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Derek Chauvin Trial Continues. Aired 3-3:30p ET

Aired April 12, 2021 - 15:00   ET



SETH STOUGHTON, POLICE USE OF FORCE EXPERT: I would have to look at my records to see you what actual compensation has been, in the -- in the area of maybe $24,000 or $25,000 received.

STEVE SCHLEICHER, MINNESOTA PROSECUTOR: How many hours do you -- would you estimate that you have put into preparing for their matter?

STOUGHTON: Including both compensated and uncompensated hours, I'm probably in the -- this might be overestimating slightly, but in the 130-to-140-hour range.

SCHLEICHER: Now, in your experience as an expert witness, have you always reached a conclusion that's favorable to the party who hires you?


SCHLEICHER: Why is that?

STOUGHTON: Because the facts and my review of the facts did not favor them. So, my credibility is very important to me. And if I am retained and develop an opinion that does not favor the attorney who retains me, that's still my opinion.

SCHLEICHER: Now, did you actively seek to participate in this matter?


SCHLEICHER: Who contacted you?

STOUGHTON: The state of Minnesota.

SCHLEICHER: Based upon -- in your retention of the state of Minnesota, have you developed opinions regarding the use of force against George Floyd on the date of his death?

STOUGHTON: Yes, and related activity, yes.

SCHLEICHER: I'd like you to please explain to the jury first the process by which you go about reaching conclusions, analyzing cases such as this.


So, the first step is to get and go through the material. In this case, I believe I got an external hard drive that had tens of thousands of pages of documentation, I believe close to or over 40,000 pages of documentation, a large number of videos, including a number of body-worn camera videos, including the body-worn camera videos of the officers who were involved in this particular incident.

SCHLEICHER: Those would include the body-worn camera videos of the defendant; is that right?


SCHLEICHER: And Officer Thao, Officer Kueng, and Officer Lane?


SCHLEICHER: Did you also review some bystander videos? Darnella Frazier, for example?

STOUGHTON: Yes, her video, Ms. Hansen's video, a video taken from across the street by a bystander, I think, in a Speedway gas station, a traffic cam or a pole camera mounted somewhere up above.

Yes, a number of videos.

SCHLEICHER: As an individual who frequently reviews uses of force, are you commonly called upon to review body-worn camera footage and other footage such as surveillance or bystander video?


In fact, one of my academic publications is specifically about body- worn cameras, and I have done a great deal of both research and teaching on using video footage, interpreting video footage, especially in use-of-force cases.

SCHLEICHER: If you could please describe to the jury just the -- I guess the depth of body-worn camera footage you were able to view in this case, as compared to one in which you might have just a single recording.

STOUGHTON: Yes, sure.

It's pretty common for use of force to only involve an officer or two, to involve very limited video, maybe only the video from that particular officer. And body-worn camera or any video footage is just one more piece of evidence that I, in conducting a review, have to examine and weigh and measure against other pieces of evidence.

In this case, unlike the vast majority of cases that I have been involved in, there were a whole bunch of videos, so videos from different perspectives of the same event, that can allow a much more robust understanding of what was going on. To put it very simply, one camera only captures what's available on that camera, so I don't see what's happening off-camera. But when I have multiple videos from multiple perspectives, multiple angles, it allows me to get a much better sense of what's happening when and where.

SCHLEICHER: So, using some examples, you examined the Frazier video; is that right?


SCHLEICHER: Yes. And you were also able to view the Alisha Finari (ph), the Speedway employee's video as well, correct?

STOUGHTON: Yes, that's correct.

SCHLEICHER: And then, at the same time, view the milestone video, the larger overview?

STOUGHTON: Yes, that's the pole camera video, I think, on top or near the top of the Speedway.

SCHLEICHER: And can you describe to the jury the different perspectives that you were able to see using each of those videos and how the viewing of one aided the understanding of the other?



So, very simply, the -- Ms. Frazier's video was taken from the sidewalk near the squad, near the police vehicle.

And you really don't see Officers Lane or Kueng on that video. On the other hand, from the perspective across the street, at the Speedway or the pole camera, you do see those officers. It's simply because the camera isn't obstructed by the police vehicle.

SCHLEICHER: Now, did you, upon your review of all the videos, the documents that you have discussed, complete a report memorializing your findings?

STOUGHTON: Yes, I did, my findings and opinions.

SCHLEICHER: About how long was that report?

STOUGHTON: The report total, I believe, was close to 300 pages.

