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After A Shooting, Should Your Statement Be Voluntary Or Compelled
By
Dieter C. Dammeier
LACKIE & DAMMEIER
LLP
Most often, one of the
more debated issues in the aftermath of an officer-involved shooting is
whether the officer will provide a “voluntary” statement or demand that
he be ordered to provide a statement, making it “compelled.” Over the
years there have been several reasons given to support or oppose making
a voluntary statement after an OIS. Before getting into these various
reasons, it is important to understand what is a “voluntary” statement
and what is legally deemed to be “compelled.”
A statement will be
deemed compelled if it is “obtained by threats or promises of leniency,
whether express or implied, however slight, or by the exertion of any
improper influence.” People v. Ramos, 2004 WL 1909423. It is
well settled that a threat of insubordination for failing to make a
statement (or write a report) will make the statement compelled.
Alameida v. State Personnel Bd., (2004) 120 Cal.App.4th
46.
Why would an officer or
his attorney insist on the statement being compelled? The most
important reason is that a “compelled” statement may not be used against
the officer in any criminal proceeding. Lybarger v. City of Los
Angeles, (1985) 40 Cal.3d 822. A “compelled” statement may also not
be used in any State Court civil proceeding. It is clear with
these legal protections, why many officers and their representatives
stand firm on not making a voluntary statement and getting the agency to
order a compelled statement.
Some of the reasons
offered over the years for making or not making a voluntary statement
are discussed below.
The District Attorney’s
Office requires a “voluntary” statement.
Most officer involved
shootings are investigated by an outside agency, such as the Sheriff’s
Department or District Attorney’s Office who always raise this issue.
While the District Attorney’s Office may inform investigators that they
would like “voluntary” statements, they nevertheless are entitled to
review your compelled statement ordered by your Department. A myth in
this area often utilized by investigators to obtain voluntary statements
is that the District Attorney’s Office cannot look at a “compelled”
statement. That is simply inaccurate. Penal Code §832.7 (a)
specifically allows “a grand jury, a district attorney’s office, or the
attorney general’s office” to review “investigations or proceedings
concerning the conduct of peace officers,” which would include of course
the officer’s compelled statement following an OIS. The district
attorney offices in Los Angeles, San Bernardino, and Riverside County
have all utilized this provision to review “compelled” statements after
officer involved shootings where no voluntary statement was provided.
The only reason the District Attorney’s Office presses its investigators
to obtain voluntary statements is because on the rare occasion it has to
prosecute the officer, “the prosecution has the burden of proving by a
preponderance of the evidence that the statement was voluntary” in order
to offer it as evidence. People v. Sapp (2003) 31 Cal.4th 240,
267.
The District
Attorney’s Office needs a “voluntary” statement to prosecute the bad
guy.
This, of course, is not
an issue where the bad guy is dead. Where that is not the case,
prosecution will be sought against the suspect for whatever led up to
the shooting. This too, is another myth created by OIS investigators to
persuade officers to make a voluntary statement. Of course, an officer
just involved in a shooting wants to make sure the suspect is prosecuted
fully. However, the nature of the officer’s statement has no impact on
the criminal case against the suspect. Any deputy district attorney
will tell you that a criminal defendant may not assert the
constitutional rights of another. People v. Clays (2002) 97
Cal.App.4th 55. In other words, a criminal defendant has no
standing to challenge the admissibility of an officer’s statement based
on it being compelled. It is the officer’s constitutional right, not
the criminal defendant’s to not make a voluntary statement.
It would “look better” if
the statement was voluntary.
Another issue raised is
the proposition that it would “look bad” to the public or to a jury if
the officer only made a statement because he was ordered to do so. This
reason also lacks merit. The public is never told if the statement was
voluntary or not. I have never seen a news article describing an OIS,
indicate the character of the officer’s statement. As for a jury, this
fact should never be in front of a jury since evidentiary rules prohibit
introduction of evidence which shows the exercise of a constitutional
right. Evidence Code §913 (a). See People v. Holloway (2004) 14
Cal.Rptr.3d 212, 240. Since the officer has a constitutional right not
to make a voluntary statement, that fact should be precluded from
evidence in any civil or criminal proceeding. Even without this
provision, there are other ways to keep the fact that the officer was
ordered to provide a statement out of the case. One way is to simply
have the officer’s representative get the order on a audio recording or
in a separate memorandum or even witnessed by another officer. This way
it is clear the statement was compelled, however, the criminal defense
or civil rights attorney will be unaware of that aspect, thereby
avoiding the appearance that the officer only made the statement because
he had no choice.
From a civil liability
view, I have yet to see a circumstance where the fact that an officer’s
statement was compelled incur additional liability on the officer or
employing agency. On the other hand, I have seen examples where making
an immediate voluntary statement after a shooting has incurred
significant liability. This, of course, makes sense. When making a
voluntary statement, there are numerous agencies where you would be
providing two separate statements, a voluntary statement to the criminal
investigators and a compelled statement to the administrative
investigators. When these statements differ, even slightly, civil
rights attorneys suing the department, who will ultimately have access
to both statements, accuse the officer of lying to conceal a bad
shooting. As any civil attorney will confirm, from a liability stand
point, providing one statement is almost always the better way to go.
The Department’s
administration wants a voluntary statement.
As a former police
officer, I can certainly appreciate the reality of being under the
pressure of administration to provide a voluntary statement. After all,
police officers have a strong desire to cooperate in investigations.
Unfortunately, the administration’s compulsion to prefer a voluntary
statement is not rooted in logic, but in the belief that they should
have unfettered control of the investigation. Most administrations do
not like officers to have representatives in any setting, including
negotiations, internal affairs investigations and particularly after a
critical incident. This is not because it is in the officer’s best
interest, but because it interferes with the administration’s perceived
absolute authority. More sophisticated police administrators now
realize that after an officer involved shooting, especially ones where
there are concerns, the officer is best advised to seek legal counsel
and follow their attorney’s advice. This usually not only protects the
officer but in the long run also the public entity’s liability.
From a strictly legal standpoint, making a voluntary
statement only exposes the officer to greater liability, both criminally
and civilly. Upon a close review of the legal issues involved, an
officer providing a compelled statement achieves all necessary purposes,
providing the Department with the information it needs to know as to
what happened, providing the District Attorney’s Office with information
it needs to know as to what happened (P.C. 832.7) and utilization to
prosecute any criminal suspects in the matter. The only aspect not
satisfied by a compelled statement is the lack of the ability for the
District Attorney’s Office or federal prosecutors to utilize such a
statement to prosecute the officer, should that need arise. While it is
rare that officers are prosecuted in such cases, there are at least two
officers presently in state prison as a result of on duty shootings.
Ultimately, it is the
officer’s choice on whether to make a voluntary or compelled statement
after he or she is advised of the legal ramifications. No matter what
the choice, it is the representative’s role to assist the officer
through the process. |
