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impaired when giving the statement, not unlike a per- son 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 inci- dent 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 everyone else does. However, officers are not treated the same as the average citizen, and this is not only wrong but also unconstitutional.
The best advice a criminal defense lawyer can give a client faced with a pending interrogation is to say noth- ing. Law enforcement officers know better than anyone that the court will dismiss any improperly obtained statements. However, the same cannot be said when the roles are reversed and the officer becomes the accused.
Officers are required to provide statements; otherwise, they will be terminated from their jobs. Their “defense” is provided at the earliest stage of the investigation. Conse- quently, prosecutors are given a significant advantage in the investigation. Knowing the defense, the prosecution can shape its entire investigation around defeating the officer’s defense and thus obtaining a conviction and an- other notch in the belt. Witnesses can be questioned in a manner designed to contradict or weaken the known de- fense. Specific evidence can be sought for the sole pur- pose of overcoming the defense. The prosecutors have the defendant officer’s entire playbook, and this is a tre- mendous advantage.
(Just ask Bill Belichick how it helped the Patriots throughout the years. The NFL came down hard on Beli- chick and the Patriots organization upon discovering the spy tactics being used to obtain opposing teams’ play- books.) 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 they have for decades. Politicians recognize the importance of maintaining a safe and civil environment for its resi- dents. Laws have been enacted, per the will of the peo- ple, providing 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, but our “leaders” are reluctant to acknowledge this fact. And we know they will never admit to creating the laws that sometimes require the of- ficer 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 to effectively maintain peace for their con- stituents. However, they are afraid to accept any respon-
sibility 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 we live in.
The danger going forward is ominous for any work- ing Police Officer. We know that every time officers re- sort to using deadly force, he or she 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 himself on an uneven playing field. Prosecutors will be allowed to narrowly tailor the in- vestigation 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 from prosecutors using statements that were illegally obtained by tortur- ing a suspect. Certainly everyone would recognize the horror in such a case, but it is legally indistinguishable from prosecutors using officers’ privileged and protect- ed statements.
I am confident the pendulum will eventually swing back to a place where law enforcement is considered equal to the rest of the society, but we are not there yet and the road will undoubtedly be bumpy. As White Sox announcer Hawk Harrelson says, “Cinch it up and hun- ker down.” d
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