matter to a court of law to enforce the subpoena. It is important to note, that if you are unable to obtain subpoena power, you may simply have to work around the barrier and obtain information through other sources.

  5. Trying to secure subpoena power by the oversight entity can involve lengthy negotiations or even court battles with officers’ unions or police agencies that consume significant time and cost. Some even question whether having subpoena power serves any useful purpose[2].  In order to protect the rights of police officers, federal courts limit who can force officers to testify and when that testimony can be taken[3].  If the oversight agency lacks the ability to compel officer testimony, subpoena power often adds nothing.  Moreover, in some jurisdictions, state courts further curtail subpoena power, which has limited some agencies power to issue administrative subpoenas to those issued by approval of a court[4]. Make sure to check your own jurisdiction to see whether there are any additional limits in place.

  6. If you are able include subpoena power in the agency’s enabling legislation, by all means, include it.  If you are unable to, this is not a roadblock to effective civilian oversight. 

[1] Peter Finn. Citizen Review of Police: Approaches and Implementation, 99-100 (Nat’l Institute of Justice 2001).

[2] Id.

[3] Garrity v. New York, 385 U.S. 493 (1967)

[4] See State v. Miles, 160 Wn. 2d 376 (2006).