Fifth Amendment Right Not Always Right for Officers

Fifth Amendment Right Not Always Right for Officers
Posted on 12/03/2018

By CHPD Chief Robby Russo

Three years ago, police agencies in Utah investigated their own “Officer Involved Shootings.” Public concern prompted the Utah Legislature to change the legal requirements for police agencies in 2015. It was determined that the formation of a Salt Lake County OICI (Officer Involved Critical Incident) Task Force should serve as the investigating agency for such incidents that occur in Salt Lake County to ensure that any investigation is conducted professionally, thoroughly and impartially.

After an Officer Involved Critical Incident, the responsibility for the investigation is turned over to the Protocol Team from outside the venue agency. They investigate all aspects of the event, providing their findings to the Salt Lake District Attorney’s Office for a determination on whether the force used met the legal requirements.

As part of the investigation, the involved officers are interviewed. The officer(s) imposing the force is the subject of the investigation, so he/she has all the rights afforded any citizen under the Constitution including the right to remain silent. This year, several officers have invoked the Fifth Amendment, the right against self-incrimination, leaving the determination on the use of force up to the witness statements and any video footage evidence.

This mirrors a trend by officers across the country, who have been refusing to give these types of statements. Although it is the officers “right,” is that what the public expects from their police officers? Unfortunately, politics plays into the decision, but the unintended consequence is an increasing public criticism of police. The question becomes, is this necessary?

Very often it’s important to understand what the officers state of mind was when the decision to use deadly force occurred. Most often, the officer’s statement(s) provide clarity and assist in the lawful justification when reviewed by prosecutors. 

As police administrators, we can’t require an officer to give a statement in a criminal investigation, as we must respect the exercise of their rights. That said, there is also an administrative investigation to determine if policy was followed or if any training needs are identified. Those interviews are shielded from being used in a criminal proceeding, but the member is compelled to cooperate fully with the Internal Affairs investigator.

As the Opiate Epidemic remains and crime increases so does the violence in the community and against police officers. CHPD has issued body cameras to all our officers; I’m hopeful this will help bridge the trust where the officer can comment on the events. I’m worried that if an officer withholds statements some may presume, he/she is hiding something and formulate their own narrative. The strategy isn’t hurting the District Attorney but causes issues for the employing agency and officers, as we’re working on building trust with all involved for the greater public good.