I believe experts are correct but as Grits points out, why don’t we extend this same policy to suspects in shootings? What’s good for the goose is good for the gander. Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying. After this change in policy the best Dallas criminal defense attorneys will try to use this policy in their cross-examinations of Dallas Detectives. The new policy also allows the police officer the privilege of reviewing any video tapes of the incident. Dallas Criminal lawyers should also use this fact during cross-examinations.I'm not sure Chief David Brown fully thought through the implications of this policy before he quietly changed it in deference to the police union.
Thursday, December 05, 2013
Shook: New Dallas PD policy on police shootings will be used against detectives in court
Reacting to this Grits post, former Dallas DA candidate Toby Shook says the Dallas PD's new policy to give police officers three days before answering questions about police shootings, ostensibly based on expert advice claiming it would make their memories more accurate, will be used against the department when their detectives are cross-examined in court. He writes:
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26 comments:
State action rarely takes into account the unintended consequences.
One crucial element seems to be forgotten here and that's that few judges will allow that line of questioning. Prosecutors will object, judges will abstain, and that's the end of that.
To plays Devil's Advocate, maybe the 72-hour delay is not such a bad idea. Maybe the 72-hours is needed NOT to improve memory recall, but rather to give the officer time to assess the consequences of giving false or misleading statements FOLLOWING a highly stressful situation.
I'm not LE, but I'm assuming there is a knee-jerk reaction for an officer being questioned immediately after a shooting whereby he/she will paint the best possible picture for their actions, denying accountability, and perhaps intentionally omitting pertinent information (which later can be blamed on faulty memory, but isn't really.)
The 72-hours can be used by the officer to decide (based on his/her professional ETHICS) what is more damaging to their career and the public's perception -- discharging a firearm in the line of duty, or the lying and cover-up after the fact?
Reviewing any video of the incident doesn't do crap for memory, but it may convince an officer to retain their ethics and professional responsibility towards providing a thorough and honest recollection of the unfortunate event.
3:10, why couldn't you make the same arguments about suspects?
@3:00 discussion of the investigative technique and policies are relevant to the weight of the evidence gathered against the defendant and these specific policies have due process and equal protection implications. An agency that investigates a shooting differently depending on the shooter's affiliations should be able to give bonafide reasons to support the practice. Fishermen and Lumberjacks have more dangerous jobs than cops, so let's not keep giving cops a pass when they "feel threatened" without it being reasonable. This shoot first ask questions later bs needs to stop.
Should be standard practice then for every person involved in a shooting: No statements for three days and full access to all records of the incident, electronic or otherwise.
Even after seeing the video in the Dallas case that brought about these changes, the non-shooting officer still gave a false statement (trying to take away any blame from the shooting officer and still claiming that the suspect did lunge at the officer with a knife).
Why didn't his memory improve?
Also, if we have to wait for memory to improve in cases with police shootings, why shouldn't we also have to wait for officer statements in other cases? Why should any charges be filed the "day of" an arrest or other incident knowing that an officer doesn't know the truth of a situation until 72 hours later?
Ahhhhhh, we open a sticky wicket when we allow officers 3 days to get thier story right, if we do this, I can't see any reason not to do so for defendants (what's fair is fair) then how many cases will have to be re opened because those defendants did not get 3 days and cops had them in investigation rooms (the box) and sweated them for confessions. Hey we gotta be fair about this. Or do we say cops have 3 days and that's it. Defendants go to hell. It will take about 15 minutes for the appeals to start flowing to every circuit court in the nation. This boys and girls is a bad idea and if we do it, it will be a huge cluster pluck.
It'll still be used by prosecutors more. Their witnesses will say one thing at the scene, and then, when they change their story to fit the prosecution's case, they'll argue that they're still credible because "experts say so."
That'd be witness tampering if defense lawyers did it, but the playing field has never been even anyway.
Rage
There shouldn't be a double standard. If the police officers get 3 days to straighten their stories so should the defendants. It seems completely unfair.
Maybe I'm missing something, but a suspect has a right to remain silent for any duration be it...6 hours, 3 days, or for 18 months. Telling the officer he HAS to talk at the end of three days is a different story.
the diff Michael is the non law enforcement suspect will spend that time locked in a little room while the cops scream, lie and anything else to get him to change his mine.
Not at home with his lawyer reviewing all the evidence including VIDEO to get his lieing statement straight!.
Sorry it is witness tampering and conspiracy to commit witness tampering. Feloney's all!
Therefore the chief is now a felon.
Rodsmith, you clearly haven't been an officer involved in a political hot potato case then. IA most certainly will place an officer in a small room, interrogate him endlessly, and scream on occasion. The difference is, while a civilian can always invoke the 5th, the officer will be threatened with the loss of his job, livelihood, and even criminal charges where no law was broken. Happens all the time in big cities, civil service protection be damned.
