Professional Documents
Culture Documents
Returning
Military
Veterans
August 2010
Volume 79
Number 8
United States
Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001
The attorney general has determined The Returning Military Law enforcement agencies must
that the publication of this periodical
is necessary in the transaction of the
public business required by law. Use
Veteran
By Jeff Hink
1 adequately prepare for the return
home of their deployed personnel.
of funds for printing this periodical has
been approved by the director of the
Office of Management and Budget.
“ Returning
law enforcement
veterans have served
the nation honorably
and heroicly
”
“
of troops who have served
in combat may suffer from
post-traumatic stress disorder
Unlike physical (PTSD), an anxiety condition
wounds of war, these that can develop after direct or
conditions…often indirect exposure to a terrify-
go unrecognized and ing event or ordeal in which
unacknowledged. someone inflicted or threatened
”
grave bodily harm.7 Unlike
physical wounds of war, these
conditions—although they af-
fect mood, thoughts, and behav-
Captain Jeff Hink serves with the Redondo Beach,
California, Police Department. ior—usually remain invisible to
other service personnel, family
© Jeff Hink
August 2010 / 3
ensure that these veterans are have engaged the MLP since unit commander, updates on
welcomed and reacclimated to its inception. “The goal of the department policy and proce-
their agency with open arms and program is to ensure the vet- dure, a meeting with a depart-
that other personnel know what eran remains part of the LAPD ment psychologist, firearms
to expect during the transition family during their deployment qualification, and a tactical
period. Fortunately, programs and to look out for their mental refresher course.15 Each unit
and services exist at some agen- health.”12 Two full-time military within the LASD staffs one of
cies that can serve as models. liaison officers (MLO) staff the department’s 80 MLOs who
Each of the highlighted the program at a cost, includ- assist their unit commander,
examples has proven success- ing salaries, benefits, and other troubleshoot issues, and provide
ful for the organizations that overhead, of about $300,000 per advice and counseling to return-
have created them. The size year.13 ing veterans. The LASD also
“
of the agency and the number has established a “Vets for Vets”
of personnel deployed should peer support program to provide
dictate the appropriate reserv- long-term mentorship, guid-
ist reacclimation program. Law ance, and assistance. “If you are
enforcement executives should Proper preparation paying attention to the veterans
realize the role such programs will equip the and communicating, you stand
will have in maintaining healthy agency with the a better chance of achieving
agencies. tools and resources success.”16 “Training and dia-
necessary to ensure logue are key attributes of the
Military Liaison Program program so that other depart-
that these veterans
Created in 2003, the Los ment personnel don’t think that
Angeles Police Department’s
are welcomed and
reacclimated…. the returning veterans have been
(LAPD) Military Liaison
”
off on a paid vacation.”17
Program (MLP) strives to offer
a central point of contact to The Santa Monica
handle the many concerns and Experience
inquiries from deployed of- For small and moderate-size
ficers’ families. The MLP has Military Activation agencies, other alternatives ex-
evolved to include assisting per- Committee ist. For instance, the Santa Mon-
sonnel before, during, and after In 2001, the Los Angeles ica Police Department (SMPD)
their military leave with any of County Sheriff’s Department has had 6 of its 200 officers
their needs, including benefits, (LASD) implemented a Military deployed since the beginning of
promotions, and transfers. The Activation Committee (MAC) the Gulf War in 2001. The agen-
department also has instituted a to address the needs of reserv- cy created an informal program
reintegration program to pro- ists called to active duty.14 Since to address returning veterans.
vide returning personnel retrain- 2002, the agency has seen about According to the SMPD deputy
ing, physical and mental health 500 of its 10,000 sworn person- chief of police, these employees
assessments, and background nel deployed. generally have a celebrity-like
checks.11 About 500 of LAPD’s The 4-day reintegration status with coworkers during
9,500 officers have been de- program developed by the MAC the first few days of their return
ployed to the war effort and includes a welcome from the to work, which has helped
© Jeff Hink
August 2010 / 5
may hire or currently employ organization and the number of Department Education
military reservists, should con- personnel experiencing military Educating department per-
sider a formalized plan to pro- deployments can determine if sonnel about what they should
vide veterans and their families the position is a full-time or expect before, during, and
the assistance and support they ancillary role. Smaller agencies after deployment and about
need and to facilitate the smooth may consider employing a civil- PTSD will reduce misconcep-
transition of the employee to ian in a full- or part-time capac- tions and give employees a
and from the department. Such ity, depending on the needs of broad understanding of agency
a program also can help person- the organization and its budget- protocols; the issue of PTSD
nel better understand the situa- ary constraints. in the military; and how the
“
tion. Further, it could open lines condition affects veterans,
of communication between the friends, and family members.
agency and representatives from The training should introduce
the various branches of the mili- department members to the
tary. Four important attributes warning signs of PTSD and
of this plan are
Law enforcement
organizations… the available treatment options
1) the creation of an and also reduce the possibil-
MLO position within
should…provide
veterans and their ity that employees will fear or
the organization; avoid returning veterans.
families the assistance
2) the provision of education to and support they Employee Outreach
department personnel about
need….
