Wagner and Minick on the Law Radio program. Discussion regarding the Drug Recognition Expert Program and procedures. I am the guest on this show. Original broadcast in August, 2016.
https://www.voiceamerica.com/episode/94379/drug-recognition-for-dui-arrests
Saturday, September 10, 2016
Thursday, April 11, 2013
Tips FOR prosecutors!
A short while ago I was asked by an experienced prosecutor if I could share a few tips for prosecutors from an expert witnesses point of view. It took only a few minutes to come up with the following suggestions. I plan to add to these in the future.
A short while ago I was asked by an experienced prosecutor if I could share a few tips for prosecutors from an expert witnesses point of view. It took only a few minutes to come up with the following suggestions. I plan to add to these in the future.
1) Listen to the expert, and don't just follow a script! If I wasn't clear, ask me to explain.
2) Remember that we're nervous too! Make sure we have a full glass of water. Say good morning (or afternoon) to us after we've been sworn in. This gives us a chance to clear our throat and relax a little.
3) Review our curriculum vitae. There's a good chance we've had other jobs, careers, military service, have volunteered in our communities, that show we are rounded individuals who don't rush to judgement!
4) If you ask questions like an attorney, we'll respond like a cop!! So talk like a human being! Example: If you ask "After exiting your vehicle, what did you then proceed to do?" we'll probably say something like: "Subsequent to exiting my vehicle, and having deactivated the emergency overhead lights, I approached ......"
5) Listen to us on cross-examination! If we respond to the defense attorney that "I can't answer yes or not. I need to explain." And if the defense attorney doesn't ask us to explain, you should!!
6) Do a thorough direct. Without a cross, there's no re-direct. In November of 2012, I testified in a Frye hearing on DRE in an east coast state. After the direct, the FOUR defense attorneys got up one after the other and said: "I have no questions for Mr. Page." The defense attorneys told me later that they had read all of my prior testimony, and were not about to allow me to explain! This is the second time that's happened.
Thursday, April 5, 2012
Role of the "Matrix" in the DRE Program
The issue of the "Matrix" was significant in Judge Galloway's Maryland vs. Brightful, et al. opinion.
The "DRE Matrix" is a common focus of questioning by both prosecutors and defense attorneys in court. In my opinion and experience, defense attorneys in particular attempt to attach far too much weight to this simple tool.
The so-called "Matrix" is simply a reference tool, a chart, that the Drug Recognition Expert officer may refer to before, during, or subsequent to conducting an evaluation. The "Matrix" is also known as a "Drug Influence Signs and Symptoms" chart, or simply a "Drug Use Indicators" chart. It's analogous to the Periodical Table of Elements that a physicist may hang on the office wall, a chart of the human skeletal system that a physician may refer to, or a sentencing guideline chart that a judge may use.
The typical "Matrix" consists of headings across the top - the horizontal plane - of the seven DRE drug categories. The far left column vertically lists specific categories of effects, such as pupil size, vital signs, HGN, vertical gaze nystagmus, lack of convergence, and other behavioral effects. Some matrices include lists of specific substances included within a category of drug, normal ranges of vital signs and pupil size, methods of administration, and more. A so-called "completed Matrix" lists the expected effects by drug category. For example, in the box under the Central Nervous System Depressant heading, and to the right of HGN, the words "present" would be placed.
The "Matrix" was initially developed by retired LAPD Motorcycle Officer C. Doug Laird in the mid-1980's. Officer Laird was one of the four LAPD officers who participated in the landmark Johns Hopkins study of the DRE program in 1984. Doug created a chart solely to help him remember and separate the various signs and symptoms of the drug categories. Many other officers developed their own version of this reference chart. It wasn't until the early to mid-1990's that DRE students were taught to complete a matrix chart during the classroom phase of DRE training.
(For many years, I resisted supplying DRE students with ready made matrices of drug signs and symptoms. I was concerned that students would memorize a chart, rather than fully understand and commit to memory the material of the course. However, over time, many students entered DRE training with charts given to them by DRE's, certainly with the intention of preparing them for the rigorous DRE training. Unfortunately, many of those charts contained inaccuracies - still true to this day!)
Currently, student DRE's periodically complete matrices from memory during the DRE school, including during the certification phase of training.
The "Matrix" is a reference tool and nothing more. The "Matrix" doesn't make the decision of impairment or determine the drug-category for the officer. The DRE simply references the matrix to refresh his or her memory, and to make sure that he/she didn't overlook the involvement of other drugs. The "Matrix" contains only a very small portion of the information that the DRE student is expected to master. And of course the "Matrix" teaches nothing about the skills and attitude (affective domain of learning) that a DRE must master.
The "DRE Matrix" is a common focus of questioning by both prosecutors and defense attorneys in court. In my opinion and experience, defense attorneys in particular attempt to attach far too much weight to this simple tool.
The so-called "Matrix" is simply a reference tool, a chart, that the Drug Recognition Expert officer may refer to before, during, or subsequent to conducting an evaluation. The "Matrix" is also known as a "Drug Influence Signs and Symptoms" chart, or simply a "Drug Use Indicators" chart. It's analogous to the Periodical Table of Elements that a physicist may hang on the office wall, a chart of the human skeletal system that a physician may refer to, or a sentencing guideline chart that a judge may use.
The typical "Matrix" consists of headings across the top - the horizontal plane - of the seven DRE drug categories. The far left column vertically lists specific categories of effects, such as pupil size, vital signs, HGN, vertical gaze nystagmus, lack of convergence, and other behavioral effects. Some matrices include lists of specific substances included within a category of drug, normal ranges of vital signs and pupil size, methods of administration, and more. A so-called "completed Matrix" lists the expected effects by drug category. For example, in the box under the Central Nervous System Depressant heading, and to the right of HGN, the words "present" would be placed.
The "Matrix" was initially developed by retired LAPD Motorcycle Officer C. Doug Laird in the mid-1980's. Officer Laird was one of the four LAPD officers who participated in the landmark Johns Hopkins study of the DRE program in 1984. Doug created a chart solely to help him remember and separate the various signs and symptoms of the drug categories. Many other officers developed their own version of this reference chart. It wasn't until the early to mid-1990's that DRE students were taught to complete a matrix chart during the classroom phase of DRE training.
(For many years, I resisted supplying DRE students with ready made matrices of drug signs and symptoms. I was concerned that students would memorize a chart, rather than fully understand and commit to memory the material of the course. However, over time, many students entered DRE training with charts given to them by DRE's, certainly with the intention of preparing them for the rigorous DRE training. Unfortunately, many of those charts contained inaccuracies - still true to this day!)
Currently, student DRE's periodically complete matrices from memory during the DRE school, including during the certification phase of training.
The "Matrix" is a reference tool and nothing more. The "Matrix" doesn't make the decision of impairment or determine the drug-category for the officer. The DRE simply references the matrix to refresh his or her memory, and to make sure that he/she didn't overlook the involvement of other drugs. The "Matrix" contains only a very small portion of the information that the DRE student is expected to master. And of course the "Matrix" teaches nothing about the skills and attitude (affective domain of learning) that a DRE must master.
Wednesday, April 4, 2012
The Courtroom as a Classroom.
I'd like to elaborate a bit on how and why I believe it's useful think of the courtroom as a classroom.
The Expert Witness is a teacher.
In this "courtroom as classroom" analogy, the expert witness, such as a DRE, is the teacher. Good teachers, whether in an actual classroom or on the witness stand, share much in common. They are knowledgeable about their subject matters. At the same time, however, they don't claim to know everything. They'll also admit when they are wrong. Good teachers don't come across as arrogant. Rather, they may seem somewhat humble. They may even appear a bit nervous. After all, testifying in court is a form of public speaking. The good teacher is enthusiastic about his/her subject matter, and enjoys explaining the intricacies of the topic. The good teacher knows how to pronounce and spell the technical terms of his/her expertise. The good teacher explains rather than dictates, making the complicated seem somewhat simple. The good teacher in the courtroom also shows respect and a bit of deference to the others, even to the court reporter.
The Jury members are the students.
The expert witness teaches the jurors, the courtroom's "students." But unlike students in a college course, or a law enforcement course such as DRE, the courtroom's students didn't sign up for the course! They were ordered to put their work aside, their families, and their other interests to attend this "course." Furthermore, the students may be ordered not to talk about the "class," may not be allowed to "take notes," and may not even know how long the "class" will last! For all of this inconvenience, they receive a very small amount of compensation to cover some of the travel costs. We should be thankful that most members of our society take jury duty seriously. Likewise, we should never disparage a jury by remarking that they were "too stupid" to get off jury duty.