That includes a rather lengthy appendix that lists out all the materials that I reviewed. The body of the report itself, which has my summary of the relevant facts and my opinions, was, I think, about 112 pages, 110 pages, if we take out the table of contents maybe, over 100 pages.

SCHLEICHER: All right. And you -- did you rely on your training and your experience and

academic experience to review the evidence in this case and reach your conclusions?


SCHLEICHER: And have you reached your opinions to a degree of reasonable professional certainty, based on generally accepted standards in your field?

STOUGHTON: Yes, I have.

SCHLEICHER: Now, before sharing those opinions, sir, I would like you to explain what factors you review when you're evaluating uses of force.


So, first is sort of the threshold point. I have to know what I'm actually looking at, right? I have to know which uses of force I'm reviewing. For example, if an officer is involved in a shooting, the saying is the officer has to account for every bullet that they put downrange. That is, they might count as separate uses of force.

After I identify what the uses of force are, then I apply essentially a four-step analytical framework. First, I identify what the relevant facts and circumstances are, as viewed through the lens of a reasonable officer on the scene. Then I assess the threat, if any, presented by the individual's actions.

Then I assess the foreseeable effects of the officer's use of force, and then the fourth step is sort of putting all of that together and assessing whether, in light of the facts and circumstances, the foreseeable effects of the officer's use of force were justified and reasonable, because they were proportional and appropriate, in light of the threat presented by the individual's actions.

SCHLEICHER: By what standard are you making this assessment?

STOUGHTON: So, the ultimate analytical question, that step four, is applying generally accepted police practices, what we might call a national or professional standard for the way we expect and the way policing expects officers to engage with individuals and use force.

SCHLEICHER: And what are these national standards based on?

STOUGHTON: So, a combination of things.

They're certainly influenced by constitutional law, for example, by history and research in policing. Since the 1970s or so, there's been tactical research within policing that's helped inform what we would now consider generally accepted practices, a great deal of evidence and experience as well.

SCHLEICHER: Are there constitutional standards as well?


Constitutional law, especially the Fourth Amendment standard, is one of the factors that defines or certainly influences generally accepted practices.

SCHLEICHER: Is another influence a particular department's policies and training?

STOUGHTON: An agency's policies or training might, and, indeed, I would hope they are reflective of the generally accepted practices, but we can't define industry-wide generally accepted practices by looking at a particular agency's policies or training.

SCHLEICHER: So, the standard you're reviewing is that of reasonableness?

STOUGHTON: That's correct.

Now, we might look at a large number of agencies and say, OK, if hundreds or many, many police agencies are doing this thing, then maybe that's a best practice or a generally accepted practice.

But you can't just look at one agency and say, it's reasonable because this one agency said it was reasonable.

SCHLEICHER: All right.

When discussing the constitutional standards, you're familiar with the standards set forth in Graham v. Connor?

STOUGHTON: I am, yes.


SCHLEICHER: And I have a demonstrative -- I believe it's exhibit 954

And if I can publish that, the Graham factors.

PETER CAHILL, HENNEPIN COUNTY, MINNESOTA, JUDGE: OK, 954 is received for demonstrative purposes only.


And can you just please tell the jury what it is you see here?

STOUGHTON: So, this is a summary of what are referred to as the Graham factors.

These are specific factors identified by the Supreme Court in the case Graham v.Connor that we use really in that second phase of analysis. The second step, remember, is assessing the threat presented by the individual's actions.

And to understand Graham v. Connor, you kind of have to understand what we mean by threat. First, when we're talking about the threat that an individual may present, it's not some abstract notion. It's not general threat or conceptual. It's specific threat of something, right?

Someone who's running away may produce a threat of escape or threat of assaulting an officer or the like. And, further, we can define threat, we know that threat exists when the individual has the physical ability and the opportunity and the apparent intention to cause whatever specific harm we're analyzing.

So, for example, imagine someone who's just standing there with nothing in their hands. They don't have the physical ability to hit an officer with a tire iron, so there's no threat that an officer is going to be hit with a tire iron. There's just no physical ability there.

On the other hand, man somebody who has a tire iron, but who's 50 feet way. They have the physical ability, because they have a tire iron, but they don't have any opportunity. They're too far away in that moment to actually present a threat.

And then we can imagine someone with a tire iron and they're two or three feet away from an officer, but they're changing a tire at the time. They have the ability and the opportunity, but there's nothing about that interaction, as the officer is talking with them, that suggests they have the apparent intention to cause that particular threat.

