Page 22 - August 2017

All are not equal when it comes to the Fifth Amendment
Police Officers are being treated as a sub- class of citizens when it comes to the law. The Fifth Amendment of the Consti- tution and the Due Process Clause of
the 14th Amendment provide that no
one shall be compelled to be a wit-
ness against himself via incriminating statements. Every citizen is afforded
the right of refusal to answering questions about their involvement in a potential crim-
inal 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 shortly after being involved in a shooting are not privileged and are fair game for the prosecution to use in its investigation. The court ruled that even if the statements were protected, they were ad- missible 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 re- view of all the evidence. This is not deception but rather quite the opposite. Scientific studies have proved that an officer involved in a deadly-force encounter will be unable to accurately recall the precise details of the situation leading to the deci- sion 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 them to accurately recall the critical details of the event. This is precisely the reason that federal law enforcement officers are provid- ed 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 lux-
uries as their federal counterparts. In most departments, officers are required to give their statements within hours after a shooting. Accordingly, the officer will be
FOP
Legal Rep t
DANIEL HERBERT
22 CHICAGO LODGE 7 ■ AUGUST 2017