In Force Science News #358 [2/27/18], we reported a recommendation from police defense attorney Scott Wood that after an OIS the officer involved should actively invoke his or her constitutional right to remain silent until such time that he or she is ready to give a formal statement.
If that is not done, Wood contends, the failure to grant an immediate investigative interview could be used against the officer in criminal proceedings that might grow out of the shooting.
Some readers asked for more specifics about how the right to remain silent should be invoked. Wood, a certified Force Science Analyst and a Force Science instructor, offers this elaboration:
What I have been doing is this. If the investigator makes it to the scene before I do, I instruct my client that after making a brief “public safety” statement regarding possible witnesses and evidence at the scene to verbally state, “I am now invoking my right to remain silent based on the 5th Amendment to the United States Constitution and the Supreme Court case Salinas v. Texas.”
Once I arrive, I have a pre-printed form executed by the officer that looks like this:
I UNDERSTAND THERE IS A REQUEST TO INTERVIEW ME ABOUT THE SHOOTING I WAS INVOLVED IN ON ______________.
I AM INVOKING MY 5TH AMENDMENT RIGHTS UNDER THE UNITIED STATES CONSTITUTION AND SALINAS V. TEXAS TO NOT ANSWER ANY QUESTIONS AT THE PRESENT TIME.
I WILL CONFER WITH MY ATTORNEY WHO WILL BE IN TOUCH WITH YOU AT A LATER TIME.
____________________________________
OFFICER’S NAME
____________________________________
OFFICER’S SIGNATURE & DATE
After taking a picture of the form, I give it to the investigator and ask that it be made a part of the investigative file.
I adopted this procedure recently because of an unexpected jury instruction issued in the case of an officer I defended against a charge of first-degree manslaughter in a controversial shooting.
The judge told the jurors that because the officer did not make a formal statement on the date of the shooting but waited for two days until she was well-rested, that could be considered evidence that her testimony in court “is not believable or truthful.”
Fortunately, the jury believed the officer’s version of events anyway and acquitted her. But had she actively asserted her right to remain silent at the outset, in accordance with the Supreme Court case, the risk could have been avoided. I do believe that is an important insurance policy should criminal proceedings arise from a shooting.
For more information, Wood can be contacted at: okcoplaw@aol.com