So, when you put all of those three things together, ability, opportunity and intention, that's how we identify threat. The Graham- Connor--

SCHLEICHER: I'd like you to contrast that with risk.

STOUGHTON: Oh, sure.

So, threat, as I have defined it, can be contrasted with risk. Risk, you can think of as a potential threat. That person with the tire iron who's 50 feet way, they don't present a threat. If they get close enough, they might have the opportunity now or the apparent intention to strike an officer with a tire iron, but they don't yet.

So, risk is something officers can use tactics and communication to help address. The goal is to prevent risk from becoming threat, and really to prevent threat from becoming whatever that relevant harm is.

But, while threat can justify use of force, risk can't. An officer can't use force on someone who's holding a tire iron and two or three feet away while they're just changing a tire, because there's no apparent intention, there's no threat there.

The officer can do something like back away, build distance, so they aren't two or three feet away, or interpose the vehicle between themselves and the individual they're interacting with, or use communications. They could ask the individual to put the tire iron down, but they can't use force there, because there's no threat.

SCHLEICHER: I'm sorry to interrupt you.

STOUGHTON: This is what you get for having a law professor testify.

SCHLEICHER: They're trying to take notes. And the court reporter is trying to take things down. So, I'm going to slow you down a little bit, if I may, Professor.

STOUGHTON: Sure. Sorry.

SCHLEICHER: Oh, no problem.

Then, in assessing other potential risk factors, would you agree that the relative size of a person is a risk factor?

STOUGHTON: It's certainly a relevant consideration, yes.

SCHLEICHER: But is it, in and of itself, a threat?

STOUGHTON: No, certainly not.

Someone who's physically large may have a greater physical ability to inflict harm if they assault an officer, but their size can't establish opportunity and can't establish intention.

SCHLEICHER: And how about recent drug use? Is that a threat or a risk?

STOUGHTON: Again, it's a relevant consideration, but it does not, in and of itself, establish threat. It doesn't establish physical ability, by itself, to do anything. It doesn't establish opportunity to do anything, nor does it establish apparent intention.

So, it's certainly a relevant consideration in the totality of the circumstances, but officers can't use force on someone just because they're on drugs.


SCHLEICHER: Now, I'd like to talk about -- or I'd like you to discuss the severity of crime at issue. How is that relevant to the Graham analysis?


So, as we're thinking about the concept of threat, the Graham factors really help us identify when there is a threat and how much of a threat. Severity of the crime can be best understood as a proxy for dangerousness.

All other things being equal, an armed bank robber may be suspected to be more dangerous than someone who is cashing a worthless check, for example.

So, severity of the crime is really -- really a proxy for evaluating how much risk someone might present. How dangerous are they?

SCHLEICHER: And if we could go to the third factor, then, the active resistance, whether they are actively resisting arrest or attempting to evade arrest by flight, how is that relevant to your analysis?

STOUGHTON: So, again, this is all part of that threat analysis, that second step in my framework.

And this is getting at the behavior of the subject. So, for example, someone who's attempting to evade arrest by flight is threatening the government's interest in apprehending that person. It's about identifying a threat of escape.

Active resistance can be similar. It's a threat of someone frustrating the government's interest in taking them into cover, for example.

SCHLEICHER: We talk -- are there different types of resistance?

STOUGHTON: Yes, absolutely.

SCHLEICHER: What are the types, generally accepted definitions in policing, as the different types of resistance?


So, the concepts are generally accepted, although some of the vocabulary differs from place to place. We might first identify someone who is compliant, who's doing what the officers want, no resistance at all. Right? Then we might have someone who is passive or noncompliant. They're not doing what the officers want, but they're not doing anything against what the officers are telling them to do either.

The classic example of passive resistance is someone who's just laying on the ground, refusing to get up when told. Then there's active resistance, which is typically defined as someone who is engaging their muscles in some way. Someone who is tensing up or running away is engaged in active resistance.

Next level up, if we can say that, is active aggression. And this is where someone is not just engaging their muscles. They're engaging their muscles in a way that creates a threat of harm to the officers or themselves.

And, finally, the ultimate expression of active aggression is when a subject presents an imminent threat, again, as that term is defined, as death or serious bodily injury to officers or others.

SCHLEICHER: If we could take that down, please.

Now, I think we have gone through in a little more detail the first two steps of your four-step process, talk about identifying facts, what would have been apparent to a reasonable officer. You discussed identifying threats.

