Lawyers and Word Games - Are the police playing the game right?

 

Fictional Attorney: Officer, in your report you described some behavior of Mr. Defendant as “pre-attack indicators” is that correct?

Fictional Officer: Yes

FA: Can you help me understand the phrase “pre-attack?”

FO: Yes *(note the literal and simple answer – good technique!)

FA: Would you please do so?

FO: It means before an attack.

FA: Thank you. Is it true that you acted on those indicators?

FO: That’s correct.

FA: So you assumed you were going to be attacked even though you hadn’t yet been attacked.

FO: I believed there was a high probability.

FA: So it was speculation on your part that led you to engage in the use of force against my client

FO: *flustered*

            Now I don’t know if this interrogation has ever happened on the stand, but I could see a jury member being influenced by the specter of pre-emptive aggression on the officer’s part. My question then, is whether our phrase “pre-attack indicators” is in our best interests, especially since Dr. Travis Yates’ important work in the field of early threat recognition gains more traction. Yates is applying research to what officers often, through experience or intuition, already know (or should know) about sensing when an attack or escape is about to happen (He also uses various other phrases than PAI (Pre-attack Indicators – we have to have an acronym, don’t we?) in his curriculum. We all know that explaining our actions when we must coerce compliance cannot rely on “I just knew it” “It’s been my experience” “I just had a feeling” and “It was suspicion”. We are now gaining leverage in articulating this to juries, prosecutors, and the public.

An article I wrote for Police1 back in 2013 (Before Yates’ seminal work) addressed the issue of language describing what we all call can be found in the archives here: https://www.police1.com/officer-safety/articles/the-attack-cascade-engaging-an-offender-before-its-too-late-nQcMidvyGh7xgRWa/

I offered an alternate phrase which, on reflection, I no longer like but the gist of it is that we should consider those PAIs as PART OF THE ATTACK OR ESCAPE and not “pre” anything. The old Use of Force Continuum (see my archived article on that: https://www.police1.com/police-training/articles/contextual-compliance-tool-kit-Wvy6q2HzKZ44VmXg/ concentrated on an officers response to a suspect’s behavior, but was never clear to me what those specific  behaviors, short of bringing a weapon to bear, were going to fly in front of a jury or internal review. With Dr. Yates research we can give better voice to those behaviors, but I still maintain we should retire the PAI verbiage.

I have similar concerns about the term “Defensive Tactics” and “De-Escalation”.

FA: Officer you are training in de-escalation is that correct?

FO: Yes

FA: Why did you shoot my client instead of de-escalating the situation?

FO: I did de-escalate the situation by shooting his @ss. (not a recommended response on the witness stand, but the principle is valid.

Again – we dig into the archives on that subject with my article you can read here: https://calibrepress.com/2023/09/reframing-de-escalation/

From which I quote: “Although not considered de-escalation in common parlance the use of force, including deadly force is, in fact, de-escalation if it stops the aggressiveness of a threat. It is at the top of the de-escalation continuum, reminiscent of the classic use of force continuum. To say that the use of force is a failure of de-escalation is not accurate if such use stops the escalating or continuing behavior of a threat.”

FA: Officer you attended a section of the police academy called “Defensive Tactics”, did you not?

FO: (Avoiding a yes or no on the tricky grammatical pretzel) I did

FA: And you continued training throughout your career with Defensive Tactics courses?

FO: Correct

FA: When you tackled my client was he attacking you?

FO: (Waits for objection………none is forthcoming) At the moment I made physical contact he was not actively attacking me.

FA: Answer yes or no please.

FO: No.

FA: Then you were not using your training in Defensive Tactics, since you were the aggressor?

Let me think on some new labels for stuff we know and do. Any suggestions?

Truthifixion

Jesus said "I am the Way, the Truth, and the Life" (caps mine). At the considerable risk of dragging Jesus into a secular debate - a tactic I despise - He is the ultimate authority on Truth (caps mine), so a look at his life is instructive. He was murdered for speaking Truth and being the very embodiment of Truth. Why such a violent reaction to the reality of the existence of Truth - the very question the Roman governor Pontius Pilate asked during Jesus' trial? I believe it was that Truth threatens. The Romans were threatened by the perceived disruption of the peace of Roman power. The Jewish establishment was threatened by a loss of influence and a potential shift in their ideology and power. The Roman establishment reacting to that threat was a hypocritical misuse of the very order their law had brought about, with a legal proceeding that was decidedly illegal in its application, being a perverted format that not only allowed them to claim that Jesus had due process, but whose end had to be ensured by conspiracy (bribes to the guards at the tomb).

