Force Science Analyst: Invoke ‘Right To Remain Silent’ After OIS
A prominent police defense attorney is revising the post-shooting advice he gives officers in light of a surprising jury instruction that was issued in the criminal trial of one of his clients.
Scott Wood (above), a certified Force Science Analyst and a Force Science instructor, was in the international spotlight last year when he defended Oklahoma officer Betty Shelby against a first-degree felony manslaughter charge for fatally shooting an unarmed black man she thought was reaching for a gun during a contact over an abandoned car.
With Wood as her attorney, Shelby followed the protocol he routinely recommended for officer-involved shootings at the time and did not give a formal statement to investigators about the encounter until she was well-rested two days later.
At the end of her seven-day trial last May, at which point a guilty verdict could have sent her to prison for life, the judge issued an unexpected jury instruction that called attention to this delay.
“Evidence has been introduced,” he stated, “that the Defendant did not make a formal statement to police on [the date of the shooting].” He termed this “impeachment evidence” that is “offered to show that the Defendant’s testimony is not believable or truthful.”
The jurors “may not consider this impeachment evidence as proof of innocence or guilt,” he cautioned, but they could consider it a factor in “determining what weight and credit to give the credibility of the Defendant.” In other words, it could affect her “believability.”
Fortunately, Wood says, the jurors ultimately did not hold Shelby’s delay in meeting with investigators against her. After nine hours’ deliberation, they returned a verdict of not guilty.
Still, Wood believes that officers and their attorneys should be aware of the problematic instruction—and what, in his opinion, to do about it.
Wood believes that “this instruction was given because Shelby never invoked her constitutional right to remain silent” pending the giving of her official statement.
In 2013, he explains, the US Supreme Court in a closely divided decision held that in a police investigation a subject must specifically invoke his or her constitutional privilege to remain silent. Otherwise the subject’s silence may be used against him/her later in court. [see Salinas v. Texas: click here to read it.]
While that case involved a civilian murder defendant, not an officer involved in a shooting, Wood argues that the core issue “is closely akin to the one raised” in the Shelby instruction. (At Salinas’ trial, the court gave a jury instruction similar to the one issued in Shelby’s case.)
Consequently, in an effort to forestall that kind of instruction, Wood has added this provision to his post-shooting advisory, which is now newly printed on the back of his business card:
“IF YOU ARE INVOLVED IN A SHOOTING:
“After providing a brief public safety statement at the scene, announce to the investigator that you are invoking your constitutional right to remain silent. Say the words, ‘I am invoking my constitutional right to remain silent under Salinas v Texas and the US Constitution.’ Then remain silent about the details of the shooting until you are physically and emotionally ready to give a statement to investigators and your lawyer determines you are ready.
“Retain and consult with an attorney who specializes in police use-of-force matters as soon as possible, from the scene if feasible. Then follow your lawyer’s advice.”
Wood told Force Science News, “In most cases, a recovery period before giving a formal statement is important. It works to an officer’s benefit, in terms of helping him consolidate memory, decompress emotionally and physically, and provide the most accurate and comprehensive account possible of what happened. But this much-needed rest period should not result in an officer’s credibility being subjected to doubt in a criminal proceeding.
“Everyone has a right to remain silent, even if the silence is only temporary. But not everyone understands that that right must be asserted to be protective. The Supreme Court has made clear: It’s not automatic.”
BODY-WORN CAMERA CONCERNS
During our recent conversation about jury instructions in criminal cases, Wood also mentioned problems that are arising in some civil cases, concerning body-worn cameras.
“Plaintiffs’ attorneys are asking to inspect recordings from all BWCs that were present at an OIS or other critical incident in which injuries occurred, whether the cameras were reported to be turned on or not,” he says, “and they want to know how the content was downloaded, stored, etc. A camera protocol that’s not as it should be can cause trouble later in court.”
His recommendations in that regard:
• “If you are wearing a body cam that was activated during the event, do not stop recording until the scene is static (all suspects in custody or no longer posing a threat) or you receive permission from an on-scene supervisor to turn it off.”
• “All cameras present, whether they are believed to have recorded anything or not, should be collected as evidence, just as other pieces of evidence at the scene will be.”
• “The downloading of the recording should be witnessed by an investigator working on the case, including when an outside agency is handling the investigation. Do not assign an IT officer or other party to access the recording alone or unsupervised.”
• “Of course, the officer(s) involved in the incident should not attempt to access the recording or be involved in processing camera evidence at all.”
Wood notes: “Law enforcement is still undergoing a significant learning curve regarding body cameras. We undoubtedly will be learning a lot more about them and how they impact post-shooting developments over the next few years. Those in charge of risk management for departments using BWCs need to become familiar with the legal sanctions for mishandling this evidence.”
Atty. Wood, of the law firm Wood, Puhl & Wood in Tulsa, OK, can be reached at: firstname.lastname@example.org
Law Officer is a proud partner with the Force Science Institute. This article originally appeared in Newsletter 358.
Visit www.forcescience.org to learn more about the research FSI conducts and the training they provide.