”
the pre- and postdeployment Organizations can reach
process; out in a number of ways. For
example, agencies should
3) outreach to deployed em- consider providing time for
ployees and their families; their reservists to prepare
and Departments should choose for military activation.22 A
4) the implementation of a a rational, mature, highly department-sponsored celebra-
standardized reacclimation respected individual to fill this tion just prior to employees’
process for returning position—ideally, a veteran departure can help reassure
personnel. familiar with military protocol them that the agency looks
and procedure. The MLO will forward to their return to
Liaison Officer facilitate communication be- work. During the deployment,
The LAPD and the LASD tween the deployed employee designated members of the
have achieved enormous suc- and the organization. The department, such as the MLO,
cess in developing and imple- person will assist, counsel, and should maintain close contact
menting the MLO position in mentor the reservist before, dur- with the deployed veterans’
their agencies. This greatly ing, and after deployment. The family members to identify
helps these departments to MLO also may function as the needs that the agency can
maintain awareness of and keep liaison between the agency and assist with. Through traditional
close contact with deployed representatives from the various mail and more modern means,
personnel. The size of the branches of the armed forces. the department can maintain
August 2010 / 7
Endnotes 8
Jaycox and Tanielian, xx. 14
U.S. Department of Justice, Office of
1
U.S. Department of Defense,
9
“High Rate of Suicides Seen in Sol- Community Oriented Policing Services, 22.
“National Guard (in Federal Status) and diers”; http://articles.latimes.com/2007/ 15
“4 Critical Days: LASD’s Transi-
Reserve Activated as of November 25, aug/16/nation/na-suicides16 (accessed tion from Foreign Battlefield to Domestic
2008,” http://www.defense.gov/Releases/ March 22, 2010). Streets”; http://www.policeone.com/patrol-
Release.aspx?ReleaseID=12373 (accessed
10
K. Hefling, “VA Chief Addresses issues/articles/1690036-4-critical-days-
March 22, 2010). Veteran Suicides,” The Bakersfield Cali- LASDs-transition-from-foreign-battlefield-
2
S. Curran and E. Ritchie, “Warrior fornian, February 13, 2008. to-domestic-streets/ (accessed March 22,
Transition by Army Reserve and National
11
“Military Liaison Program”; http:// 2010).
Guard Personnel from Combat Operations lapdonline.org/search_results/content_ 16
LASD Commander Lynda Castro,
in Iraq to Policing in the United States” basic_view/6491 (accessed March 22, who had led the MAC since 2003, interview
(presentation, 113th Annual Convention of 2010); and U.S. Department of Justice, by author.
the International Association of Chiefs of Office of Community Oriented Policing 17
Ibid.
Police, Police Psychological Services Sec- Services. Any department considering 18
Phil Sanchez, interview by author.
tion, Boston, MA, October 14, 2006). measures that involve physical and psy- 19
Ibid.
3
L. Jaycox and T. Tanielian, ed., Invis- chological exams and background checks 20
Ibid.
ible Wounds of War (Santa Monica, CA: as part of the reemployment process 21
Officer Douglas Woodhams, interview
RAND Corporation, 2008), xix. must ensure that they comply with the by author.
4
Ibid. Uniformed Services Employment and 22
Organizations must be aware of the
5
U.S. Department of Justice, Office of Reemployment Rights Act (USERRA) protections provided to employees under
Community Oriented Policing Services, of 1994. the Family and Medical Leave Act (FMLA)
Combat Deployment and the Returning
12
LAPD Captain Duane Hayakawa, and, perhaps, consider allowing additional
Police Officer (Washington, DC, 2008). who oversaw the program from 2004 to time for personnel to prepare for military
6
Jaycox and Tanielian, 5. 2008, interview by author. activation.
7
Jaycox and Tanielian, 3.
13
Ibid. 23
Woodhams.
Wanted:
Notable Speeches
A
task force team was driving back to Following the pleasant exchange, the
the office to brief the squad super- squad supervisor tilted his head slightly,
visor following a recent operation. smiled, and asked the team leader what he
The squad supervisor had been on-site and would do differently in the next operation.
had noted some operational challenges for Self-assured because of the supervisors ob-
the team leader. Luckily, the squad pitched in vious encouragement and recognition of his
where needed and overcame these, resulting in strengths, the team leader quickly leaned in
a successful and safe operation. toward the supervisor and outlined a number
When they got back to the office, the squad of things. The team leader then asked the su-
supervisor asked the team leader into his office pervisor what he thought. The supervisor also
for what the team leader thought would be a leaned in and nodded as he commended the
serious rebuke. Having been on other opera- team leader on a good, honest self-assessment
tions throughout his career, he knew that many and added a few comments of his own. The
supervisors seemingly took great pleasure at team leader nodded in agreement. The super-
chastising people when they made mistakes. visor asked if there was anything more that
The squad supervisor was relatively new to they did not cover. The team leader smiled as
the squad, and this was his first operation ob- he shook his head, thanked the supervisor for
serving the team leader. As they walked into such a productive debriefing, and commented
the office, the supervisor, who had arranged on how excited he was to put some of the new
two chairs around a small unobtrusive coffee ideas into action on the next operation.
