Call Us First – Do It Right the First Time

Posted on Saturday, July 10, 2010 at 12:00PM
Posted by Andy Schlenker

Immediately following a critical incident; whether it is a shooting, a death in custody or a substantial use of force resulting in serious physical injury, an investigation is always imminent. The most important part of that investigation will be the statement provided by you, the subject of the investigation. This first statement is critically important. Your ability to relay the relevant facts, in the correct and accurate order, is the key component to aid others in an objective understanding and appreciation of all the factors which led to the discharge of your weapon, or other implementation of force.

However, as a general rule, the few hours immediately following the incident are filled with anxiety, stress, and perhaps emotional upheaval. All of these human factors have a tendency to create an immediate memory consisting of “tunnel vision” about only a few facts. It is for this reason, among others, that the opportunity to consult with counsel before providing that first statement is critical.

Over the years, we have learned that when an officer who was involved in a high stress incident has the opportunity to first consult with counsel, their statement which follows is more likely to provide a full and accurate picture of the events. Cynics may believe that the rush to an attorney is to facilitate a false or misguided recitation. The opposite is true.

Consulting with a good and experienced attorney, within the protective confines of the attorney-client privilege, allows the involved officer to be guided through the incident from the officer’s memory. Then, through the attorney’s questions, both the attorney and the officer come to understand how other facts and circumstances also contributed to that split-second decision which will soon be put under the magnifying glass for all to judge. The attorney has the requisite knowledge of how these matters will be investigated so will know the right questions to ask to best ascertain the full picture and comprehensive elements which existed at the time, and counsel you as to how best to portray all of those factors in the initial interview which lies ahead. Recent cases have resulted in substantial discipline being imposed on officers for remembering “too much, too late.” These situations involved just what we have described here. An officer, involved in a high stress critical incident, is questioned immediately following the incident and provides only a limited recitation of what that officer believed was relevant or important. Wanting to get through the process quickly, the officer limits the information to only what they think is most important. Later, when the stress level decreases and a more full opportunity is available to answer additional questions and relay other factors which existed, these later-described true facts are then subject to question as being dishonest, or after-the-fact fabrications.

Don’t get lulled into that false sense of security when others tell you that it was a good shoot, or there will not be any problems. As the saying goes, “a stitch in time saves nine.” Following the incident, remember to call LDF and do it right the first time.

It is for this reason that LDF maintains a 24-hour-a-day, 7-day-a-week critical incident hotline and has panel attorneys on call for an immediate and critically timed response.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.