ALL ARE NOT EQUAL WHEN IT COMES TO THE 5TH AMENDMENT
Police officers are being treated as a sub-class of citizens when it comes to the law. The Fifth Amendment of the Constitution and the Due Process Clause of the 14th Amendment provide that no one shall be compelled to be a witness against himself via incriminating statements. Every citizen is afforded the right of refusal to answering questions about their involvement in a potential criminal incident. Police officers are being deprived of this fundamental right and nobody seems to care.
Recently, a federal court ruled that statements made by a Chicago Police officer made shortly after being involved in a shooting are not privileged and fair game for the prosecution to use in its investigation. The court ruled that even if the statements were protected, they were admissible because of the doctrine of inevitable discovery. This has given prosecutors an enormous advantage and has stricken a serious blow to an officer’s defense. As an initial matter, the officer is effectively “locked in” to their testimony. Every criminal defense attorney knows that a client’s testimony must be prepared based upon a review of all the evidence. This is not deception but rather quite the opposite. Scientific studies have proven that an officer involved in a deadly force encounter will be unable to accurately recall the precise details of the situation leading to the decision to use force. This is due to a number of realities including the effects of increased adrenaline present in these types of encounters. Studies have shown that a person needs at least two full sleep cycles before the adrenaline levels subside enough for an officer to accurately recall the critical details of the event. This is precisely the reason that federal law enforcement officers are provided 72 hours before being compelled to give a statement. The result is a more accurate statement, which should be a desired result for all parties. Local departments generally do not have the same luxuries as do their federal counterparts. In most departments officers are required to give their statements within hours after a shooting. Accordingly, the officer’s statement will be impaired, not unlike a person who is intoxicated. What is more, officers experience focal vision, commonly referred to as tunnel vision and auditory exclusion to varying effects. It should come as little surprise that an officer’s initial account of an incident will always be contradicted in some way by a video. Police officers are not robots. They are human beings who experience the same physical effects on the body as does everyone. However, officers are not treated the same as the average citizen and this is not only wrong but unconstitutional.
The best advice a criminal defense lawyer can give a client faced with a pending interrogation is to say nothing. Law enforcement officers know better than anyone that any statements obtained improperly will dismissed by the court. However, the same cannot be said when the roles are reversed and the officer becomes the accused. Officers are required to provide a statement otherwise they will be terminated from their jobs. Their “defense” is provided at the earliest stage of the investigation. Consequently, prosecutors are given a significant advantage in its investigation. Knowing the defense, the prosecution will be able to shape its entire investigation around defeating the officer’s defense and thus obtaining a conviction and another notch in the belt. Witnesses can be questioned in a manner designed to contradict or weaken the known defense. Specific evidence will be sought for the sole purpose of overcoming the defense. The prosecutors have the defendant officer’s entire playbook and this is a tremendous advantage, just ask Bill Belicheck how it helped his Patriot teams throughout the years. The NFL came down hard on Belicheck and the Patriot organization upon discovering the spy tactics being used to obtain opposing teams’ playbooks. Unfortunately Constitutional violations against police these days do not merit the same reaction.
The fact remains that police officers are going to use force, including deadly force against individuals as it they have for decades. Politicians recognized the importance of maintaining a safe and civil environment for its residents. Laws have been enacted, per the will of the people, which provide law enforcement the legal authority to use force in various situations. Considering how our politicians cave at the first sign of resistance expressed by certain groups following a shooting, one could easily conclude that these laws have been rescinded. Of course they remain in full effect; our “leaders” are reluctant to acknowledge this fact. And we know that they will never admit to creating the laws which required the officer to use precisely the amount of force that they now condemn. After all, they are in a tough position. They recognize that police officers must be allowed to use deadly force in order to effectively maintain peace for its constituents. However, they are afraid to accept any responsibility when an officer utilizes force in compliance with the governing laws enacted by the politicians. While it is unconscionable for our leaders to act in such a cowardly fashion, it is the reality within which we live.
The danger going forward is ominous for any working police officer. We know that every time an officer resorts to using deadly force, it will be investigated for criminal charges. Most will not result in a criminal case; however many will and every officer charged will be forced to defend themselves on an uneven playing field. Prosecutors will be allowed to narrowly tailor its investigation centered on the officer’s defense. This is an unfair advantage and precisely why the framers of the Constitution created the right to remain silent. From a legal standpoint this is no different than prosecutors using statements which were illegally obtained from torturing a suspect. Certainly, everyone would recognize the horror in such a case but it is legally indistinguishable from prosecutors using officer’s privileged and protected statements. I am confident the pendulum will eventually swing back to a level in which law enforcement is considered equal to the rest of the society; however we are not there yet and the road will undoubtedly be bumpy. As White Sox announcer Hawk Harrelson says, “Cinch it up and hunker down.”