table, asked the team leader to make himself Reading and understanding how to bring
comfortable. By averting his eyes from the out the best in people is the great leadership
supervisor, the team leader displayed his non- challenge. Effective leaders learn to recognize
verbal discomfort because he knew what he comfort from discomfort in their people’s de-
could have done better. The supervisor noted meanor and know that it is easier to teach and
this and began speaking. To the team leader’s mentor by beginning an instructive dialogue
surprise, the squad supervisor congratulated with what went well. When the leader can
him on the successful operation and com- nonverbally de-escalate discomfort and begin
mended him for his excellent ideas. As the an enlightening dialogue with all that went
squad supervisor chatted with him, the team right, many team members will inevitably
leader began to open up a bit more. The squad want to do better and will continue to strive
supervisor, a keen observer of nonverbal be- for excellence because they know it is recog-
havior, recognized that the team leader was nized by their leaders.
aware of some of his recent shortcomings.
The squad supervisor also realized that he had Special Agent Robin K. Dreeke, an instructor at the
effectively de-escalated the team leader’s dis- Counterintelligence Training Center and an adjunct
comfort, resulting in his being in a better state faculty member of the Leadership Development
Institute, prepared this Leadership Spotlight.
of mind to discuss his recent challenges.
August 2010 / 9
Perspective
Maintaining Ethical
Behavior
By George Cartwright, M.A.
© Photos.com
“
above reproach. However, this unethical behavior. To this
does not mean that properly end, adopting counternorms
modeled ethical behavior does and falling into groupthink
not deserve recognition. Public Why do people represent the two most danger-
acknowledgment of excep- sometimes behave ous hazards that organizations
tional principled conduct pro- unethically? may encounter.
vides other personnel the op- If, through words or deeds,
portunity to visualize exactly leaders have sent the mes-
”
what the department expects sage that the agency will
from them. To identify issues tolerate unethical behavior,
and understand consequences, the organization may adopt
people have to be educated. counternorms, employee-ac-
Through a simple assessment, leaders can cepted practices that act contrary to prevailing
determine if employees receive sufficient instruc- ethical standards.3 For example, the social order
tion. Each negative answer to several questions has clearly identified such concepts as being open
exponentially amplifies the likelihood of unethical and honest, following the rules, and acting as a
behavior.2 team as valuable traits. Agencies with employees
• Has the agency actively promoted an guided by counternorms value being secretive and
environment of ethics and professionalism? devious and doing “whatever it takes” to get the
• Do leaders encourage employees to act job done. Shifting between proper standards and
according to the spirit, as well as the letter, counternorms can create ambiguity, which may
of the law? lead to unethical conduct.
In an environment rife with unethical behav-
• Does the performance appraisal system
ior, employees may exhibit groupthink, a mode of
feature an ethics component?
thinking where members of a group show more
• Are personnel expected to play it safe, interest in unanimity than in critical analysis of the
rather than bring attention to problems? issue at hand. Such personnel try to avoid focusing
• Is communication open, truthful, and harsh judgment on the ideas of their leaders or col-
unrestricted? leagues.4 Inherent dangers and pitfalls arise in this
August 2010 / 11
situation. “Usually, the more complex an issue, Society’s guardians value courage above most
the more likely groupthink can take over; people any characteristic, considering it an indispensable
are less likely to disagree when they don’t have all commodity. Law enforcement personnel represent
the community’s last line of defense. It is the of-
the facts. It is a process of rationalization that sets
in when members of a team begin to think alike. ficers who run toward the gunfire. Across the na-
It occurs when a group places higher priority on tion every day, agencies conduct training on how
organizational counternorms that lead to organi- to remain courageous under fire. Yet, does it not
zational benefits, thus encouraging and supporting require bravery to make ethical decisions? While
unethical behavior.”5 agencies likely will not dispute that fact, how often
do officers receive ethics training? Of course, law
Important Choices enforcement personnel must hone the skills that
When faced with an ethical dilemma, some could mean the difference between life and death.
people have difficulty putting aside their ego and However, officers face ethical predicaments more
asking for feedback. According to experts, emo- often than shootouts in the street. Moreover, ethi-
tionally intelligent individuals cal breaches have a tremen-
deny their ego, possess self- dous potential to ruin careers.
“
confidence, and seek counsel Why does the subject not
from others prior to making receive more attention? Per-
tough choices.6 Law enforce- haps, the very word ethics
ment officers are self-confident …does it not can raise many questions. Is
and intelligent, so why would require bravery it just a fancy word for do-
they not do so? For them, it is to make ethical ing the right thing? Will it be
easier said than done. They feel decisions? interpreted as another way of
that asking someone else for controlling people under the
”
feedback requires them to be guise of a moral code? Will the
vulnerable to that person. training really make a differ-
And, in light of the ex- ence? It takes courage to lead
pectations they feel they must in this area. It takes courage to
fulfill, police often consider vulnerability as equal conduct a cultural analysis of the organization to
to weakness. More specifically, officers seeking determine how it stacks up and to create strategies
feedback may perceive that asking someone else for a desirable outcome. The key to success lies
for advice relegates them to a subordinate role. in discussing ethics and equipping the men and
This perception, that it is weak to confer with oth- women of law enforcement with the tools needed
ers, carries danger. Two heads truly work better to be victorious when faced with a dilemma.
