So You Got A Notice That You’re A Subject Officer…
Here is a basic guideline of what to expect and how to prepare yourself for the interview:
First and foremost, remember that your statements to the investigator are the words that the reviewer, chief, media, your family and ultimately the arbitrator or court are going see and use to determine your fate. So, choose your words carefully. Don’t let emotions run the interview. Start thinking like a defendant and protect your rights fully. The investigator is doing his/her job which should be to gather the facts for presentation to the command authority that will determine if there has been any violation and what, if any, discipline will be administered.
Prior to your interview you should thoroughly prepare yourself. Read and understand the SOP, Statute or Manual of Regulation that is the basis of the allegation(s). If (for example) the allegation is “excessive force”, you should understand what excessive force is, what the training guidelines are, how you were trained to respond and what the department expected you to do under these circumstances, what force was acceptable under the circumstances, etc..
You have a right to have the interview recorded. If there is a provision in your Collective Bargaining Agreement that permits you to bring your own recording device, you should take full advantage of that and leave the recorder on during all breaks. Some agencies will permit you to bring your own recorder. Ask before the interview. Make a verbal statement “on the record” that you would like to use your own recording device. If the investigator or agency denies you the ability to make your own recording, it may be an argument to challenge the transcript or “official” recording later before an arbitrator.
Write down an opening statement to read into the record of what you want the arbitrator or reviewer to know. Remember that you are not just talking to the investigator. Do not depend on the investigator to ask you only the questions they want answers to. This is your chance to get your side of the incident on the record. Don’t embellish, lie, or mislead; just get your facts on the record. Prior to your interview you will be given an opportunity to read the case file, interviews and the specific complaint against you. You must actually read, understand the file and make notes. If you need further time to prepare your written statement, tell the investigator and request additional time to prepare your defense. They may or may not give you the time, but request the time on the record if you need it. Their refusal will be on the record as well and may provide grounds for consideration by the arbitrator to overturn any negative findings. State your objection on tape that you have been denied sufficient time to prepare if that is the case.
You have the right to a representative of your choice during the interview. Make sure that you contact your representative, don’t depend on IA to do it for you. It is not their job.
There are certain statements and questions that should be made by the subject officer and several may apply to witness officers as well. Some statements are being made simply to have “on the record”. If your case is reviewed or appealed, only “the record” or transcripts will be used for the review.
The investigator will preface the taped interview with several statements. As the subject officer or witness you should also preface the tape to avoid future misunderstandings and possibly provide grounds for suppressing your statements being used against you in criminal proceedings or for seeking an injunction should your rights be violated. Do not give any statements or answer any questions off the record. That is a violation of your Police Officer Bill of Rights.
Not all of the following will be necessary in all cases, but review each and be prepared to use the appropriate steps:
1. If it is not specifically provided, ask for the Name and Command Authority of the person conducting the investigation.
2. Ask what the Consequences would be for refusal to answer any questions.
3. Ask for the Identity of the person making the complaint and ask if this is a “Third Party Complaint”.
4. Ask if the proceedings are Criminal in nature or Administrative only.
5. Ask to be granted “Transactional Immunity” (which means nothing you did can be used against you in criminal procedures) or “Testimonial Immunity” (which means nothing you say there can be used against you in criminal procedures).
6. Make the following statement which is in reference to testimonial immunity:
“I am making these statements for administrative purposes only. I have not done so voluntarily, but in compliance with an order of a superior officer. This statement in no way constitutes any waiver of my rights and this statement, or any part thereof, may not be used against me in any subsequent criminal proceedings.
7. State on the record, before any questioning, “It is my intention to answer truthfully and to the best of my ability.”.
8. With your representative present, ask:
“I am asking for and have present with me union representation, Mr.________________. May my representative play an active role in this proceeding, including counseling, objecting to questions, advising or consulting?”. Some arbitrators and courts have held that if the representative is not permitted to play any role during the interview other than a “fly on the wall” that you are not really being represented properly.
9. Maintain a calm and proper attitude at all times. If you feel yourself getting frustrated, ask for a break (bathroom, water, etc.) and use the time to calm down, collect yourself and focus.
10. If at any time you feel your rights are being violated, ask for a recess for the purpose of going to court and seeking an injunction for the violation “on the record”. Your request will probably be denied, but it is now a part of the record.
11. Remember that the investigator must ask questions which are narrowly drawn and duty related. They may not ask hypothetical questions. Do not be afraid to state “that is a hypothetical question and I believe it would be improper for me to offer and answer.”
12. Do not lie! Do not offer unsolicited statements! Too many officers start feeling that they must talk. Shut up and answer only what was asked with short answers. If you have your prepared statement, refer to it often. Don’t fall into the trap of responding to an open-ended question such as “Tell me everything that happened.” Make the investigator ask specific questions. Be prepared!
13. At the conclusion of the questioning, the investigator will ask something like “Is there anything else you would like to add?”. At this point request a break to discuss with your representative what should or should not be added. Use the time to talk with your representative and get their views of what you may want to add or correct before the end of the interview. Go over your answers to make sure you have covered all the points you had intended to.
14. How many times after you have left the interview and started walking away have you thought, I should have said……. Let’s leave the door open to further statements. At the closing, make the following statements: “My answers given here today are based on my recollection at this time. They may not be everything I can recall and should I remember something further, I presume you would want me to come forward to you.” In other words, I didn’t intentionally leave something out; I just didn’t remember it then. It is usually several months after an incident that you are called upon for an interview. It is common to forget key elements under the stress of questioning but recall them later.
15. Ask for a copy of the transcript of your testimony while on tape, to review it for accuracy prior to it going to the division. The transcript should be provided to you and you should now use your tape recording to make sure what the typist wrote is exactly what you said. If you find errors, bring them to the attention of the investigator to have the transcript corrected.
16. Request on tape to see the Chief of Police prior to any disciplinary decision being made.
17. Request on tape a Complaint Review Board and state that, should you be found in violation of any departmental rule, regulation or policy, you are requesting a Pre-Disciplinary Action Hearing.
18. Finally, object to the investigation and ask that the complaint be not sustained and that you be exonerated.
The best solution to any problem is to prevent the problem from happening in the first place.