The best prosecutors ask questions from the jury's point of view.
In my experience, the best prosecutors ask questions that the members of the jury would like to ask. It's almost as if the jury members chose one person to ask questions on their behalf, a "designated juror." These prosecutors ask the expert witness to explain procedures, such as the SFST's. They ask the expert witness why they do certain procedures in a specified way. They also talk like a regular citizen, and avoid "copese." An example of a "copese" question is: "Subsequent to activating your overhead emergency lights, did you effect a traffic stop?"
The defense attorney tries to testify.
During the cross examination of an expert witness, such as a DRE, the defense attorney basically testifies, and asks the witness to agree or disagree. To do this, the defense attorney asks leading questions, that usually require a yes or no answer. A simple, but recurring, question that DRE's often encounter is "You're not a medical doctor, are you?" A simple question requiring a "yes" or "no." Defense attorneys also frequently start a question - again, an attempt to testify - by saying "It's fair to say..." I alert whenever I hear a question that starts with the "fair to say" phrase. Because almost always, it's NOT "fair to say." Usually it's a gross oversimplification of a complicated issue. And I have often answered, "No sir, it's not fair to say."
A couple guidelines:
Answer "Yes" or "No" if you can. Ask to "explain" if you must. But never answer "Yes, but..." The good defense attorney will stop you by thanking you for answering the question. Hopefully, the prosecutor will ask you to explain on redirect.
The judge is the referee.
The role of the judge is similar to the role of a sports referee. The judge makes sure that the rules of law are followed, that everyone gets a fair chance to present his/her version of the case, and that the proceeding stays on schedule.
The Expert Witness is a teacher.
In this "courtroom as classroom" analogy, the expert witness, such as a DRE, is the teacher. Good teachers, whether in an actual classroom or on the witness stand, share much in common. They are knowledgeable about their subject matters. At the same time, however, they don't claim to know everything. They'll also admit when they are wrong. Good teachers don't come across as arrogant. Rather, they may seem somewhat humble. They may even appear a bit nervous. After all, testifying in court is a form of public speaking. The good teacher is enthusiastic about his/her subject matter, and enjoys explaining the intricacies of the topic. The good teacher knows how to pronounce and spell the technical terms of his/her expertise. The good teacher explains rather than dictates, making the complicated seem somewhat simple. The good teacher in the courtroom also shows respect and a bit of deference to the others, even to the court reporter.
The Jury members are the students.
The expert witness teaches the jurors, the courtroom's "students." But unlike students in a college course, or a law enforcement course such as DRE, the courtroom's students didn't sign up for the course! They were ordered to put their work aside, their families, and their other interests to attend this "course." Furthermore, the students may be ordered not to talk about the "class," may not be allowed to "take notes," and may not even know how long the "class" will last! For all of this inconvenience, they receive a very small amount of compensation to cover some of the travel costs. We should be thankful that most members of our society take jury duty seriously. Likewise, we should never disparage a jury by remarking that they were "too stupid" to get off jury duty.
The best prosecutors ask questions from the jury's point of view.
In my experience, the best prosecutors ask questions that the members of the jury would like to ask. It's almost as if the jury members chose one person to ask questions on their behalf, a "designated juror." These prosecutors ask the expert witness to explain procedures, such as the SFST's. They ask the expert witness why they do certain procedures in a specified way. They also talk like a regular citizen, and avoid "copese." An example of a "copese" question is: "Subsequent to activating your overhead emergency lights, did you effect a traffic stop?"
The defense attorney tries to testify.
During the cross examination of an expert witness, such as a DRE, the defense attorney basically testifies, and asks the witness to agree or disagree. To do this, the defense attorney asks leading questions, that usually require a yes or no answer. A simple, but recurring, question that DRE's often encounter is "You're not a medical doctor, are you?" A simple question requiring a "yes" or "no." Defense attorneys also frequently start a question - again, an attempt to testify - by saying "It's fair to say..." I alert whenever I hear a question that starts with the "fair to say" phrase. Because almost always, it's NOT "fair to say." Usually it's a gross oversimplification of a complicated issue. And I have often answered, "No sir, it's not fair to say."
A couple guidelines:
Answer "Yes" or "No" if you can. Ask to "explain" if you must. But never answer "Yes, but..." The good defense attorney will stop you by thanking you for answering the question. Hopefully, the prosecutor will ask you to explain on redirect.
The judge is the referee.
The role of the judge is similar to the role of a sports referee. The judge makes sure that the rules of law are followed, that everyone gets a fair chance to present his/her version of the case, and that the proceeding stays on schedule.
Monday, April 2, 2012
HGN and Driving Impairment
Maryland vs. Brightful et al.
In pondering how to address the questions and issues raised by Judge Galloway in the recent Maryland DRE case (Maryland vs. Brightful et al), I came to the realization that Judge Galloway didn't identify any new issues. I have been asked questions about these very issues in past cases and hearings, including "Frye," "Daubert," and similar hearings. Thus, I will try to comment as I have (and will) in court. Of course, witnesses aren't allowed to give a speech in court; rather witnesses answer questions. But sometimes, the questions are so broad that they require a fairly lengthy narrative.
To illustrate, my two favorite questions - questions I have actually been asked - required lengthy answers. Question 1: "What are the drugs of abuse and what are their effects?" Anticipating an objection by the defense ("Objection, calls for a narrative"), I paused before answering. When no objection was raised, I asked the judge if I could use write on the court's whiteboard. "Go right ahead" said the Judge. I put on a mini-DRE course! Took about an hour. Question 2: "What procedure do you use to determine if an individual is under the influence of drugs?" Again, with the judge's permission, I wrote out the 12 step procedure, explaining step by step. Even explained the so-called "normal ranges" of pupil size and vital signs. Again, I put on a mini-DRE course.
(As an aside, my least favorite question was asked by a defense attorney, again in a DRE admissibility hearing: "Now these 7 categories of drugs you just talked about...is this a list of the drugs you personally have abused?" When the prosecutor didn't object but giggled instead, I tuned to the judge and very politely said, "Your honor, can I object?" The judge replied, "No, but I will." Obviously, the defense attorney insulted me in an attempt to goad me into losing my cool. It didn't work.)
In court, the expert witness, such as a DRE, is a teacher. And the best teachers, whether in college, the police academy, or DRE school, make the complicated simple and understandable. They explain rather than dictate. (The best teachers also know how to pronounce and spell the words of their profession!)
The issue of HGN and driving impairment was brought up in the Maryland case. In my opinion, HGN, in the person who doesn't have it naturally (I've seen 2 people with HGN unrelated to alcohol or drug use.), is a temporary dysfunction of the person's visual tracking system. As we know, the sober person's eyes normally track smoothly from side to side without any visible jerking. But how does this relate to driving? This is how I generally have explained it in court.
In order to properly conduct the Horizontal Gaze Nystagmus test, the subject is admonished to not move his/her head while following the stimulus as it moves from side to side. Although it varies from person to person, in my experience, most people at a .15 BAC are not able to deviate their eyes and keep their head fixed. Their eyes move and their head follows. In order to compensate for this, we may have the person hold his/her chin with the hands, put the back of his/her head against a wall, or even hold a flashlight under the person's chin to keep it from moving. Usually, these measures are unsuccessful. The person just can't move the eyes without moving his/her head. As the alcohol level goes up, the angle at which the person moves his head, in effect to catch up with the eyes, occurs earlier.
In everyday conversation, people move their eyes about 45 degrees. Imagine two officers talking to a citizen. The citizen doesn't move his/her head like a bobble-head doll, or an infant for that matter, from one officer to the other. The citizen moves his eyes. Beyond 45 degrees, however, the person moves his head. If the person can't deviate the eyes 45 degrees before moving the head, there's a good chance that person is under the influence of alcohol or other nystagmus-causing drug. And SFST practitioners know the significance of the 45 degree angle.
Obviously, a person needs to see in order to drive. Furthermore, a driver needs to be able to keep the vehicle in the proper lane while being aware of hazards, other vehicles, exits, etc. that may intrude on the roadway. The driver (at least the sober one) continually moves his/her eyes and head from side to side while maintaining proper lane position, speed, distance from other vehicles and more. Truly, driving is a divided attention task.