than one. In this regard, the temptation to behave Officers display courage when they must
unethically resembles a flowing river that searches make a decision in the midst of several unknowns.
the landscape for the path of least resistance, seek- Investigators make cases on tangible facts. Un-
ing out the weaker pockets of earth to make trav- knowns that hang in the air like so many gnats are
eling easier. Soliciting feedback and sharing the death to an investigation. But, an investigation can
burden enables others to bring attention to those be suspended; an ethical dilemma cannot be avoid-
weaker areas so they will not be overwhelmed ed. Just as running toward the gunfire requires
when the water approaches. bravery, it takes courage to make a decision when
August 2010 / 13
Forensic Update
August 2010 / 15
The Strategic Communication Plan
By CRIS HOOVER
© Thinkstockphotos.com
T
he most important and Unfortunately, many govern-
“Your system is perfectly designed often least understood ment and law enforcement
to give you the results that you get.” factor that moves an agencies fall into this trap and
organization from strategy adopt tactical, short-term com-
—W. Edwards Deming1 development to implementa- munication approaches when
tion is strategic communication. responding to their myriad
Research has shown that “en- constituencies. Not only does
terprises [often] fail at execu- this lack strategy but it can
tion because they go straight to undermine an organization’s
structural reorganization and long-term goals. When agen-
neglect the most powerful driv- cies fail to implement strategies
ers of effectiveness—decision as envisioned, executives often
rights and information flow.”2 look for someone or something
1616
/ FBI Law
/ FBI Enforcement
Law Bulletin
Enforcement Bulletin
to blame. However, as W. Ed- of initiatives or major organi- road map to get from strategy
wards Deming pointed out, they zational change efforts. At its development to implementation.
need look no further than the core, strategic communication
organizational system itself. must carry a particular unam- Rationale Statement
Strategic communication biguous message that not only First, a rationale statement
entails packaging a core mes- reflects an agency’s strategy but makes a concise case for the
sage that reflects an agency’s interacts with a specific vision. desired change. For example,
overall strategy, values, pur- Leaders need to take time to an organization wants to begin
pose, and mission to persuade ensure the core message reflects a structured leadership devel-
key stakeholders and enhance that vision and, if not, take steps opment program. The agency
positioning. Active, not reac- to remedy any organizational must articulate why the current
tive, it establishes organiza- dysfunctions. Many will find process is insufficient. Analyses
tional clarity and dissuades the concept of strategic com- (e.g., SWOT, gap) can expose
freelance endeavors that may munication new. However, not organizational deficiencies—
serve a few well, but detract properly framing and commu- for instance, that the present
from the organization’s over- nicating an organization’s core method lacks consistency when,
all direction and purpose. To message for targeted audiences ideally, it would provide in-
this end, one important tool, a will produce mediocre change
terconnected, progressive, and
solid strategic communication efforts and dilute overall agency
effectiveness. sequential development models
plan (SCP), should synchronize built on predictive pillars, such
organizational units and align THE COMPONENTS as operational assignments and
resources to deliver a common OF AN SCP formal education.4 The rationale
core message.3 An SCP generally has at statement should underscore
least four components, depend- this sense of here-but-not-yet
THE IMPORTANCE ing on how an agency groups tension and also summarize
OF AN SCP them. Together, they provide a the SCP goals and objectives
Of course, an agency must
have an underlying strategy
in the first place and, ideally,
incorporate strategic communi-
“
cations in the policy develop-
ment process, not address it as Messages
an afterthought. In a complex bombard people
world, leaders cannot simply
create a policy, push it down the
all day every day;
chain of command, and expect a strategically
it to automatically come to frui- delivered one will
tion. Messages bombard people resonate better
with employees.
”
all day every day; a strategically
delivered one will resonate bet-
ter with employees. SCPs can
serve this purpose and, from Special Agent Hoover is a supervisor in the DEA’s Sacramento, California, office.
an organizational perspective,
facilitate the implementation
August 2010 / 17
that will move the organization as a set of platitudes. Several envisioned future that looks at
toward strategy implementation. diagnostic tools (e.g., SWOT, least 10 years down the road.
It serves as a kind of introduc- gap, G2G) exist that can help
tion to the broader SCP. executives flesh out why an Core Values
organizational system produces Plenty of examples exist
Situational Analysis the results it does and, in most in both the private and public
The second section should instances, will lead them to the sectors of organizations that get
concentrate on determining formal vision statement.6 values right. For instance, any
“
where the organization is today U.S. Marine will cite honor,
and where it wants to go. The courage, and commitment as
SCP must identify issues, chal- prominent examples. These are
lenges, and barriers to com- drilled into recruits and empha-
munication along the way. To ...not properly framing sized throughout their careers
do this, the agency needs to and communicating and also comprise an integral
diagnose the existing culture, or an organization’s part of the Marines’ public rela-
how things are done now. core message...will tions efforts and organizational
For instance, an agency produce mediocre culture. Put another way, the
formally advocates develop- change efforts and Marines are clear about what
ing tomorrow’s leaders today. dilute overall agency they stand for. Even when fac-
However, rather than encourag- ing the most difficult circum-
”
ing leadership practices, such
effectiveness. stances, they take responsibility
as modeling the way, inspiring and act honorably.