Again, there has always been a double standard on this; those employed as police officers forced to provide a statement while those who are not can simply say no. As far as the actual benefit of waiting a few days for someone involved in a major event to provide a more coherent statement, I suspect it should work for both sides of the coin as it were. I'd rather have a good statement than a jumbled mess by someone drunk, high, or otherwise hopped up on circumstances when investigating a criminal act just as I'd rather an officer be allowed to decompress a little before flapping his gums in the heat of the moment.
that is true 9:39 I have not. but I have watched 1,000's upon 1,000s of officers be involved in shootings, assaults, rapes and any number of others actions that if done by a so-called "civilian" end up with nothing more than a pat on the head in most cases if not an out and out promotion.
The stupidity shown by this chief does not help their case that they are fair and even.
@Rodsmith
I don't know if many people can honestly say that they have encountered "1,000's upon 1,000s of officers" even in passing, never mind committing all these crimes you allege to have personally watched so forgive me if I take your comments with a large amount of salt. Officers are people too and subject to the same issues we all are, none that I know of being close to perfect.
Other than the fact that no major police agency in the country promotes as you suggest, the blanket statements about how "civilians" are treated differently (keep in mind you left out some verbiage to that effect this last time) is based on different circumstances. In most cases, the officer is present at a location because he is called there in response to a service call where he is to take some measure of official action. As such, most don't automatically assume he is there to do ill to someone (other than maybe some haters). The degree of benefit of the doubt you apply to the police AS WELL AS those they encounter is what provides such contrast. If you automatically assume the police are wrong no matter what the circumstances, you are just as wrong as those who automatically assume the civilians are wrong in every case or that some imaginary statistical process can decipher normative amounts of shootings without looking at the details.
What is being discussed is the allowance of a period of time for those civil servants to make sure they dot their "i's" and cross their "t's" more than cover up any wrongdoing. Unlike the civilian, the officer is under additional scrutiny for civil and policy considerations. Until you've been in their footsteps, you will never know what it is like to get in trouble for some accidental policy violation while putting your neck on the line for an ungrateful audience. As such, I understand the basis for the waiting period and concur such a time frame for suspects in custody may be appropriate.
Different circumstances Rod. The cops are always different.
What i'd like to say is don't forget the third group who'd like 3 days. The witnesses on the scene - who may be victims too.
Let's give them 3 days to talk when they may die before that time.
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lava
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the think of it 3:08 is I don't think all cops are bad. I know some very nice ones. I know that just like most fields 10% or so are bad apples. Just like every job. But in law enforcement the bad apples are protected and in a lot of cases promoted unless iron clad video shows up and goes national otherwise even then it is disregarded.
as for the 72hr rule I don't have a problem with it IF it's universal. If cops get it. EVERYONE else does too. But the ideal that they will get access to video and others statements BEFORE they give their own is both CRIMINAL STUPIDITY and nothing but witness tampering and a FELONY conducted by the chief.
@rodsmith
I've known a great many officers over the last 50 odd years and I would call any single one of them for help before I would call the majority of bloggers on the net. To suggest that anything close to 10% are "bad" (you must have a curious definition of the term) or that "1,000's upon 1,000s of officers" did something wrong when pressed to take action is contrary to my experiences as a family member and an employed LEO.
The suggestion that every shooting is a coverup or, as has been claimed on this blog in the past, some of the pure hatred spewed forth about them gives me pause. Most people seem to get their personal knowledge of police from movies and TV, those fictional exploits always being from the imagination of a Hollywood writer more than reality. This doesn't mean I'm wearing rose colored glasses either, it is just my extensive experience.
Those that cause harm or do wrong almost always get caught in the end, making the news because they are the exception rather than the norm. And I'm not suggesting the public should have no oversight of how we do our job, just that a modicum of reasonableness is applied when some of you engage in your all too frequent Monday-morning quarterbacking. I have no doubt some shyster thinks he will be able to use the stated policy against police in court, they always seem to think of a new way to twist things in their favor (it's part of our system, love it or not). I seriously doubt it will go as planned but again, that too is based on more experience in the field than many of you will ever have, and I'm not opposed to leaving someone in jail until they give a statement if that is what they want.
Anon@3:07, "an employed LEO" who has no problem "leaving someone in jail until they give a statement" says a lot about your mindset and lack of concern for following the law and Constitutional protections of civil rights. If you are going to enforce the law you should learn the law. You probably also think it is ok to withhold evidence that hurts your case and make up facts when you are sure in your limited mind that the suspect is guilty. Please read the 5th and 4th Amendment, the exclusionary rule, Brady v Maryland and Texas Code of Criminal Procedure 38.23. These are the most frequent areas violated by LEOs...mostly out of ignorance and zeal to get "guilty" people convicted. I am fine with eliminating the exclusionary rule as long as LEOs are fine with going to jail when they get caught fabricating and perjuring. Unfortunately prosecutors don't have much incentive to go after LEOs with low credibility even when there is strong evidence of untruthfulness, because of their unholy alliance in pursuit of convictions rather than justice and integrity of the system.