You also testified that you need to identify the foreseeable effects of the officer's actions. Can you explain what you mean by that?

STOUGHTON: Absolutely.

What I mean, by the foreseeable effects of the officer's actions is essentially, what is this use of force likely to do?

Just as there is a spectrum of resistance, from no resistance to a whole lot of resistance, right, threatening the life of an officer, there is also a spectrum of effects that we might expect from an officer's use of force.

So, for example, some uses of force are relatively minor and unlikely to cause any more than temporary discomfort. Other uses of force are substantially likely to cause death or serious bodily injury, what we would refer to as deadly force.

As you're analyzing use of force, it's very important to focus on the foreseeable effects of what the use of force involved, and not the actual effects, not what actually happened.

And I can give you an easy example. If an officer shoots at someone, that's a use of deadly force, because it's foreseeable that discharging a firearm at someone is going to cause death or serious bodily injury. And that's true even if the officer misses entirely or if the bullet hits the person, but causes a very superficial injury. Let's say it just scrapes them.

It's still a use of deadly force because of the foreseeable effects, not the actual effects. And that concept of foreseeable effect is what's foreseeable really at the time force is being used.


SCHLEICHER: And, Professor Stoughton, the fourth factor that you testified about, determining whether the officer's actions are appropriate, proportional and reasonable, will you please explain what you mean by appropriate, proportional and reasonable?


So, what we're talking about is sort of a balancing of harms here. This also pulls from Graham v. Connor and the Fourth Amendment standard, which talked about balancing the individual interest against the government interest.

The idea is, an officer cannot use more force than the situation justifies, that is, the foreseeable effects of the officer's use of force can't be disproportionate to the threat presented by the individual's actions.

SCHLEICHER: And, sir, did you take all of these factors into consideration in your -- performing your analysis in this case?

STOUGHTON: Absolutely, yes.

SCHLEICHER: I ask if you assisted with the preparation of demonstrative exhibit, demonstrative 953?

STOUGHTON: Yes, I did.

SCHLEICHER: And would the use of that demonstrative exhibit assist you in explaining your analysis and testimony to the jury?

STOUGHTON: Yes, I mean, especially how those factors apply.

SCHLEICHER: I'm going to offer Exhibit 953 for demonstrative purposes.

CAHILL: Any objection?


CAHILL: Nine-fifty-three is received for demonstrative purposes only.

SCHLEICHER: And before we publish that, first, I'd like to publish what's been received as Exhibit 17 and ask you, sir, if you identified, in accordance with your process, what particular force you evaluated.

So, if you would publish Exhibit 17.

STOUGHTON: Yes, so, there are two components to the use of force here. The first is the defendant's knee or shin over Mr. Floyd's neck.

The second is Mr. Floyd in that prone position while restrained, what you may refer to as proned restraint.

SCHLEICHER: At this time, I would like to publish Exhibit 953.

One moment, Your Honor.

Did you also look at demonstrative exhibit, Exhibit 945, that showed the relative position of the defendant and the other officers on Mr. Floyd?

STOUGHTON: Yes, I did.

SCHLEICHER: All right.

STOUGHTON: And, again, here you can see the two components of the use of force, the knee across Mr. Floyd's neck, as well as him being in the prone or face-down position while restrained.

SCHLEICHER: I'm offering Exhibit 949 for demonstrative purposes.

CAHILL: Any objection?

NELSON: For demonstrative purposes, no, Your Honor.

CAHILL: Nine-forty-nine is received for demonstrative purposes only.

SCHLEICHER: And using what you saw as Exhibit 17, which has been received substantively, and 949, again, explain what particular force you are analyzing and over what period of time.


So, again, both the prior image, the photograph, and this demonstrative show the knee, the defendant's knee, across the back of Mr. Floyd's neck, and Mr. Floyd face-down in that prone position while handcuffed.

The use of force here -- use of force is not always a flash-in-the-pan event. Firing a bullet might be, but other uses of force, including the uses of force in this case, are sustained. So, they start when Mr. Floyd is put into the prone position and when the knee goes across the neck, and the uses of force continue until the knee comes off the neck and Mr. Floyd is taken out of that prone position.

SCHLEICHER: And you indicated that the use of force included the defendant's placement of the knee on the neck. The other knee, where did that appear to be placed?

STOUGHTON: Yes, variously on Mr. Floyd's upper arm, shoulder or upper back.

I would put that, for purposes I imagine we will discuss, as part of holding Mr. Floyd in the prone position while restrained.

