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INTERNAL AFFAIRS STATEMENTS
COULD BE USED IN CIVIL TRIALS

>>> Aaron Nisenson (IUPA) 03/18/05 01:56PM >>>
The Virginia Lawyer recently published an article on the use of Internal
Affairs statements that may be useful to local police unions.
(Available at http://www.vsb.org/publications/valawyer/dec04/) The Article
arises from a decision where the Virginia Supreme Court held that internal
affairs statements could be used in civil trials.  While the Court's
decision is likely limited to Virginia, this Article can be helpful to
unions for two other reasons: it explains why IA statements may be
inaccurate, and explains why departments and unions should work together to
ensure that police officers give the most accurate statements possible.

The article was written by lawyers from a large firm that defends local law
enforcement agencies in wrongful death and excessive force cases, and the
article is written primarily for attorneys that defend law enforcement
agencies.  After discussing the Court's decision allowing the use of IA
statement in civil trials, the article explains

"As a result of the Court's decision in Gray, attorneys representing law
enforcement officers and law enforcement agencies must pay even closer
attention to the manner in which these interviews are conducted and the
resulting statements of the officers.  Because statements taken from
officers within hours of an incident are inherently problematic, attorneys
must know how such statements are elicited.  After a struggle with a
suspect, which often results in bodily injury to both the officer and the
suspect, an officer may be scared and running on pure adrenaline.  Many
officers experience tunnel vision following the incident and their memory
may not be clear.  The office may think he or she knows what he or she did
and why, but could actually have only a vague recall of what happened before
the incident." 

The Article also highlights a key failing in many internal investigations
that harms both the officers and the department: that the IA "questioner is
not conducting the interview with any thought that the end product will
become critically important to the officer or the agency in a possible civil
lawsuit." 

The attorneys then explain, "local government attorneys and their outside
counsel should scrutinize the procedures used by detectives in the police
department and the internal affairs division.  This will ensure that both
the department and the officer are not left with an inaccurate and cursory
statement that a plaintiff's attorney will be able to effectively use
against an officer at trial."

One of the most helpful things about this article is that it is NOT written
by a union lawyer trying to protect the police officers, instead it is
written by MANAGEMENT lawyers trying to protect the Department.
Therefore, if your Department lacks good protections for officers being
interviewed, or if the investigator's approach is to emphasize officers'
mistakes instead of simply finding the truth, this Article may help convince
management that it is in the best interests of the department to correct
these problems.

As always, please contact me if you have any questions, or if there are any
cases or issues you would like me to address in the future.

Aaron Nisenson
General Counsel
IUPA

1421 Prince Street, Suite 400
Alexandria, Virginia 22314