a shared vision, challenging Also important, an agency’s
processes, enabling others to core values must be known
act, and encouraging the heart, Vision before they become meaningful.
the organization consistently An agency’s vision differs Core values are essential and
promotes into key leadership from its mission, key perfor- enduring tenets.7 If an organi-
jobs people with a rigid man- mance indicators, or goals. zation buries them in a policy
agement style.5 This kind of For example, eliminating gang document, changes them oc-
organizational doublespeak of- activity from a particular neigh- casionally, or never articulates
ten leaves employees frustrated, borhood, disrupting the flow of them to begin with, they are
stifled, and looking elsewhere drugs through a certain trans- not, by definition, core values.
for creative outlets. An agency portation corridor, or reducing A quick way to gauge whether
that consistently delivers mixed violent crime by 10 percent may an agency’s stated values truly
messages, intentionally or not, represent excellent strategic are genuine core values is to ask
may get 40 hours per week from goals, but not vision statements. employees at random to recite
employees, but not their passion While various academics and them and to assess whether the
or spirit. consultants have advocated current organizational culture
Facing the reality of how several vision-building models, reflects those values. When
things are done versus how they most organizational develop- leaders clearly define what prin-
are said to be done can prove ment practitioners agree that ciples truly serve as guides, they
instructive for executives to the foundation must include afford major decisions a sense
judge whether an agency’s vi- an organization’s core values, of consistency and certitude
sion serves as a guide or merely or guiding principles, and an because these can be filtered
August 2010 / 19
Each of these goals must have emerge. For law enforcement dialogue up and down the orga-
intermediate objectives and departments, the message for nizational hierarchy. Effective
specific timelines as bench- employees must address how media for citizen or neighbor-
marks. These goals would serve the change will increase ef- hood groups might include
a broader SCP designed to place fectiveness, esprit de corps, or town hall meetings and timely,
the agency on firm footing with other relevant cultural issues. helpful information routinely
a unified, coherent message for Concerning citizens, the mes- updated on the agency’s Web
key stakeholders. sage must tell them how their site. Media options are as var-
neighborhoods will be safer and ied as a person’s imagination,
Key Stakeholders, the their tax dollars better spent. and executives should look
Message, and Media For primary stakeholders, the beyond what has traditionally
For each strategic com- message must answer why the worked to effectively commu-
munication goal, organizations investment, financial or oth- nicate their change message.
must identify key stakeholders, erwise, will pay dividends for
specific messages for them, and them in the future. CONCLUSION
“
media for appropriate delivery. George Bernard Shaw said,
Navigating this step is key to “The single biggest problem in
success. If an agency does not communication is the illusion
effectively and persuasively that it has taken place.” Poor
deliver its messages, the whole An SCP generally or nonstrategic communication
exercise was for naught. has at least four for law enforcement organiza-
Stakeholders include any- components.... tions means lost opportunities,
one affected by the strategic Together, they reduced effectiveness, dimin-
communication goal, including provide a road map ished morale, and getting stuck
employees, citizens, lawmak- to get from strategy in the status quo. By developing
ers, or other groups who have a development to a strategic communication plan
vested interest in the outcome. implementation. for the organization’s change
”
Organizations should distin- efforts, agency leaders not only
guish key stakeholders between mitigate distractions but lead
primary (target)—the person or with focus and clarity toward
entity with the authority, power, an inspired shared vision of the
or influence to provide the or- Selecting the right me- future.
ganization with what it seeks— dium to either inform of or
Endnotes
and secondary (audience), those discuss the change depends 1
W. Edwards Deming was a statisti-
who may have influence with on the stakeholders. Most cian, university professor, and business
the target or others affected by people will more readily accept consultant famous for his 14 points for
the change. change when they have some management, credited for Japan’s dramatic
The messages must be tai- involvement in the process. increase in manufacturing efficiencies. For
lored for the respective target or For employees, this may mean additional information, see W. Edwards
Deming, Out of the Crisis (Cambridge,
audience, and an agency must interactive meetings with the MA: MIT Press, 1982).
answer the “what’s in it for chief executive, intranet blogs 2
Karla Martin, Gary Neilson, and Eliz-
me” questions that inevitably or threaded discussions, and abeth Powers, “The Secrets to Successful
Bulletin Honors
Lewiston Police
Memorial
August 2010 / 21
Crime Data
August 2010 / 23
Legal Digest
Confronting Science
Melendez-Diaz and the Confrontation
Clause of the Sixth Amendment
By Craig C. King, J.D.
