A lot of my practice has involved the defence of law enforcement officers in the professional conduct realm. While a few officers accused of misconduct may have done done regrettable things, I can tell you from my personal experience many do nothing at all other than their jobs. But are then vilified over the performance of their duties by their superiors. Some are even criminally charged for doing their jobs.
We aren’t even talking about alleged excessive use of force cases that make news headlines. Rather, this is often about drafting documents, driving vehicles, interviewing witnesses. The types of things officers are required to do day in and day out throughout their careers.
Why meritless accusations happen and hot to stop them from happening in the future likely deserves several academic dissertations of discussion. My job is solely to make sure that my clients have the just outcomes they deserve.
I’m rarely retained prior to my clients already being under suspension and having been served a discipline hearing notice. Here's the advice I would give all of them if they called me up on the first day they got a whiff of a potential investigation into their conduct.
1. You May Have a Duty to Give a Statement, But Request an Order, Clarify the Purpose and Your Status, and Say as Little as Possible
In the law enforcement world, you don’t necessarily have the right to remain silent. But nor are you required of your own volition to answer every question put to you. Some of my clients could have no real evidence against them, other than a statement they gave to investigators which is later claimed to be in some minor aspect untruthful.
It’s the statement alone that could sink them, which management may flag as an “integrity” offence justifying dismissal, while others accused of arguably far more serious offences may not face dismissal because it’s claimed they’re “honest.”
So anytime you are asked to make a statement in your capacity as a law enforcement officer, clarify why the statement is being sought so that you can give sufficient weight to the purpose of the investigation, and make your answers responsive to that purpose.
Clarify your status in the investigation: are you merely a witness, or a subject? Subjects may have more rights to remain silent.
As witness or subject, consider requesting a formal order from a superior officer to give the statement. This may later offer you at least some minimal protection if someone attempts to use the statement against you, especially in a criminal court context.
Last, generally the less said the better.
2. Secure Copies of Your Notes, Texts and Emails
By the time proceedings progress to you being suspended or formally charged, it’s common that relevant texts and emails will have been permanently deleted pursuant to organizational data management 90 day retention policies, and even handwritten field notebooks may have been misplaced. Proactively make copies while you can by printing out potentially relevant emails and text messages, and photocopying relevant pages of field notebooks.
Your organization might not permit you to remove that material from a secure facility, but you can at least segregate it in a locked file somewhere for later retrieval by others.
3. Start Considering Potential Witnesses at an Early Stage.
Professional standards may not interview all the people you believe have the most relevant information to give about your situation. Prompt investigators by providing them with names, or save the names for your own later use. You may need them.
This does not mean you should be proactively speaking to potential witnesses. That could be considered improper. But we all know that memories fade over time, and these kinds of internal investigations can sometimes take not just months but years to complete. People are transferred. They retire and become unavailable. Push to secure their evidence at an early stage.
4. Get Legal Advice - It’s Your Right
I’m continually struck by how law enforcement officers sometimes may not have access to counsel until months into an internal investigation process. Even if you have to pay for that advice out of your own pocket, I always tell my clients that an hour or two of a lawyer’s time can be a total bargain. Paying a lawyer for a three week trial years later could never be called a bargain. Early advice could help prevent an investigation from proceeding to formal proceedings.
Gordon S. Campbell has served as a Member Representative with the RCMP, counsel to the Military Police Complaints Commission, and represents law enforcement officers and other professionals throughout Canada. He is author of The Investigator’s Legal Handbook series of books. Find out more at proconductlaw.com.