The alcohol and/or drug-impaired driver has a decreased ability to divide and shift attention from one thing to other. We certainly assess this impaired divided attention when we administer the Standardized Field Sobriety Tests, including HGN. As I discussed a few paragraphs ago, a person with HGN has a decreased ability to keep his/her head facing forward while looking (gazing) to the side. As a result, the person turns his/her head. In effect, the person looks to the side. If the person is driving, and his/her attention is distracted from the road by, for instance, a police officer conducting an enforcement stop, the driver will look to the side. After all, that's why police cars have high visibility lighting - to get someone's attention.
It's a basic principle of motorcycle operator training that you should "look where you want to go." The converse of this is that you will "go where you are looking." So, to avoid a road hazard, motorcycle riders are taught to look for the safe route around the road hazard. Again, look where you want to go, not at what you are trying to avoid. This principle applies to cars, trucks, and even bicycles. This principle also applies to sober as well as impaired drivers.
Sober drivers, however, are usually able to maintain proper lane position while quickly looking to the side. In fact, the sober driver may not move his/her head, but just the eyes. On the other hand the impaired driver - the driver with alcohol and/or drug induced HGN - may not be able to move the eyes to the side while keeping the head straight. The impaired driver may turn his/her head to the side, and drive in that direction. Again, the impaired driver may "go" where he/she is looking. And too frequently, this results in the impaired driver driving into an existing crash investigation, or a police vehicle with lights flashing. You go where you look.
In pondering how to address the questions and issues raised by Judge Galloway in the recent Maryland DRE case (Maryland vs. Brightful et al), I came to the realization that Judge Galloway didn't identify any new issues. I have been asked questions about these very issues in past cases and hearings, including "Frye," "Daubert," and similar hearings. Thus, I will try to comment as I have (and will) in court. Of course, witnesses aren't allowed to give a speech in court; rather witnesses answer questions. But sometimes, the questions are so broad that they require a fairly lengthy narrative.
To illustrate, my two favorite questions - questions I have actually been asked - required lengthy answers. Question 1: "What are the drugs of abuse and what are their effects?" Anticipating an objection by the defense ("Objection, calls for a narrative"), I paused before answering. When no objection was raised, I asked the judge if I could use write on the court's whiteboard. "Go right ahead" said the Judge. I put on a mini-DRE course! Took about an hour. Question 2: "What procedure do you use to determine if an individual is under the influence of drugs?" Again, with the judge's permission, I wrote out the 12 step procedure, explaining step by step. Even explained the so-called "normal ranges" of pupil size and vital signs. Again, I put on a mini-DRE course.
(As an aside, my least favorite question was asked by a defense attorney, again in a DRE admissibility hearing: "Now these 7 categories of drugs you just talked about...is this a list of the drugs you personally have abused?" When the prosecutor didn't object but giggled instead, I tuned to the judge and very politely said, "Your honor, can I object?" The judge replied, "No, but I will." Obviously, the defense attorney insulted me in an attempt to goad me into losing my cool. It didn't work.)
In court, the expert witness, such as a DRE, is a teacher. And the best teachers, whether in college, the police academy, or DRE school, make the complicated simple and understandable. They explain rather than dictate. (The best teachers also know how to pronounce and spell the words of their profession!)
The issue of HGN and driving impairment was brought up in the Maryland case. In my opinion, HGN, in the person who doesn't have it naturally (I've seen 2 people with HGN unrelated to alcohol or drug use.), is a temporary dysfunction of the person's visual tracking system. As we know, the sober person's eyes normally track smoothly from side to side without any visible jerking. But how does this relate to driving? This is how I generally have explained it in court.
In order to properly conduct the Horizontal Gaze Nystagmus test, the subject is admonished to not move his/her head while following the stimulus as it moves from side to side. Although it varies from person to person, in my experience, most people at a .15 BAC are not able to deviate their eyes and keep their head fixed. Their eyes move and their head follows. In order to compensate for this, we may have the person hold his/her chin with the hands, put the back of his/her head against a wall, or even hold a flashlight under the person's chin to keep it from moving. Usually, these measures are unsuccessful. The person just can't move the eyes without moving his/her head. As the alcohol level goes up, the angle at which the person moves his head, in effect to catch up with the eyes, occurs earlier.
In everyday conversation, people move their eyes about 45 degrees. Imagine two officers talking to a citizen. The citizen doesn't move his/her head like a bobble-head doll, or an infant for that matter, from one officer to the other. The citizen moves his eyes. Beyond 45 degrees, however, the person moves his head. If the person can't deviate the eyes 45 degrees before moving the head, there's a good chance that person is under the influence of alcohol or other nystagmus-causing drug. And SFST practitioners know the significance of the 45 degree angle.
Obviously, a person needs to see in order to drive. Furthermore, a driver needs to be able to keep the vehicle in the proper lane while being aware of hazards, other vehicles, exits, etc. that may intrude on the roadway. The driver (at least the sober one) continually moves his/her eyes and head from side to side while maintaining proper lane position, speed, distance from other vehicles and more. Truly, driving is a divided attention task.
The alcohol and/or drug-impaired driver has a decreased ability to divide and shift attention from one thing to other. We certainly assess this impaired divided attention when we administer the Standardized Field Sobriety Tests, including HGN. As I discussed a few paragraphs ago, a person with HGN has a decreased ability to keep his/her head facing forward while looking (gazing) to the side. As a result, the person turns his/her head. In effect, the person looks to the side. If the person is driving, and his/her attention is distracted from the road by, for instance, a police officer conducting an enforcement stop, the driver will look to the side. After all, that's why police cars have high visibility lighting - to get someone's attention.
It's a basic principle of motorcycle operator training that you should "look where you want to go." The converse of this is that you will "go where you are looking." So, to avoid a road hazard, motorcycle riders are taught to look for the safe route around the road hazard. Again, look where you want to go, not at what you are trying to avoid. This principle applies to cars, trucks, and even bicycles. This principle also applies to sober as well as impaired drivers.
Sober drivers, however, are usually able to maintain proper lane position while quickly looking to the side. In fact, the sober driver may not move his/her head, but just the eyes. On the other hand the impaired driver - the driver with alcohol and/or drug induced HGN - may not be able to move the eyes to the side while keeping the head straight. The impaired driver may turn his/her head to the side, and drive in that direction. Again, the impaired driver may "go" where he/she is looking. And too frequently, this results in the impaired driver driving into an existing crash investigation, or a police vehicle with lights flashing. You go where you look.
Wednesday, February 1, 2012
Breathalyzer for Drugs? Not possible!
The January 30, 2012 USA Today contained a short article in which Sens. Schumer of New York and Pryor of Arkansas suggest increasing funding to develop a breathalyzer type device to test for drugs. Here's my letter to the USA Today in response.
Dear Editor:
No Breathalyzer for drugs
The holy grail of drugged-driving enforcement is, as Sens. Charles Schumer of New York and Mark Pryor of Arkansas stated, a "...breathalyzer-like technology..." to identify individuals who drive under the influence of non-alcohol drugs.
For many reasons, it's extremely unlikely that such a device will ever be available. Breathalyzer-type instruments test only for alcohol. The impairing drugs of abuse, however, are many. They include illicit drugs like PCP, marijuana, LSD, and heroin, along with legitimate pharmaceuticals like the benzodiazepines (Valium, Xanax, and others), opiates (Oxycodone, hydrocodone, and others), and even non-drugs such as paint and other volatile solvents that are "huffed." And if that doesn't complicate the issue enough, drug users are poly-drug users. This means that they use more than one drug at the same time. Often, one of the drugs is alcohol. It's also important to realize that there many non-drug causes of driving impairment. These non-drug causes include fatigue, dementia, and a host of medical conditions ranging from stroke to uncontrolled diabetes.
The key to effective drugged-driving enforcement is the well-trained police officer who can recognize and document impairment from any cause. The Drug Evaluation and Classification Program, supported by the National Highway Traffic Safety Administration and the International Association of Chiefs of Police, trains selected officers to become Drug Recognition Experts (DRE's). These officers, approximately 7000 in the U.S. and Canada, use a step-by-step procedure to determine if a driver is impaired, and that the impairment is due to drugs rather than a medical condition. This program and procedure, which was created by Los Angeles Police Department officers in the 1980's, has been scientifically validated, and has been accepted in many courts throughout the United States.
I welcome any efforts to expand the availability of DRE officers. These officers are truly the front-line in combating drug-impaired driving.
Thomas E. Page
Drug Recognition Expert Emeritus
Retired, Los Angeles Police Department
Dear Editor:
No Breathalyzer for drugs
The holy grail of drugged-driving enforcement is, as Sens. Charles Schumer of New York and Mark Pryor of Arkansas stated, a "...breathalyzer-like technology..." to identify individuals who drive under the influence of non-alcohol drugs.