© shutterstock.com
I
n an interesting turn of its Supreme Court, merely instruct-
“In this country if someone accuses you
of something…the phrase still persists, docket this year, the U.S. ing its members to make their
‘Look me in the eye and say that’” Supreme Court agreed ruling consistent with last year’s
Justice Antonin Scalia
to hear a case with an almost Melendez-Diaz v. Massachusetts.2
identical issue as a controver- The Melendez-Diaz decision
sial decision from its last term.1 addressed the practice of using
“The eyes are the windows to the soul” That second bite at the apple, evidence affidavits in lieu of in-
however, did not bear fruit, with person testimony by forensic ex-
Persian Proverb this year’s Court issuing a one- aminers, holding that the practice
sentence opinion and sending violates the Sixth Amendment to
it back down to the Virginia the U.S. Constitution. This article
“
sults of forensic analysis, which
showed that material seized by
the police and connected to the The decision
defendant was cocaine. The case in Melendez-Diaz
hinges on the issue of whether provides additional
those affidavits are testimonial, clarity on the use
rendering the affiants witnesses of live testimony over
subject to the defendant’s right the introduction
of confrontation under the Sixth of testimonial
Amendment.6 documents.
”
In 2001, after receiving in-
formation on a drug transaction,
Boston police officers arrested Assistant General Counsel King is a legal instructor at the FBI Academy.
three men, among them Luis
August 2010 / 25
law, as “prima facie evidence of his right to confront witness- akin to dispensing with jury trial
of the composition, quality, and es against him under the Sixth because a defendant is obviously
the net weight of the narcotic... Amendment, and the Supreme guilty.”19 Elaborating on the text
analyzed.”12 Melendez-Diaz Court agreed.17 The Court con- of the Confrontation Clause, 20
was found guilty. He appealed, cluded that the Confrontation the Court stated,
contending, among other things, Clause applies to witnesses It applies to “witnesses”
that admission of the certificates against the accused, mean- against the accused—in
violated his Sixth Amendment ing “those who bear testimo- other words, those who “bear
right to be confronted with the ny.” Relying on this, the Court testimony.”21 “Testimony,” in
witnesses against him. 13
stated, “The Framers would not turn, is typically “[a] solemn
Justice Antonin Scalia, writ- have allowed admission of tes- declaration or affirmation
ing for a majority of the Court, timonial statements of a witness made for the purpose of
“
found that this rather common establishing or proving some
practice in many courts was, in fact.”22 An accuser who
fact, a violation of the defen- makes a formal statement to
dant’s Sixth Amendment right government officers bears
to confront witnesses against Since the decision testimony in a sense that a
him. They decided that the af- in Melendez-Diaz, person who makes a casual
fidavits in question were testi- there have been a remark to an acquaintance
monial in nature; that is, they number of cases where does not. The constitutional
were paper substitutes for live defendants have invoked text, like the history underly-
witnesses—live witnesses who the case to raise the ing the common-law right of
can and should be cross-exam- question as to whether confrontation, thus reflects
ined.14 To justify this outcome, their Confrontation an especially acute concern
the Court relied on its previous with a specific type of out-
Clause rights had
ruling in Crawford v. Washing- of-court statement.23
”
ton, where it explored the length been violated.
and breadth of the confrontation The Ruling in Melendez-Diaz
clause.15 The opinion authored by Jus-
tice Scalia described the class of
Crawford v. Washington who did not appear at trial un- testimonial statements covered
In 2004, the U.S. Supreme less he was unavailable to tes- by the Confrontation Clause as
Court addressed the parameters tify, and the defendant had had follows:
of the Confrontation Clause in a prior opportunity for cross- Various formulations of this
Crawford v. Washington.16 In examination.”18 The Court de- core class of testimonial
this case, a recorded statement termined that a prior opportu- statements exist: ex parte in-
of a spouse was used against nity for cross-examination was court testimony or its func-
her husband in his prosecution. mandatory and dispositive of tional equivalent—that is,
The marital privilege prevent- whether or not testimonial state- material, such as affidavits,
ed the wife from testifying, so ments of an unavailable witness custodial examinations, prior
the prosecutor submitted her re- are admissible. “Dispensing testimony that the defen-
corded statement. Crawford ar- with confrontation because tes- dant was unable to cross-
gued that this was a violation timony is obviously reliable is examine, or similar pretrial
August 2010 / 27
Forstell to a station house to as articulated in Melendez- in the courtroom. It is the
administer a breathalyser test Diaz v. Massachusetts. Forstell defendant’s position that ex-
to him.31 believed the accuracy of Gov- hibits 1 through 4 should not
At Forstell’s trial, the ernment Exhibits 3 and 4 had be admitted in the absence of
government called Officer not been established because the technicians’ testimony. It
Gillespie to testify about the the government did not provide is clear, however, that Gov-
events of May 8, 2009, and testimony of the person who ernment Exhibits 1 through
moved for the admission of certified Government Exhibits 3 4 are nontestimonial and,
five exhibits. Government and 4 and did not allow him to thus, their admission does
Exhibit 1 is a certificate signed cross-examine that person.36 not run afoul of the Con-
“
by a technician with the Radar frontation Clause. Indeed,
Lab of Maryland certifying the Melendez-Diaz decision
that a Speed Measuring Radar explicitly notes that the
Device had been checked for Court “d[id] not hold, and it
accuracy and correctness of Certain is not the case, that anyone