@Anon7:40
Interesting strawman argument you made there. The key phrase was "if that is what they want". As for the rest of your rant, projecting like you do for the rest of the posting speaks volumes as to what you think LEO's do, not what they do in practice.
I do not recall anyone in the entire thread suggesting fabricating evidence, lying, or otherwise breaking the law in order to obtain convictions is a swell thing to do or advocate doing so under any circumstances.
Anon 3:03, better lying and fabricating of evidence is what this 72 hour rule invites. The officer who shot the unarmed man and his partner who lied would have simply made a better lie had they been allowed to see the video before making statements. That those two are still officers is a travesty, because they are a danger to the public and unreliable as witnesses in any case they bring. I would agree that very few officers would try to convict a person they believe to be innocen, but to save their own bacon or convict someone whom they believe is guilty and are using the exclusionary rule...many will lie with impunity, while prosecutors refuse to look at their testimony critically.
Anon 3:22, other departments have a similar rule yet the end of the world has not arrived. There is no basis for the "many will lie" or for the belief that prosecutors necessarily turn off their critical facilities under said circumstances.
Just search You Tube and you will find the basis you claim does not exist. The police frequently lie when they are unaware of evidence that will contradict their self serving version of events. Police are rarely charged when their story blows up on them in the trials of those they have abused. Victims are left only with civil recourse because prosecutors turn a blind eye to liars who support their cases and withhold evidence of innocence as they did for decades in the Morton case and others who have since been cleared. My personal basis for believing that many will lie is rooted in the cases I have tried or had suppression hearings where the officer claims video malfunction to explain lack of video and then no record of any repair, maintenance or replacement of the defective unit much less any documentation of the malfunction. My last trial had two officers in two separate units both claim malfunctions with no supporting evidence. Then my next suppression hearing in another case...same thing. I have had multiple cases where in spite of subpoenas and letters requesting retention of video and other evidence they were "accidently" lost or discarded. Another case where the officer conducted illegal searches video showed this to be the case as well as showing that the drugs found belonged to the passenger and not my client went on for almost a year because they would not turn over the video for over six months. Then they would not turn over files that showed this officer had been caught by DAs lying about PC in two of my previous cases with him that were dismissed with no charges against the officer. My experience though not vast by any means leads me to believe that cops know they can lie with impunity and do; and that prosecutors are ok with keeping cops off of Brady Lists that should be shared with the defense.
After the HPD chief hit a pedestrian with his car, his spokesman put out a statement that the pedestrian suddenly stepped off the curb. The video which he was unaware of showed that the pedestrian was two thirds acros the street and had the light. The Chief took a one day suspension. What for? Having an accident? He lied about the facts because he thought he could get away with it. He got caught. He does not possess the credibility to hold his position. Nor does the cop who lied in the shooting of the man who did not lunge with a knife. Fifteen day suspension for a liar in a shooting, one day for a liar in a car accident...no criminal charges for lying to authorities and obstructing justice? No prosecutor willing to step up? These are examples of people who are called upon to give testimony in court and the system is just fine letting them continue doing so as if they were fine upstanding officers who are more credible than those they would accuse. No, the 72 hour rule will be abused. Let them speak up, tell their lies and then get their asses busted when the video shows they were lying. It's not like they will do much to them anyway.
Anecdotal evidence aside, the statistician in me tells me that there may be other issues, perceptual (your take on something is simply different from that of the officer or even both of you are mistaken) or client based. Not all errors are "lies" in my experience, far more likely to be mistakes or misunderstandings. And that applies to the folks I've dealt with who often thought they broke the law when they did not, making it hard to convince them why I wasn't citing them.
As far as the HPD Chief, you have no idea if the spokesman simply screwed up what he was told third hand or any number of other communication errors. Those would still be the fault of the Chief on some level but not the fault in a deficient character as him lying would be. By all means hang him high for falling short, just give him a fair shot at the truth, many telling me his eye sight is getting so poor that he might well have meant what was reported.
Regarding the issue at hand, I'm with others that think it would be fair for both sides to have a calming period rather than cut off one or another. Our memories, even on a great day, are not as infallible as we like to think they are (any of us). That civilians never have to speak with police at all means they always have a huge advantage in such dealings, the simple fact being that people lie in hopes of getting out of stuff. Is that exclusive to civilians, no.
The sweeping generalities some of you use discredit what you have to say. Sorry, I no more believe that every/most/many cops are liars than I believe every/most/many defendants were railroaded by a completely corrupt system. Some people got a bad deal and some cops are less trustworthy than others but as someone who has served on juries in the past, it becomes obvious who lies when they take the stand.
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