Deposing a Police Officer: The Topics the Record Supports

A police practices opinion is built on the complete record, and the officers' depositions are part of that record. The officer is the one witness who can give the officer's own account of what was taught, what was known, why each decision was made and how the report came to read the way it does, and each part of that account can be measured against a document.

The topics below describe what each covers and which records sit behind it. How to examine the witness is counsel's craft, and legal conclusions remain counsel's; the expert addresses police practices.

Policy testimony is only as good as the version it concerns. The general order or policy that governed on the date of the incident, the officer's signed acknowledgment of it, and any training bulletin that announced a revision are the documents the officer's understanding is set against.

How a manual is requested and read, including the difference between mandatory and discretionary language, is covered under reading a police policy manual. Where the officer's account of a policy differs from its text, the difference is measured against what the training record shows the agency communicated, and the relationship between written policy, training and practice is set out in policy, practice and training.

The practices analysis measures decisions one at a time: the approach, the positioning, commands and warnings, each use of force, and each decision to stop or continue. The officer's testimony records the reason given for each decision, in the officer's own words, and each decision and its stated reason are measured against the policy and the training.

Where recordings exist, the sequence can be set against them moment by moment; how the footage is compared with the rest of the file is covered in body-worn camera policy. How force options are organized in training, and the vocabulary an officer is likely to use for them, is set out in force options and decision models.

The minutes after force are a topic of their own. When the officer called for medical aid and what the officer did until it arrived, how the scene was held, whom the officer notified, and whether the officer answered a supervisor's immediate questions at the scene are each governed by policy, and the record shows most of them independently of the officer's recollection. What policy required about aid in that interval is covered at failure to intervene and render aid.

The involved officer is often not the only police witness with knowledge of the practices at issue. The first-line supervisor who responded can say what the supervisory review covered and what it did not; the training officer or academy staff can say what the curriculum taught; and the agency's witnesses on policy and training can say what the agency required and how it enforced it.

Each review has its own record: the supervisor's review, set out in supervisor use-of-force reviews, the administrative review board, covered in force review boards, and any internal affairs investigation, whose standards are described in internal affairs review standards.

Where officer depositions come before the expert's report, the testimony becomes part of the record the opinions rest on. A written report requires sixty days of advance notice, so counsel planning officer depositions close to an expert disclosure deadline should build that notice into the schedule, as explained in report timelines and the sixty-day rule.

A consulting-only retention can come earlier. Delivered to counsel and not served, a consulting review of the record can inform the discovery plan, including which records should exist before the depositions and which practices questions the record leaves open, as described in consulting and testifying experts. The published fee schedule is at For Counsel.