I was surprised when the grand jury that indicted former University of Cincinnati police officer Ray Tensing for the murder of Sam DuBose decided not to indict officers Phillip Kidd and David Lingenschmidt for obstructing justice by providing false information about the shooting in their police reports. I was surprised because their written reports corroborated Tensing’s claim that DuBose dragged him down the street in an attempt to flee the scene. Tensing told investigators that he shot DuBose while he was being dragged down the street because he feared for his life. Unfortunately for Tensing and the two officers who corroborated his story, Tensing’s body cam established that he shot DuBose in the head while standing next to DuBose’s parked vehicle.
After considering the matter, I realized that the grand jury might have declined to indict the two officers due to a lack of evidence that they knew their statements contained false information when they made them. This is an important distinction that merits an explanation.
To prove that a person committed the crimes of providing a false statement and obstruction of justice, the prosecution must prove each of the following elements beyond a reasonable doubt.
(1) the person made a statement about a possible crime to a law enforcement officer investigating that crime;
(2) the person knew their statement was false when they made it;
(3) the false statement concerned a material matter; and
(4) the person intended to prevent, delay or obstruct the investigation when they made the false statement.
The first three elements must be established to prove the crime of making a false statement. All four elements must be established to prove obstruction of justice.
To indict someone for committing a crime, the grand jury must find, on the basis of the evidence presented to it by the prosecution, that there is probable cause (i.e., reasonable grounds) to believe the person committed that crime.
To prove that a person committed a crime, a trial jury must decide unanimously that the prosecution proved each element of the crime beyond a reasonable doubt.
The stumbling block for the grand jury in the Tensing case may have been that the officers did not witness the shooting and merely repeated what Tensing told them.
An additional consideration may have caused the prosecution to back off on charging the officers. Assuming the officers have clarified their statements after they made them by explaining that they merely repeated what Tensing told them, the prosecution may have decided to call them as witnesses against Tensing.
Regardless how this plays out, no witness, especially a cop, should provide a statement that they witnessed an event when they are basing their statement on something a fellow officer told them. That’s grossly improper.