For many reasons, it's extremely unlikely that such a device will ever be available. Breathalyzer-type instruments test only for alcohol. The impairing drugs of abuse, however, are many. They include illicit drugs like PCP, marijuana, LSD, and heroin, along with legitimate pharmaceuticals like the benzodiazepines (Valium, Xanax, and others), opiates (Oxycodone, hydrocodone, and others), and even non-drugs such as paint and other volatile solvents that are "huffed." And if that doesn't complicate the issue enough, drug users are poly-drug users. This means that they use more than one drug at the same time. Often, one of the drugs is alcohol. It's also important to realize that there many non-drug causes of driving impairment. These non-drug causes include fatigue, dementia, and a host of medical conditions ranging from stroke to uncontrolled diabetes.
The key to effective drugged-driving enforcement is the well-trained police officer who can recognize and document impairment from any cause. The Drug Evaluation and Classification Program, supported by the National Highway Traffic Safety Administration and the International Association of Chiefs of Police, trains selected officers to become Drug Recognition Experts (DRE's). These officers, approximately 7000 in the U.S. and Canada, use a step-by-step procedure to determine if a driver is impaired, and that the impairment is due to drugs rather than a medical condition. This program and procedure, which was created by Los Angeles Police Department officers in the 1980's, has been scientifically validated, and has been accepted in many courts throughout the United States.
I welcome any efforts to expand the availability of DRE officers. These officers are truly the front-line in combating drug-impaired driving.
Thomas E. Page
Drug Recognition Expert Emeritus
Retired, Los Angeles Police Department
Monday, January 30, 2012
Symposium on Marijuana "reform" at Wayne State University
This past Friday, January 27, 2012, I attended the National and State Marijuana Reform Symposium hosted by Wayne State University's (Detroit) School of Law. Predictably, and not surprisingly, in my estimation all of the presenters (with one exception) and most of the attendees (200 plus) were in favor of the decriminalization and legalization of marijuana. Without going into detail, a couple of the speakers mocked former first lady Nancy Reagan's "Just say no" advice to those who try to avoid using drugs. A number of the speakers blamed "cops, prosecutors, and judges" for our country's drug problem. One speaker, a pharmacy professor AND lawyer, actually told the audience to "Just say Yes to drugs." Nonetheless, there was one speaker who had a contrary (refreshing?) point of view. That speaker was Kevin Sabet, Ph.D. Kevin Sabet is a drug policy consultant. He served as a senior adviser to the White House Office of National Drug Control Policy from 2009 to 2011. He currently is a professor at the University of Florida's School of Medicine. I had the good fortune to introduce myself and to chat with Dr. Sabet. He was aware and supportive of the DRE approach to drugged-driving.
Here are a few of the points that Dr. Sabet made during his presentation. As an aside, many of Dr. Sabet's comments were met with derisive catcalls and comments from the other speakers and the audience. I clapped!
No modern nation has legalized marijuana. Pointed out that legalization is an extreme solution to the drug problem. Contrary to popular belief, Dr. Sabet said that it's very rare for people to be imprisoned for simple marijuana possession.
Dr. Sabet said that Alcohol and tobacco are in fact frightening examples of what can happen with legalization.
Legalization will increase use of marijuana. For many, the fact that marijuana is illegal helps to discourage (and prevent in some cases) use.
Legalization wouldn't eliminate the black market. Raising taxes will increase the likelihood of a black market.
Increased revenue from taxing marijuana wouldn't be offset by the increase in social and economic costs. In fact, Dr. Sabet pointed out that so-called "Vice taxes" rarely offset cost. Again, Dr. Sabet used the costs associated with legalized alcohol as a "frightening" example.
Dr. Sabet said that there are many ways to reduce incarceration rates (and associated costs) without legalizing drugs. He used the example of drug (and sobriety) courts, and other programs that focus on both compassion AND accountability as alternatives to legalization.
Finally, Dr. Sabet said that that although marijuana isn't as dangerous as smoking cocaine or heroin, it still is a harmful substance. (In my opinion, the costs to our society are greater with marijuana, simply because of its prevalence.)
Here are a few of the points that Dr. Sabet made during his presentation. As an aside, many of Dr. Sabet's comments were met with derisive catcalls and comments from the other speakers and the audience. I clapped!
No modern nation has legalized marijuana. Pointed out that legalization is an extreme solution to the drug problem. Contrary to popular belief, Dr. Sabet said that it's very rare for people to be imprisoned for simple marijuana possession.
Dr. Sabet said that Alcohol and tobacco are in fact frightening examples of what can happen with legalization.
Legalization will increase use of marijuana. For many, the fact that marijuana is illegal helps to discourage (and prevent in some cases) use.
Legalization wouldn't eliminate the black market. Raising taxes will increase the likelihood of a black market.
Increased revenue from taxing marijuana wouldn't be offset by the increase in social and economic costs. In fact, Dr. Sabet pointed out that so-called "Vice taxes" rarely offset cost. Again, Dr. Sabet used the costs associated with legalized alcohol as a "frightening" example.
Dr. Sabet said that there are many ways to reduce incarceration rates (and associated costs) without legalizing drugs. He used the example of drug (and sobriety) courts, and other programs that focus on both compassion AND accountability as alternatives to legalization.
Finally, Dr. Sabet said that that although marijuana isn't as dangerous as smoking cocaine or heroin, it still is a harmful substance. (In my opinion, the costs to our society are greater with marijuana, simply because of its prevalence.)
Wednesday, November 16, 2011
Penn State and Jerry Sandusky: flashback to Hollywood Blvd.
As I watched the Bob Costas' interview of Jerry Sandusky (Penn State) , I had a flashback to an arrest I made in about 83 or 84 in Hollywood. I was walking a foot beat (most fun I've ever had in my life!) on Hollywood Blvd. when a young boy of about 10 pointed to a guy in an arcade and told me that the guy had touched his genitals. My partner and I went into the arcade, and after a brief struggle arrested the guy. Back at the station I interviewed our arrestee at length. He said, "You know what they do to people like me in prison." Of course, I pursued that line of thought - as in "What kind of person are you?" But the arrestee clammed up and refused to talk.
When I reported to work the next day, I was met by the legendary LAPD Lt. Higbie and his OIS team. It seems my pervert-arrestee hung himself - successfully - in the Hollywood Jail. (Investigators later found the typical stash of photos of little boys in the decedent's hotel room.)
Jerry Sandusky sounded just like my arrestee. Flat affect, little emotion, monotone, not fully admitting, but not fully denying either. If Sandusky were in jail, and I were the Watch Commander, I'd definitely make sure he was on suicide watch.
When I reported to work the next day, I was met by the legendary LAPD Lt. Higbie and his OIS team. It seems my pervert-arrestee hung himself - successfully - in the Hollywood Jail. (Investigators later found the typical stash of photos of little boys in the decedent's hotel room.)
Jerry Sandusky sounded just like my arrestee. Flat affect, little emotion, monotone, not fully admitting, but not fully denying either. If Sandusky were in jail, and I were the Watch Commander, I'd definitely make sure he was on suicide watch.
Thursday, November 3, 2011
Legalize Marijuana article: My response
The November 2, 2011 edition of Detroit's Metro Times contained an article by Larry Gabriel titled "Top Cop Changes his Mind." (http://metrotimes.com/mmj/top-cop-changes-his-mind-1.1226308) In the article, former Detroit Police Chief Ike McKinnon was quoted as saying marijuana should be legalized. In response to this article, I emailed the following letter to the Metro Times.
Dear Editor:
Former Detroit Police Chief Ike McKinnon said "I can't think of anybody who has died from marijuana." I also can't think of a case where somebody died from an overdose of LSD. The problem with marijuana, and LSD for that matter, is its effect on thinking and behavior. And it's this behavioral toxicity, such as impaired ability to pay attention while driving, that's the real problem with marijuana. The only reason marijuana is used in the first place is because it has a primary effect on the brain, the central nervous system. After all, people don't use marijuana because they like to have bloodshot eyes. The CNS effects include impaired attention, impaired depth perception, amotivation, and more. Knowing these effects, I certainly do not want my doctor, dentist, police officer, child-care worker or professor to use marijuana.
And frankly, to suggest that almost all the "problems and violence" associated with drug use result from the laws is indicative of pharmacological ignorance. Stimulants, such as cocaine and methamphetamine mimic the body's activation of the Sympathetic nervous system. It's this system that's responsible for the body's fight or flight response. In fact, they are correctly termed "sympathomimetics." These drugs cause the user to feel that they are in danger. But the user is responding to the drug, and not the environment. And people who feel threatened, feel paranoid, are dangerous and often violent. PCP ("angel dust") has similar effects.