operation. Government Exhibit circumstances… whose testimony may be
2 is a certificate signed by a require a person relevant in establishing the
technician of the Radar Lab of take the stand chain of custody, authenticity
Maryland certifying that tun- and be subject to of sample, or accuracy of the
ing forks bearing serial num- cross-examination…. testing device, must appear
”
bers 093050 and 093084 had in person as part of the
been tested and found to be prosecution’s case.37 Addi-
operating properly.32 Govern- tionally, documents prepared
ment Exhibit 3 is the Intoxi- in the regular course of
lyzer 5000EN Maintenance In Forstell, the Court first equipment maintenance may
Record for the Intoxilyzer unit examined Melendez-Diaz and well qualify as nontestimo-
bearing serial number 68- *580 then applied that ruling to its nial records.”38
010813. 33 Government Exhibit own facts. The Court further reasoned
4 is a certification notice for In the instant case, Of- that Forstell did not argue that
Intoxilyzer model 5000EN, ficer Gillespie testified that the certificates did anything
serial number 68-010813, and Sergeant Donald N. Upright, more than verify the accuracy
notes that the model has been the U.S. Park Police of the testing devices and equip-
tested and found to be suitable technician who signed the ment used by the U.S. Park
for use in analyzing breath certificates presented as Police. It concluded the informa-
alcohol.34 Government Exhibit Government Exhibits 3 and tion contained in Government
5 is the results report for two 4, was not present in the Exhibits 1 through 4 merely
breath tests administered to courtroom. Similarly, the confirmed that routine accuracy
Scott P. Forstell on May 8, technician who signed the and maintenance tests were
2009, by Officer Gillespie.35 certifications of accuracy performed on the laser device,
Forstell claimed the admis- for the laser and tuning fork, tuning fork, and Intoxilyzer
sion of Government Exhibits presented as Government 5000EN unit. Certificates re-
1 through 5 violated his rights Exhibits 1 and 2, respec- garding such routine information
under the Confrontation Clause tively, also was not present fit squarely into the category of
August 2010 / 29
with Murphy still inside, parked been created for the admin- judge by his demeanor upon
in a driveway. After running a istration of an entity’s af- the stand and the manner in
check on the car’s license plate, fairs and not for the purpose which he gives his testimony
Officer Woodcock confirmed of establishing or proving whether he is worthy of be-
that Murphy’s license was some fact at trial—they are lief. Cross-examination has
suspended. He made contact not testimonial.48 far less utility with respect
with Murphy and obtained his The court concluded that to the information contained
license, registration, and insur- neither the certificate nor the in the certificate at issue
ance information.43 records to which it refers are here. The Bureau’s collec-
Murphy was charged with primarily maintained and em- tion and maintenance of
and pleaded not guilty to oper- ployed for purposes of criminal motor vehicle license-related
ating while license suspended prosecution. Identical certifi- information are largely auto-
or revoked44 and unlawful use cates are routinely prepared for mated, and the data collected
of a license.45 Before trial, nonprosecutorial purposes, such are not subject to any serious
Murphy moved to exclude from as administrative motor vehicle interpretation, judgment, or
evidence a certificate issued by proceedings and insurance- analysis. Our constitutional
the secretary of state, asserting related inquiries. analysis should not ignore
“
that the admission of the cer- the context in which these
tificate would violate his Sixth records are produced. Be-
Amendment right to confront cause neutral, bureaucratic
witnesses.46 information from routinely
The Supreme Judicial Court Determining maintained public records is
of Maine ruled “Melendez-Diaz when a document is not obtained by use of spe-
might be interpreted as extend- testimonial is a new cialized methodology, there
ing the definition of testimony issue that lower courts is little, if any, practical
beyond sworn certificates ad- still are exploring on a benefit to applying the cru-
dressing scientific analysis pre- case-by-case basis. cible of cross-examination
”
pared for purposes of a criminal against those who maintain
prosecution, to include sworn the information.49
certificates that authenticate Defendants have asserted
and summarize routine govern- Melendez-Diaz violations
mental records. The opinion The nature of the Confronta- regarding the admission of
contains conflicting signals on tion Clause itself also guided varied types of records main-
this point. The Court’s majority the Murphy court. tained by police departments.
recognized that, by their nature, Cross-examination guar- In State v. Fitzwater, an officer
business and public records are antees that the accused has in Hawaii issued a speeding
not testimonial.”47 an opportunity, not only of ticket to a motorcyclist after
Business and public records testing the recollection and “pacing” the motorcycle doing
are generally admissible sifting the conscience of the 70 miles per hour in a 30 miles-
absent confrontation not witness, but of compelling per-hour zone.50 The defendant
because they qualify under him to stand face to face claimed his right to confronta-
an exception to the hearsay with the jury in order that tion had been violated pursuant
rules, but because—having they may look at him, and to Melendez-Diaz because the
August 2010 / 31
American Dictionary of the English a transmitter frequency of 35.600 Ghz and Police, indicates that on April 14, 2009,
Language (1828)). a maximum aperture power density of 0.15 maintenance and instrument checks were
28
Davis v. Washington, 547 U.S. 813, mw om. Antenna 1, bearing serial number performed on the Intoxilyzer unit.
830, 126 S. Ct. 2266, 165 L.Ed.2d 224 G2-02981, was found to have a transmitter 35
United States v. Forstell, 656
(2006) (emphasis deleted). frequency of 35.600 Ghz and a maximum F.Supp.2d 578, E.D.Va. (2009).
