Investigating and Presenting an Investigative Omission Defense

Criminal Law Bulletin, Vol. 57, Forthcoming

38 Pages Posted: 15 Sep 2020

Date Written: July 30, 2020


This paper explores defense challenges to the adequacy of police investigations, and investigative lapses as a cause for reasonable doubt. It focuses on case law from Massachusetts, which has four decades of state appellate case law about investigative omission evidence and jury instructions. It talks about the constitutional nature of the defense, how it differs from third-party culprit defenses, and evidence issues that may arise.

The paper also discusses cognitive biases that can affect even well-trained, experienced police investigators and/or prosecutors. Tunnel vision, confirmation bias, and other mental shortcuts can lead to investigative lapses when evidence that the defendant is not the culprit is mentally ignored or downplayed.

Keywords: Criminal Defense, Cognitive Bias, Investigative Omission

JEL Classification: K14

Suggested Citation

Steele, Lisa, Investigating and Presenting an Investigative Omission Defense (July 30, 2020). Criminal Law Bulletin, Vol. 57, Forthcoming, Available at SSRN: or

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