SCHLEICHER: What was your determination of the duration of this restraint period?

STOUGHTON: From the time Mr. Floyd was originally placed initially -- excuse me -- placed in the prone position, nine minutes and approximately 29 seconds until the knee was taken off of his neck and he was taken out of that prone position.


SCHLEICHER: And did you determine this period of time based on your review of using Officer Kueng's body-worn camera footage starting at 20:19:14 and ending at 20:28:43?

STOUGHTON: Yes, that's correct.

SCHLEICHER: And is it your testimony that, according to national standards, the use of force must be reasonable when it starts and it must be -- continue to be reasonable during the entire duration?

NELSON: Objection, leading.

CAHILL: Sustained. Rephrase.

SCHLEICHER: And, sir, can you make any comment about how long the particular use of force must be reasonable, as in the defined restraint period?


So, use of force that is sustained over a period of time does have to be reasonable at the time force is initiated, that is, when force is first used and throughout the duration that that force is being used.

SCHLEICHER: And I believe you testified that using and applying these national and constitutional standards, it's viewed through the eyes of what a reasonable police officer -- a reasonable police officer at the scene; is that correct?

STOUGHTON: That's correct. That's part of the Graham v. Connor framework, as well as certainly has been adopted into generally accepted police practices.

SCHLEICHER: So, then, using your four-step analysis to identify relevant facts and circumstances that would have been apparent to a reasonable officer on the scene, would you please summarize for the jury, based on your review, what information would have been available to a reasonable police officer in the defendant's position prior to his arrival at the scene that day?


So, the reasonable officer on the scene standard is an objective one. We don't just adopt an officer's idiosyncratic subjective perspective. We take the reasonable officer and put them in the actual officer's position and say, what would the reasonable officer have perceived, seen, heard or believed?

In this case, prior to the reasonable officer in the defendant's position arriving on scene, he would have been aware that there was a call, I believe, dispatched about counterfeiting, that the individual was described as possibly intoxicated.

The individual later identified as Mr. Floyd was identified as possibly intoxicated, that two other officers had taken the call, had, I believe, taken someone into custody and called a Code 4, identified that they had the scene under control and did not need additional resources.

SCHLEICHER: Now what I would like to do is, turning to the demonstrative 953, right, you can see the beginning of this use of force evaluation.

And you have this divided into different sections. Up top, you have threat factors. At the bottom, you have foreseeable effects of force. You have the defendant and his conduct up top, activity of Mr. Floyd on the bottom. Is that right?


The threat factors are really the behaviors of Mr. Floyd and whether they presented any threat, and the foreseeable effects of force are really about the effects of the use of force on Mr. Floyd, yes.

SCHLEICHER: Now, what I'd like to do at this time is show you a first clip.

This is taken from what has been received into evidence as Exhibit 45, beginning at time stamp 20:17:40. And you see on the demonstrative here it says, defendant arrives on the scene.

I would like to publish that clip first.

(BEGIN VIDEO CLIP) UNIDENTIFIED MALE: You can't win, bro. You can't win.

GEORGE FLOYD, DIED IN POLICE CUSTODY: I'm not trying to win. I'm not trying to win.

UNIDENTIFIED MALE: Go on, get in the car, then.


UNIDENTIFIED MALE: Go on, get in the car.


FLOYD: He know it. He know it, too, Mr. Officer. You all hear me.

Don't do me like that, man.


UNIDENTIFIED MALE: OK, so you get in this car, we can talk!

FLOYD: I am -- I'm claustrophobic.


UNIDENTIFIED MALE: I'm hearing you, but you're not working with me.


FLOYD: -- in the front, please?



FLOYD: I'm claustrophobic, Mr. Officer.

UNIDENTIFIED MALE: Get in the car.

UNIDENTIFIED MALE: Get in the car.


FLOYD: OK? I'm not a bad guy, man.

UNIDENTIFIED MALE: Get in the car.

FLOYD: I'm not a bad guy.

UNIDENTIFIED MALE: You ain't going to win!


SCHLEICHER: All right, now, sir, this is taken from the perspective of the defendant's body-worn camera; is that right?

STOUGHTON: Yes, it is.

SCHLEICHER: What information would have been apparent to a reasonable officer based on the exchange we just observed?

STOUGHTON: So, a reasonable officer in the defendant's position would have realized that Mr. Floyd was in handcuffs, would have realized that there were two MPD officers already on the scene, along with two more now, the defendant and the officer that he arrived with.