The rational arguments of the some of the ruling Jews (who ruled only the Jews and the Temple) were ignored by the majority, who leveraged the corruption of the Roman legal system by bribing Judas, and perverting Jesus' statements of spiritual Truth to make Jesus seem like an anti-government rebel.

The crowd demanding Jesus' crucifixion in the light of Pontius Pilate's offer of clemency may have included some who, just days earlier, had proclaimed Jesus to be worthy of praise and honor. What was their motivation other than to affiliate with the Jewish leaders' account and label him in league with the devil and stay in the "in" group?

Using Jesus as a discussion starting point is not a theological treatise here, just an illustration of several challenges we all have in defining, discerning, and discovering the truth of a matter. (And to bolster my use of the word truthifixion that I made up - truth crucified and juxtoposed with a word similar to "fiction". I suggest inserting the little copyright symbol if you use my word. It deserves to be repeated and I want credit.) But I digress. The main point of my lecture is that as much as we seek the truth of a matter, we must use equal energy and brain cells to disbelieve. The probability that you're being deceived (as opposed to outright being lied to, although that, too) is much higher than the probability that what you think is true is actually the truth, the whole truth, and nothing but the truth. I hope that all of my police academy students remember Shults' First Law of Police Work: Don't trust anybody. I stand behind that statement.

Scientific findings back me up on this. I'm not going to cite my sources; that's between you and AI to discover, but surveys of beliefs correlated to news sources shows that opinions will differ depending on whether one consumes mostly broadcast, internet, or published information. I think we all know, and ignore, that different sources choose what "news" to report, what vocabulary to use, and what to editorialize. It's not so much that the medium of our messages are lying to us, but that we are lying to ourselves to believe what we ingest. 

The other science here is what happens in our brain when we hear or see information (I'm avoiding using the word "facts", which are often in dispute). We are wired such that negative information attracts our attention much more profoundly than neutral or positive information. The sky may be beautifully blue with delightful fluffy clouds, but our focus is on the ground to be sure that the stick on the sidewalk is not a venomous snake. News producers, bloggers, influencers, TikTokkers, and podcasters all want your attention - even this rant, which is being sent into the ether with low expectations - we all want clicks, affirmations, debate, rage, or whatever else can raise your blood pressure and activate your limbic system. We are all being played. No one monetizes media by telling stories of rescued puppies and monkeys reading to first graders and harpists volunteering at old folks' homes. 

Clearly, there are things going on in the world, near and far, that are disturbing and that demand our attention and perhaps some action in response. It is our response that must be carefully calculated beyond the mere venting of our frustrations. A review of the Serenity Prayer might be in order.

I am tempted to give a listicle of FIVE WAYS TO KNOW WHEN YOU'RE BEING MANIPULATED, NUMBER FOUR WILL BLOW YOU AWAY! If I did, I'd say 1) assume bias from any source, 2) insist on context for interpreting a narrative or video, 3) watch for hyperbole in vocabulary choice - connotation can be subtle, 4) recognize rage bait by your visceral reaction and recalibrate your response, 5) notice when persons are described by labels rather than objectively observable behavior. Let's not be naive about the motives of those who want to be the loudest voices. I'm whispering now.

When I was in charge of securing our campus housing, we tried to tell people to be careful when they swiped their key cards not to let some unauthorized person "tailgate" and come in without permission. We need to be careful about ideas tailgating our thoughts. We need filters and boundaries. Just because we agree with someone's claim or an idea in a meme doesn't give it permission to enter our brain's logic process (remember logic?) I took a class in college called Rhetoric, the original meaning of which is "the art of persuasion". We have now twisted that fine word to mean useless, biased speech. I'd love to see real rhetoric again. I have a dream.

Now, what do we do with the knowledge that we are what we eat and we eat a lot of junk (metaphor)? I dare not prescribe such a thing, since I doubt there is anything like a balanced meal (continuing to torture the metaphor) in the collection of information. I suppose that many readers (if there are many) have already ascribed my writing to be partisan. If you read this and day "yeah, but..." there's the evidence. I'd just say be careful what you feed your brain, balance it with healthy human connection, laughter, rest, and coffee.