Like Ike McKinnon, I also am a retired police officer. I also know and respect Dr. Michael Whitty. (In the interest of full disclosure, Mike Whitty was one of my U of D professors many years ago.) But when it comes to drug legalization, including that of marijuana, Professors McKinnon and Whitty are wrong.
Thomas E. Page, M.A.
Drug Recognition Expert Emeritus
Dear Editor:
Former Detroit Police Chief Ike McKinnon said "I can't think of anybody who has died from marijuana." I also can't think of a case where somebody died from an overdose of LSD. The problem with marijuana, and LSD for that matter, is its effect on thinking and behavior. And it's this behavioral toxicity, such as impaired ability to pay attention while driving, that's the real problem with marijuana. The only reason marijuana is used in the first place is because it has a primary effect on the brain, the central nervous system. After all, people don't use marijuana because they like to have bloodshot eyes. The CNS effects include impaired attention, impaired depth perception, amotivation, and more. Knowing these effects, I certainly do not want my doctor, dentist, police officer, child-care worker or professor to use marijuana.
And frankly, to suggest that almost all the "problems and violence" associated with drug use result from the laws is indicative of pharmacological ignorance. Stimulants, such as cocaine and methamphetamine mimic the body's activation of the Sympathetic nervous system. It's this system that's responsible for the body's fight or flight response. In fact, they are correctly termed "sympathomimetics." These drugs cause the user to feel that they are in danger. But the user is responding to the drug, and not the environment. And people who feel threatened, feel paranoid, are dangerous and often violent. PCP ("angel dust") has similar effects.
Like Ike McKinnon, I also am a retired police officer. I also know and respect Dr. Michael Whitty. (In the interest of full disclosure, Mike Whitty was one of my U of D professors many years ago.) But when it comes to drug legalization, including that of marijuana, Professors McKinnon and Whitty are wrong.
Thomas E. Page, M.A.
Drug Recognition Expert Emeritus
Sunday, October 30, 2011
Guard against Anchoring and Confirmation Biases
I just came across two interesting articles that deal with bias in forming opinions and beliefs. It's a basic tenet of DRE training that an opinion should not be reached until the evaluation has been completed. Further, the DRE's opinion must be based on the totality of the the evaluation (and of the entire investigation for that matter).
The October 15, 2011 issue of Bottom Line/Personal contained a front page article about misdiagnoses in medicine. It struck me that DRE's face many of the same issues and challenges that medical doctors do in reaching opinions. According to the article, "Doctors routinely take a mental shortcut known as 'anchoring.' They quickly latch onto an idea about what's causing your symptoms." "Anchoring" is definitely something that DRE's have to guard against. For example, anchoring may be caused by what the arrestee says he/she has taken (true or not), what the arresting officer believes the person is under the influence of, or the substances and paraphernalia that were in the arrestee's possession. Guard against "anchoring" by asking yourself whether something else, including a medical condition, may be causing the signs and symptoms. Continually challenge yourself by asking yourself if there are alternative explanations. (As an aside, the article says that in US autopsy studies, "doctors misdiagnosed illnesses between 20% and 40% of the time.")
The July issue of Scientific American contained a column by Michael Shermer titled "The Believing Brain." Shermer wrote that "anchoring bias" occurs when one relies too heavily on one piece of information to make a decision. A DRE who decides that a person is under the influence of, say cannabis, because the person had bloodshot eyes, is an example of "anchoring bias." Shermer also writes about another type of relevant bias called "confirmation bias," in which one seeks and finds "confirming evidence in support of already existing beliefs and ignoring or reinterpreting disconfirming evidence." Sort of like reaching an opinion first, and then gathering evidence to support the opinion.
The best defense against bias in your DRE opinions is to continually remind yourself that there could be alternative explanations for each sign and symptom, and to not reach a final opinion until the entire evaluation has been completed.
The October 15, 2011 issue of Bottom Line/Personal contained a front page article about misdiagnoses in medicine. It struck me that DRE's face many of the same issues and challenges that medical doctors do in reaching opinions. According to the article, "Doctors routinely take a mental shortcut known as 'anchoring.' They quickly latch onto an idea about what's causing your symptoms." "Anchoring" is definitely something that DRE's have to guard against. For example, anchoring may be caused by what the arrestee says he/she has taken (true or not), what the arresting officer believes the person is under the influence of, or the substances and paraphernalia that were in the arrestee's possession. Guard against "anchoring" by asking yourself whether something else, including a medical condition, may be causing the signs and symptoms. Continually challenge yourself by asking yourself if there are alternative explanations. (As an aside, the article says that in US autopsy studies, "doctors misdiagnosed illnesses between 20% and 40% of the time.")
The July issue of Scientific American contained a column by Michael Shermer titled "The Believing Brain." Shermer wrote that "anchoring bias" occurs when one relies too heavily on one piece of information to make a decision. A DRE who decides that a person is under the influence of, say cannabis, because the person had bloodshot eyes, is an example of "anchoring bias." Shermer also writes about another type of relevant bias called "confirmation bias," in which one seeks and finds "confirming evidence in support of already existing beliefs and ignoring or reinterpreting disconfirming evidence." Sort of like reaching an opinion first, and then gathering evidence to support the opinion.
The best defense against bias in your DRE opinions is to continually remind yourself that there could be alternative explanations for each sign and symptom, and to not reach a final opinion until the entire evaluation has been completed.
Friday, September 23, 2011
Bureau of Justice Assistance Monograph on DRE, 1989
In cleaning out some file cabinets, I stumbled across a U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance Monograph titled "Drug Recognition Program," dated April 1989.
On the cover page, Charles P. Smith, the Director of the BJA, wrote in part:
"The Drug Recognition Process is a non-intrusive, standardized and systematic method of examining a person suspected of impairment due to alcohol and/or other drug abuse. Because of its promise for local law enforcement, the Bureau of Justice Assistance (BJA) has supported the efforts of the Department of Transportation's National Highway Traffic Safety Administration to accelerate pilot site demonstrations of this new technology."
The twenty-four page document provides a nice history of the development of the DRE program. It points out that the results of the Johns Hopkins Study (1984) and the LA Field Validation Study (1985) prompted NHTSA to work with the LAPD to develop a standardized curriculum for DRE training. It identifies the four pilot sites that were selected to establish DRE programs based on the LAPD program: metropolitan Phoenix, Denver and Boulder, Colorado, Nassau County, New York, and Virginia Beach, Virginia. Three additional pilot sites were selected in 1988: Indiana, Utah, and an expansion of the Los Angeles program to the Ventura County Sheriff's Department, the Long Beach Police Department, and agencies in Yolo County. "The California site is an expansion of the original Los Angeles program..." Thus, this Federal Monograph clearly recognizes the fact that the Los Angeles DRE program was recognized by the Federal Government as a useful tool in 1987. "The Drug Recognition Program will prove useful in many jurisdictions. It is an effective means of dealing with drivers who imperil others by getting behind the wheel while incapacitated by drugs."
As of the publication of this document, April, 1989, the program was called the "Drug Recognition Program." In subsequent years the program became known as the "DECP."
On the cover page, Charles P. Smith, the Director of the BJA, wrote in part:
"The Drug Recognition Process is a non-intrusive, standardized and systematic method of examining a person suspected of impairment due to alcohol and/or other drug abuse. Because of its promise for local law enforcement, the Bureau of Justice Assistance (BJA) has supported the efforts of the Department of Transportation's National Highway Traffic Safety Administration to accelerate pilot site demonstrations of this new technology."
The twenty-four page document provides a nice history of the development of the DRE program. It points out that the results of the Johns Hopkins Study (1984) and the LA Field Validation Study (1985) prompted NHTSA to work with the LAPD to develop a standardized curriculum for DRE training. It identifies the four pilot sites that were selected to establish DRE programs based on the LAPD program: metropolitan Phoenix, Denver and Boulder, Colorado, Nassau County, New York, and Virginia Beach, Virginia. Three additional pilot sites were selected in 1988: Indiana, Utah, and an expansion of the Los Angeles program to the Ventura County Sheriff's Department, the Long Beach Police Department, and agencies in Yolo County. "The California site is an expansion of the original Los Angeles program..." Thus, this Federal Monograph clearly recognizes the fact that the Los Angeles DRE program was recognized by the Federal Government as a useful tool in 1987. "The Drug Recognition Program will prove useful in many jurisdictions. It is an effective means of dealing with drivers who imperil others by getting behind the wheel while incapacitated by drugs."