29
Melendez-Diaz v. Massachusetts, 129 aperture power density of 0.15 mw om. In 36
Id.
S. Ct. 2527 U.S.Mass., (2009). addition to noting that the laser being certi- 37
129 S. Ct. at n. 1. See also Lar-
30
Melendez-Diaz has even found its fied was model type GEN II, the certificate kin v. Yates, 2009 WL 2049991, n. 2
way into the employment context. In lists two serial numbers for associated (C.D.Cal.2009) (noting that Melendez-
Sutera v. Transportation Sec. Admin., units. These serial numbers, 093050 and Diaz “explicitly rejected the suggestion
Sutera was employed as a lead trans- 093084 match the serial numbers of the that the Confrontation Clause required
portation security officer by defendant tuning forks that are the subject of the that every person whose testimony might
Transportation Security Administration certificate marked Government Exhibit 2. be relevant to the authenticity of sample
(TSA). TSA policy requires employees Finally, the certificate marked as Govern- or accuracy of a testing device appear in
to report to work free from any effects of ment Exhibit 1 bears an expiration date of person as part of the prosecution’s case”).
alcohol or drugs; it mandates removal for April 16, 2010. 38
Melendez-Diaz, 129 S. Ct. at n. 1.
“
offenses that involve the use of drugs or 39
United States v. Forstell, 656
alcohol. The policy requires random drug F.Supp.2d 578, E.D.Va. (2009).
and alcohol testing of designated classes 40
Id.
of employees, including transportation 41
Id.
security officers, such as Sutera, because State v. Murphy, 991 A.2d 35, 2010
The Confrontation
42
”
was afforded the opportunity to confront of the preparer. 49
Id.
the person or persons who tested his urine. 50
State v. Fitzwater, 122 Hawaii 354,
The U.S. District Court for the Eastern 227 P.3d 520 Hawaii (2010).
District of New York was quick to point 51
Id.
out that confrontation was a right reserved 52
People v. Johnson, 394 Ill.App.3d
for “criminal” prosecutions and not infor- 33
Specifically, the certificate states 1027, 333 Ill.Dec., 774 Ill.App. 1 Dist.,
mal administrative hearings. that the tuning fork bearing serial number (2009).
31
United States v. Forstell, 656 093050 had been tested and found to oscil- 53
People v. Gomez, 181 Cal.App.4th
F.Supp.2d 578, E.D.Va. (2009). late at 3.74=5 Hz at 70 degrees Fahrenheit 1028, 104 Cal.Rptr.3d 683, Cal.App. 2
32
Specifically, the certificate states that and will cause a Doppler traffic radar Dist., (2010).
the transmitter frequency of the Speed transmitting at 35.600 GHz to display
Measuring Radar Device bearing the se- 35.2 MPH Km/h and that the tuning fork
rial number G2-2651 had been tested and bearing serial number 093084 has been Law enforcement officers of other than
found to be within the prescribed limits. tested and found to oscillate at 5.37 =5 Hz federal jurisdiction who are interested
According to the certificate, the Speed at 70 degrees Fahrenheit and will cause a in this article should consult their legal
Measuring Radar Device is certified ac- Doppler traffic radar transmitting at 35.600 advisors. Some police procedures ruled
curately within +/-1 mph (+/-2 kph) in GHz to display 50.6 MPH KM/h. permissible under federal constitutional
stationary mode and/or +/-1 mph (+/-2 34
The certificate, which is signed by law are of questionable legality under
kph) in moving mode. Antenna 1, bearing Sergeant Donald N. Upright, a technician state law or are not permitted at all.
serial number G2-05114 was found to have in the Traffic Safety Unit of the U.S. Park
Early one morning, Lieutenant Dave Doebel of the Storm Lake, Iowa,
Police Department responded to a one-car accident at an intersection. Upon
his arrival, he encountered a vehicle that had left the roadway and struck a
power pole, causing the car to catch on fire. Lieutenant Doebel saw that the
unconscious driver was trapped inside. Quickly, Lieutenant Doebel used a
small fire extinguisher to fight the flames, freed the victim’s trapped legs,
and pulled him out of the vehicle to a safe spot. Moments later, the vehicle
exploded. Lieutenant Doebel then extinguished the fire burning on the vic-
tim’s pants. The critically injured driver survived.
Lieutenant Doebel
Nominations for the Bulletin Notes should be based on either the rescue of
one or more citizens or arrest(s) made at unusual risk to an officer’s safety.
Submissions should include a short write-up (maximum of 250 words), a
separate photograph of each nominee, and a letter from the department’s
ranking officer endorsing the nomination. Submissions should be mailed
to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Quantico, VA
22135 or e-mailed to leb@fbiacademy.edu.
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Patch Call
The University of Delaware, in the city of The city of Bradenton, Florida, incorporated
Newark, was established in 1743. The patch of its in 1903, is located on the south side of Tampa Bay
police department depicts Memorial Hall, erected and is bordered by the Gulf of Mexico and the
by citizens as the state’s World War I memorial and Manatee River. The patch of its police department
listed on the National Register of Historic Sites. It features the United States, Florida, and Bradenton
served as the university library from 1924 to 1963 flags, which symbolize the agency’s service to its
and now houses the Department of English. country, state, and city.