As of the publication of this document, April, 1989, the program was called the "Drug Recognition Program." In subsequent years the program became known as the "DECP."
Monday, July 25, 2011
Support for tough sentencing of "first-time DUI offenders"
On July 24 and 25, 2011, the Detroit Free Press published a two-part series on DUI-sentencing disparities in the Detroit, Michigan area. The July 25th article highlighted the tough sentencing practices of an Oakland County (just north of Detroit) judge. Here is a link to that article.
http://www.freep.com/article/20110725/NEWS06/107250334/Part-2-Judge-among-toughest-nation-1st-time-DUI-offenders?odyssey=mod|newswell|text|FRONTPAGE|s
I support tough sentencing for even so-called "first time" offenders. As law enforcement officers know, rarely is a DUI driver caught the first time they drive while under the influence. Here is the letter I sent to the Detroit Free Press editor in support of the Judge's tough sentencing practices:
Dear Editor:
I applaud 48th District Court Judge Kimberly Small's practice of jailing most so-called "first-time DUI offenders." If every judge had a similar practice, those who drink or do drugs and drive would get the message that DUI is simply not acceptable. That if you drink or do drugs and drive you will be severely sanctioned. That changes the message from "try not to drink too much and drive," to "you will go to jail if you drink and drive." Defense attorney Hall damns Judge Small with faint praise when he says "It's so she can say she's tough on crime." Unfortunately, Hall's statement suggest that DUI isn't a "real crime." I hope that other judges, including those south of 8 Mile Rd., will realize, as Judge Small has, that one doesn't have a right to endanger innocent citizens by drinking and driving.
Thomas E. Page, Detroit
On July 31, 2011, the Detroit Free Press published the following edited letter:
I applaud 48th District Judge Kimberly Small's practice of jailing most so-called first-time DUI offenders. If every judge had a similar practice, those who drink or do drugs and drive would get the message that DUI is simply not acceptable -- that if you drink or do drugs and drive you will be severely sanctioned.
That changes the message from "try not to drink too much and drive" to "you will go to jail if you drink and drive."
I hope that other judges, including those south of 8 Mile Road, will realize, as Judge Small has, that one doesn't have a right to endanger innocent citizens by drinking and driving.
Thomas E. Page, retired from the Los Angeles Police Department, Detroit
http://www.freep.com/article/20110725/NEWS06/107250334/Part-2-Judge-among-toughest-nation-1st-time-DUI-offenders?odyssey=mod|newswell|text|FRONTPAGE|s
I support tough sentencing for even so-called "first time" offenders. As law enforcement officers know, rarely is a DUI driver caught the first time they drive while under the influence. Here is the letter I sent to the Detroit Free Press editor in support of the Judge's tough sentencing practices:
Dear Editor:
I applaud 48th District Court Judge Kimberly Small's practice of jailing most so-called "first-time DUI offenders." If every judge had a similar practice, those who drink or do drugs and drive would get the message that DUI is simply not acceptable. That if you drink or do drugs and drive you will be severely sanctioned. That changes the message from "try not to drink too much and drive," to "you will go to jail if you drink and drive." Defense attorney Hall damns Judge Small with faint praise when he says "It's so she can say she's tough on crime." Unfortunately, Hall's statement suggest that DUI isn't a "real crime." I hope that other judges, including those south of 8 Mile Rd., will realize, as Judge Small has, that one doesn't have a right to endanger innocent citizens by drinking and driving.
Thomas E. Page, Detroit
On July 31, 2011, the Detroit Free Press published the following edited letter:
I applaud 48th District Judge Kimberly Small's practice of jailing most so-called first-time DUI offenders. If every judge had a similar practice, those who drink or do drugs and drive would get the message that DUI is simply not acceptable -- that if you drink or do drugs and drive you will be severely sanctioned.
That changes the message from "try not to drink too much and drive" to "you will go to jail if you drink and drive."
I hope that other judges, including those south of 8 Mile Road, will realize, as Judge Small has, that one doesn't have a right to endanger innocent citizens by drinking and driving.
Thomas E. Page, retired from the Los Angeles Police Department, Detroit
Thursday, June 23, 2011
Neudexta (Avanir): newly approved drug contains DXM
For over 20 years, I have subscribed to The Medical Letter on Drugs and Therapeutics. This nonprofit publication does not accept advertising. Its subscriber base is primarily medical doctors. Occasionally, I'll cite a Medical Letter article (www.medicalletter.org) on new drugs.
The June 13, 2011 issue has an overview of newly FDA- approved Nuedexta / Avanir. This new drug contains dextromethorphan and quinidine sulfate, and is indicated for the oral treatment of pseudobulbar affect in patients with ALS (Lou Gehrig's disease) and multiple sclerosis. "Pseudobulbar affect, also known as pathological laughter and crying or emotional lability, is common in ALS and MS." Some of the side effects noted in The Medical Letter of this drug combination are nausea, headache, diarrhea, fatigue and dizziness.
Remember to interview your suspect/arrestee about medical conditions, and the treatment they are receiving for the condition (s). Better to learn during the investigation phase, rather than be surprised in court!
The June 13, 2011 issue has an overview of newly FDA- approved Nuedexta / Avanir. This new drug contains dextromethorphan and quinidine sulfate, and is indicated for the oral treatment of pseudobulbar affect in patients with ALS (Lou Gehrig's disease) and multiple sclerosis. "Pseudobulbar affect, also known as pathological laughter and crying or emotional lability, is common in ALS and MS." Some of the side effects noted in The Medical Letter of this drug combination are nausea, headache, diarrhea, fatigue and dizziness.
Remember to interview your suspect/arrestee about medical conditions, and the treatment they are receiving for the condition (s). Better to learn during the investigation phase, rather than be surprised in court!
More on the importance of Report Writing
The June, 2011 issue of The Thin Blue Line, the publication of the Los Angeles Police Protective League, contains a nice article by Detective Tyler Inzen. Detective Inzen emphasizes that "You can only control what you can control." How true. One can't fix all the wrongs of society, or stop all the crime in one's community. But as a police officer, you can control what you put down in writing. And as Gary Ingemunson has pointed out in The Thin Blue Line, short of testifying in court, writing a report may be the most important thing an officer does. As I have emphasized in prior posts, be scrupulously accurate and honest in all of your reports. Thoroughness must preempt brevity.
Thursday, June 16, 2011
Cell phones and "behavioral toxicity"
Neil Rubin, a Detroit News columnist, wrote an article on cell-phone dangers that was published in the June 16, 2011, edition of the paper. Mr. Rubin pointed out that there really is no proof of danger from cell phone radiation. As I read the article, I thought of a term in the drug abuse field that is relevant to cell-phone dangers: "Behavioral Toxicity." I e-mailed the following letter (in part) to Mr. Rubin.
There are few, if any, documented cases in which an individual has died due to an overdose of marijuana (spelled "marihuana" in Michigan's legal code) or LSD. However, if an LSD user thinks he can fly like Superman and jumps off the Penobscot Building, that person will assuredly die. And if a driver who has used marijuana doesn't "think" to stop at a railroad crossing and strikes a passing train, that person will also die. Similarly, the cell phone radiation may not cause brain tumors. If a driver, however, talks on a cell phone (and/or texts) while driving, that person has a much higher liklihood of being involved in a crash, possibly a fatal one. This is an example of what can be called "behavioral toxicity."
There are few, if any, documented cases in which an individual has died due to an overdose of marijuana (spelled "marihuana" in Michigan's legal code) or LSD. However, if an LSD user thinks he can fly like Superman and jumps off the Penobscot Building, that person will assuredly die. And if a driver who has used marijuana doesn't "think" to stop at a railroad crossing and strikes a passing train, that person will also die. Similarly, the cell phone radiation may not cause brain tumors. If a driver, however, talks on a cell phone (and/or texts) while driving, that person has a much higher liklihood of being involved in a crash, possibly a fatal one. This is an example of what can be called "behavioral toxicity."
Wednesday, February 23, 2011
Your report must match the video!!
This is an update to this incident. On March 17, 2011, Sergeant Maniere pleaded "no contest" to the charge of filing a false police report. He stated that he still hopes to obtain another job in law enforcement. The original post follows.
As we approach the 20th anniversary of the so-called Rodney King incident, we will certainly be bombarded with media retrospectives on the significance of the video-taping of King's arrest. Since March of 1991, audio and video recordings of police-citizen encounters have become ubiquitous. As I teach officers, you must assume that everything you do is being recorded. And that defense attorneys, and even Internal Affairs investigators, may pore over your report to see if every detail matches the recording of the incident or encounter.
Today's (February 23, 2011) Detroit News reported on the firing and probable prosecution of a suburban Detroit patrol sergeant. Apparently, on two separate occasions, the sergeant's written report, that detailed the seizure of drugs from motorists, did not match the video recording of the incidents. In fact, in one of the cases, the sergeant was accompanied by a television reporter with a camera. The reporter's camera recorded the finding of drug's in an arrestee's vehicle. I know it's hard to believe, but this sergeant, even though he knew he was being filmed by a reporter, wrote a report that was at odds with what had occurred. According to a television news report, the primary issue in one of the cases was that the recording showed that the drugs were in a closed glove box. The sergeant's report said the drugs were in plain view on the vehicle's front seat. The newspaper report follows this blog entry. Be scrupulously honest in every report. And if your partner writes the report, and puts your name on it, it's your report too.
Discrepancies in arrest reports, video cited in Warren cop's firing
Decorated veteran patrol sergeant may face criminal charges
Christine Ferretti / The Detroit News
Warren — Criminal charges are being evaluated for a decorated road patrol sergeant who was fired over discrepancies between written reports and patrol car footage involving two separate traffic stops that resulted in drug-related arrests.
Warren Deputy Police Commissioner Louis Galasso said Sgt. Tim Maniere was terminated Friday following an internal investigation the department launched in January.
Galasso said internal affairs uncovered two separate cases last year where Maniere's written reports didn't match patrol cruiser video.
Each incident resulted in felony drug arrests.
"The cases had nothing to do with importing or planting any type of narcotic or drug," Galasso said. "However, it did have something to do with the evidentiary steps that would follow a normal search of a vehicle. The steps were improper."
Findings from the department's internal investigation were turned over to the Macomb County Prosecutor's Office on Tuesday for review.
A telephone number listed for Maniere was disconnected.
Galasso said the investigation began after Maniere failed to appear for an evidentiary hearing in Macomb County Circuit Court related to one of the arrests in question. A TV Warren journalist was doing a ride-along with Maniere on the July evening when a suspect was arrested on a felony narcotics charge. Galasso said footage from the patrol car and video captured by the television crew was to be viewed at the hearing.
Maniere's absence led to the case's dismissal.
Galasso said Maniere was placed on paid administrative leave several days later while officials looked into the claims the video footage didn't match his written report. Galasso said a second arrest conducted by Maniere in mid-August appeared to have similar circumstances. That case was handled through a plea deal, he said.
Galasso said the incidents have shocked and saddened the department.
Maniere, who'd been a supervisor for about three years, has always been an employee in good standing, earning awards and commendations, Galasso said.
"He was a very hard-working, dedicated officer. It was a very difficult separation that we had," Galasso said of the 15-year veteran. "This guy really was not the type of officer that did anything for personal gain or satisfaction. It was just a certain zeal that he had for law enforcement. Unfortunately, he may have been a little too overzealous."
The Warren Police Command Officers Association hasn't decided whether to challenge Maniere's dismissal.
cferretti@detnews.com
(313) 222-2069
As we approach the 20th anniversary of the so-called Rodney King incident, we will certainly be bombarded with media retrospectives on the significance of the video-taping of King's arrest. Since March of 1991, audio and video recordings of police-citizen encounters have become ubiquitous. As I teach officers, you must assume that everything you do is being recorded. And that defense attorneys, and even Internal Affairs investigators, may pore over your report to see if every detail matches the recording of the incident or encounter.
Today's (February 23, 2011) Detroit News reported on the firing and probable prosecution of a suburban Detroit patrol sergeant. Apparently, on two separate occasions, the sergeant's written report, that detailed the seizure of drugs from motorists, did not match the video recording of the incidents. In fact, in one of the cases, the sergeant was accompanied by a television reporter with a camera. The reporter's camera recorded the finding of drug's in an arrestee's vehicle. I know it's hard to believe, but this sergeant, even though he knew he was being filmed by a reporter, wrote a report that was at odds with what had occurred. According to a television news report, the primary issue in one of the cases was that the recording showed that the drugs were in a closed glove box. The sergeant's report said the drugs were in plain view on the vehicle's front seat. The newspaper report follows this blog entry. Be scrupulously honest in every report. And if your partner writes the report, and puts your name on it, it's your report too.
Discrepancies in arrest reports, video cited in Warren cop's firing
Decorated veteran patrol sergeant may face criminal charges
Christine Ferretti / The Detroit News
Warren — Criminal charges are being evaluated for a decorated road patrol sergeant who was fired over discrepancies between written reports and patrol car footage involving two separate traffic stops that resulted in drug-related arrests.
Warren Deputy Police Commissioner Louis Galasso said Sgt. Tim Maniere was terminated Friday following an internal investigation the department launched in January.
Galasso said internal affairs uncovered two separate cases last year where Maniere's written reports didn't match patrol cruiser video.
Each incident resulted in felony drug arrests.
"The cases had nothing to do with importing or planting any type of narcotic or drug," Galasso said. "However, it did have something to do with the evidentiary steps that would follow a normal search of a vehicle. The steps were improper."
Findings from the department's internal investigation were turned over to the Macomb County Prosecutor's Office on Tuesday for review.
A telephone number listed for Maniere was disconnected.
Galasso said the investigation began after Maniere failed to appear for an evidentiary hearing in Macomb County Circuit Court related to one of the arrests in question. A TV Warren journalist was doing a ride-along with Maniere on the July evening when a suspect was arrested on a felony narcotics charge. Galasso said footage from the patrol car and video captured by the television crew was to be viewed at the hearing.
Maniere's absence led to the case's dismissal.
Galasso said Maniere was placed on paid administrative leave several days later while officials looked into the claims the video footage didn't match his written report. Galasso said a second arrest conducted by Maniere in mid-August appeared to have similar circumstances. That case was handled through a plea deal, he said.
Galasso said the incidents have shocked and saddened the department.
Maniere, who'd been a supervisor for about three years, has always been an employee in good standing, earning awards and commendations, Galasso said.
"He was a very hard-working, dedicated officer. It was a very difficult separation that we had," Galasso said of the 15-year veteran. "This guy really was not the type of officer that did anything for personal gain or satisfaction. It was just a certain zeal that he had for law enforcement. Unfortunately, he may have been a little too overzealous."
The Warren Police Command Officers Association hasn't decided whether to challenge Maniere's dismissal.
cferretti@detnews.com
(313) 222-2069
Monday, January 24, 2011
Effective Courtroom Testimony, Part 4
Credibility: What you say and how you say it!
It's a fact of human nature that the veracity, the truthfulness of a statement, is assessed by not only listening to (or reading for that matter) words, but by evaluating the individual's non-verbal clues. These non-verbal clues include the person's appearance, such as the clothes he/she is wearing, and the person's demeanor, which includes their body language. If during the course of our duties we ask a suspect if he/she has any drugs in his/her possession, we watch very closely, even below the level of consciousness, how the person responds. A "no" by the person isn't accepted as fact! Even the United States Congress interviews witnesses in person, rather than reading written interrogatories. Physicians want to see the patient, rather than just reading the chart.
And jurors, since they are human beings, will judge your credibility, your believability, not just on what you say on the witness stand, or what you wrote in the report, but on your appearance and demeanor. You should strive to use this fact to enhance your credibility.
As the dictum goes, first impressions are lasting. Even before you have taken the stand, the jury is evaluating your credibility, your fairness, your professionalism. Here are some basic guidelines for appearing in court. Some may seem quite humorous, quite self-evident. But trust me, officers do these things!
I know that different jurisdictions have different policies regarding courtroom attire, particularly regarding duty uniforms. I certainly do not intend to conflict with your department's policy. Wear what your department says to wear.
Regardless, however, I suggest you think of appearing in court as appearing for a promotional interview. If you wouldn't wear something for the interview, then it's probably not a good idea to wear it in court. Generally, dress conservatively and be well-groomed. Avoid fancy and ostentatious jewelry, big belt buckles, cowboy boots (unless you are in Texas of course!), NASCAR-style logo wear, and dark sunglasses. Avoid lapel pins and tie bars , such as those depicting pigs, handcuffs, and religious or political symbols, that may distract from your credibility. Finally, avoid jangling keys and jangling coins in your pockets.
In a future blog entry I will discuss the importance of your demeanor on the witness stand itself.
It's a fact of human nature that the veracity, the truthfulness of a statement, is assessed by not only listening to (or reading for that matter) words, but by evaluating the individual's non-verbal clues. These non-verbal clues include the person's appearance, such as the clothes he/she is wearing, and the person's demeanor, which includes their body language. If during the course of our duties we ask a suspect if he/she has any drugs in his/her possession, we watch very closely, even below the level of consciousness, how the person responds. A "no" by the person isn't accepted as fact! Even the United States Congress interviews witnesses in person, rather than reading written interrogatories. Physicians want to see the patient, rather than just reading the chart.
And jurors, since they are human beings, will judge your credibility, your believability, not just on what you say on the witness stand, or what you wrote in the report, but on your appearance and demeanor. You should strive to use this fact to enhance your credibility.
As the dictum goes, first impressions are lasting. Even before you have taken the stand, the jury is evaluating your credibility, your fairness, your professionalism. Here are some basic guidelines for appearing in court. Some may seem quite humorous, quite self-evident. But trust me, officers do these things!
I know that different jurisdictions have different policies regarding courtroom attire, particularly regarding duty uniforms. I certainly do not intend to conflict with your department's policy. Wear what your department says to wear.
Regardless, however, I suggest you think of appearing in court as appearing for a promotional interview. If you wouldn't wear something for the interview, then it's probably not a good idea to wear it in court. Generally, dress conservatively and be well-groomed. Avoid fancy and ostentatious jewelry, big belt buckles, cowboy boots (unless you are in Texas of course!), NASCAR-style logo wear, and dark sunglasses. Avoid lapel pins and tie bars , such as those depicting pigs, handcuffs, and religious or political symbols, that may distract from your credibility. Finally, avoid jangling keys and jangling coins in your pockets.
In a future blog entry I will discuss the importance of your demeanor on the witness stand itself.
Wednesday, January 5, 2011
Effective Courtroom Testimony, Part 3
The Pre-Trial Conference
Over the years, I've conducted a number of informal surveys of prosecutors and officers regarding testifying in court. The number one item on each group's "wish list" is for a bona-fide pre-trial conference. By "bona-fide," I mean an actual face-to-face sit-down in advance of the anticipated testimony date, and NOT the all-too-common two-minute discussion in the courtroom itself.
At the pre-trial conference, the parties should thoroughly discuss all aspects of the case. The officer should point out possible weaknesses in the case, including omissions, errors, and inconsistencies in the report. The prosecutor may identify some potential defense challenges,including challenges to the officer's credibility. The pre-trial conference is also an opportunity for the parties to build rapport and trust.
The prosecutor prepares the witness-officer for the trial by providing an overview of the direct examination process. Usually, the prosecutor will remind the officer to avoid jargon and slang while testifying, to maintain a calm demeanor (particularly when challenged by the defense), not to volunteer information when on the stand, to create charts or other visuals, and pick-up evidence as needed.
The pre-trial conference is a perfect opportunity for the officer to provide the prosecutor with an up-to-date copy of his/her curriculum vitae (resume), including a one-page summary.
Finally, it's a common tactic for a defense attorney to ask the officer if he/she had a pre-trial conference with the prosecutor. Do not hesitate to honestly answer this question. There is nothing wrong, and everything right, with having a pre-trial conference with the prosecutor. In fact, jurors expect it.
Over the years, I've conducted a number of informal surveys of prosecutors and officers regarding testifying in court. The number one item on each group's "wish list" is for a bona-fide pre-trial conference. By "bona-fide," I mean an actual face-to-face sit-down in advance of the anticipated testimony date, and NOT the all-too-common two-minute discussion in the courtroom itself.
At the pre-trial conference, the parties should thoroughly discuss all aspects of the case. The officer should point out possible weaknesses in the case, including omissions, errors, and inconsistencies in the report. The prosecutor may identify some potential defense challenges,including challenges to the officer's credibility. The pre-trial conference is also an opportunity for the parties to build rapport and trust.
The prosecutor prepares the witness-officer for the trial by providing an overview of the direct examination process. Usually, the prosecutor will remind the officer to avoid jargon and slang while testifying, to maintain a calm demeanor (particularly when challenged by the defense), not to volunteer information when on the stand, to create charts or other visuals, and pick-up evidence as needed.
The pre-trial conference is a perfect opportunity for the officer to provide the prosecutor with an up-to-date copy of his/her curriculum vitae (resume), including a one-page summary.
Finally, it's a common tactic for a defense attorney to ask the officer if he/she had a pre-trial conference with the prosecutor. Do not hesitate to honestly answer this question. There is nothing wrong, and everything right, with having a pre-trial conference with the prosecutor. In fact, jurors expect it.
Tuesday, December 21, 2010
Effective Courtroom Testimony, part 1
Courtroom as Classroom
In my introductory post on this topic, I mentioned that the officer is a witness-teacher in court. To understand this concept, it's helpful to think of the courtroom as a classroom. And in this "classroom," the witness is the teacher. The "students" make up the jury. But unlike a college class that students enroll in, these "students" didn't ask to attend this "class." They were summoned to attend: told to set aside their work, their plans, in effect, their lives. Further, these students may be prohibited from asking questions of the teacher. They may even be told to not discuss what they learn from the teacher. In this courtroom as classroom analogy, the prosecutor is the designated student. It's almost as if the juror-students selected someone to ask all the questions of the teacher that they can't ask. As the designated student, the prosecutor asks questions from the students' perspective, sometimes asking the teacher-witness to explain. For example, "Officer, you used the term 'miosis.' Please explain what you mean by that term." What, then is the role of the defense attorney. Well, to a large degree, the defense attorney wants to testify! But he/she can't do that: only the witness can testify. So the defense "testifies" by making statements, and then asking the witness to agree with him/her. That's what we call leading questions. Example: "Officer, you don't know what my client's normal blood pressure is, right?" The judge is the last part of this courtroom as classroom analogy. The judge makes sure all the rules are followed, and decides disputes. The judge may even mete out discipline when the judge's rulings are challenged. So the judge can be thought of as a sports referee, or possibly as a school principal.
Thinking of the courtroom as a classroom provides some interesting challenges, and opportunities, for the officer-witness. I will discuss this in more detail in future posts.
In my introductory post on this topic, I mentioned that the officer is a witness-teacher in court. To understand this concept, it's helpful to think of the courtroom as a classroom. And in this "classroom," the witness is the teacher. The "students" make up the jury. But unlike a college class that students enroll in, these "students" didn't ask to attend this "class." They were summoned to attend: told to set aside their work, their plans, in effect, their lives. Further, these students may be prohibited from asking questions of the teacher. They may even be told to not discuss what they learn from the teacher. In this courtroom as classroom analogy, the prosecutor is the designated student. It's almost as if the juror-students selected someone to ask all the questions of the teacher that they can't ask. As the designated student, the prosecutor asks questions from the students' perspective, sometimes asking the teacher-witness to explain. For example, "Officer, you used the term 'miosis.' Please explain what you mean by that term." What, then is the role of the defense attorney. Well, to a large degree, the defense attorney wants to testify! But he/she can't do that: only the witness can testify. So the defense "testifies" by making statements, and then asking the witness to agree with him/her. That's what we call leading questions. Example: "Officer, you don't know what my client's normal blood pressure is, right?" The judge is the last part of this courtroom as classroom analogy. The judge makes sure all the rules are followed, and decides disputes. The judge may even mete out discipline when the judge's rulings are challenged. So the judge can be thought of as a sports referee, or possibly as a school principal.
Thinking of the courtroom as a classroom provides some interesting challenges, and opportunities, for the officer-witness. I will discuss this in more detail in future posts.
Sunday, December 19, 2010
Effective Courtroom Testimony, Introduction
Testifying in court is stressful, as it should be. In my opinion, there are three primary reasons that testifying is stressful: (1) testifying is a form of public speaking; (2) for a police officer, testifying is in many ways the opposite of what he/she does every day - take control. In court, the officer cedes control to the attorneys and the judge, and primarily just answers the questions; and (3) testifying is serious business. A person's freedom may be at stake, and justice for the victim may depend upon the testimony.
I've heard many famous entertainers explain that they still get "butterflys" before taking the stage, even though they may have sang the same song thousands of times. "Butterflys" in the stomach is a symptom of stress - good stress. If you don't feel some stress before taking the witness stand, perhaps you're not taking your responsibility as seriously as you should.
In future entries, I will discuss many different aspects of testifying in court, including the various types of questions that will be asked. I will also provide some "tips" in order to help you be a better communicator, actually teacher, in court.
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