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tv   Day 12 of Trial for Derek Chauvin Accused in Death of George Floyd  CSPAN  April 13, 2021 10:54pm-11:52pm EDT

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you can see officer chauvin focus started to move from mr. floyd to the crowd. at one point officer chauvin felt threatened he pulled his gaver spray canister and verbal commands to stand back. no he deals with a bigger threat. nelson. nelson: summarize the final opinions you have made. i felt officer chauvin interactions with mr. floyd were following his training. following current practices in policing and objectively reasonable. nelson: i have no further questions. [sidebar]
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>> we will have a? bathroom break. five minutes. officers are train for, could you describe >> you are still under oath. schleicher: good afternoon. i am understanding your testimony you indicated fundamental proposition the defendant's conduct of restraining mr. floyd in the prone position on the ground handcuffed was not a use of force. >>n that's correct. schleicher: i believe
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according to your testimony because in your opinion that position is not likely to inflict pain? >> that is correct. schleicher: if it did inflict pain would that change your opinion? >> only if the positioning of the body or if the officers were manipulating mr. floyd's hands to create pain and that is use of force. schleicher: my question is if mr. floyd - - mr. floyd actually experience pain with that change your opinion? it is the use of force of pain is inflicted upon mr. floyd? >> if the pain was inflicted through control then yes through prone control. schleicher: and prone control is placing mr. floydyd on his stomach. correct? facedown. >> yes.
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schleicher: handcuffed. and as applied here on a hard service - - surface, the pavement. >> yes. schleicher: if we talk about that as prone control do you use that interchangeably with prone restraint? >> yes. schleicher: i will refer to prone restraint. facedown handcuffed behind themr back. and at some point the defendant is on top of him. is that right? >> he had his knee on him i don't know if i would say that is on top of him. schleicher: can i publish exhibit 17. as shown here you can see the exhibit. >> yes.
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schleicher: you see the defendant has his knee on top of mr. floyd. >> i see his knee the upper back area. schleicher: top or bottom or side. where is his knee? >> it is on the upper spine and neck area. schleicher: is the upper spine on the top? >> we can use top. schleicher: so you would agree with me. schleicher: the defendant is on top of mr. floyd. >> hisfe knee is on top. schleicher: you cannot see where his knee is in this photograph. correct. schleicher: you havee reviewed body camera footage and looked at the other exhibits
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submitted? >> most of them. schleicher: you are aware. here is the defendants left me. >> yes. schleicher: are you aware at this point in time the right knee is also on top of mr. floyd? >> i believe itde was on his arm or to the side of his body. schleicher: you believe it was on his arm? >> yes. schleicher: but on top of him. >> yes. schleicher: so the defendant is on top of mr. floyd on exhibit 17. >>o when i say on top i feel complete body. what i see as the knee position. schleicher: both knees on top of mr. floyd. >> yes. schleicher: are you where the defendant weighed 140 pounds at the time this took place by
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your review of the records? >> yes. schleicher: does clothing and equipment that the defendant is wearing, could that add some amount of weight to the defendant? >> yes. schleicher: that word increase the pressure or force at this time.. >> it could . . . . . . . . theg
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at your premise, it could produce pain then it would be a use of force, wouldn't it? >> if the officer's intent was to inflict pain -- >> you said it was unlikely to produce pain and that's why it wasn't the use of force. you now said it could produce pain and so, regardless of the officer's intent, if this act we are looking at here in exhibit 17 could produce pain, would you agree that what we are seeing here is a use of force? >> shown in this picture, that could be a use of force. >> okay. could you take that down,
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please? and sir, i'd like to talk to you a little about positional asphyxia. if ito understand your testimony about a positional asphyxia, this is something you're familiar with, right? >> yes. >> is this something you've taught in courses to budding officers, dangers of positional asphyxia? >> yes. >> and is it true that positional asphyxia is a result of some oxygen deprivation, is that right? >> yes. >> and that is as a result of a chest cavity, the inability for the lungs to expand? >> yes. >> and in positional asphyxia it is understood that it can be a result of having your chest, your body weight on the ground in the prone position. your own body weight.
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>> yes. >> that could cause positional asphyxia. >> if you>> and i were to lie wh our handcuffs behind our back i don't think we would be prone to positional asphyxia. >> i will take that as a compliment but there could be instances in which a person in means of their own body weight could experience positional asphyxia.ha >> true, possible. >> and things that could further exacerbate or contribute to that would be the use of restraint, correct? handcuffs behind the back. >> and additional pressure as well. >> if someone was pressing down on you that would sort of takebe the place of excess body weight
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and that would contribute to the positional asphyxia, true? >> possible. >> and if the pressure, obviously the greater the pressure being exerted, the more of a potential danger of positional asphyxia, fair? >> yes. >> and the dangers of positional asphyxia due to being restrained in the prone position, this is a known risk, is that right? >> yes. >> and it's something you know about, true? >> yes. >> it's something you teach in your courses of training. >> yes. >> and even in law enforcement, did youso say since 72 --
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>> 29 years. >> 29 years. at what point did you become aware of the dangers associated with positional asphyxia? >> probably the late '80s. >> so, over 30 years that you've been aware of the dangers of positional asphyxia, right? >> yes. >> and would you agree that is something that is commonly understood and law enforcement, that this is a known risk? >> yes. >> so this isn't new information. >> no. >> and there are ways to mitigate against the risk of positional asphyxia that are known to law enforcement, is that right? >> yes. >> and i think what you testified to is the side recovery position. can you describe the side recovery position? >> so, if a suspect is handcuffed, you just pull them to their side and have them cut their knees up, kind of like a
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fetal position almost. >> like a fetal position. and so, you've also been a defensive tactics instructor, correct? >> yes. >> and you've been certified as such, right? >> yes. >> are you aware of how one might put somebody in a side recovery position? >> it's very simple to do, just pull them to their side. >> does it take a long time? >> no. >> so it's simple, it's fairly quick, and in your opinion, it alleviates or can alleviate against the dangers of positional asphyxia, true? >> yes. >> i know you reviewed areas of
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policies in connection with your review of this case, is that right? >> yes. >> and getting back to the issue of whether what we saw in exhibit 17 at that time was a use of force, are you aware of how looking at the police department they define force? >> not specifically, no. i would have a general understanding of it. >> generally, would you agree or based on your review, would you accept that the minneapolis police department generally defines force to include restraint? >> it can. >> particularly if it is restrained that could result in some sort of injury or pain. and so, you would agree then just as we are at this point in your testimony that what we saw in exhibit 17 would at least sit
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within the minneapolis police department policy of use of force, fair? >> yes. >> and a reasonable police officer would adhere to the policies of their own department, true? >> yes. >> your analysis of how you are going to go about a force review, you indicated that one of the things you look at is the severity of the crime, true? >> yes. >> and the severity of the crime is something that would you agree the label of the crime, whether it's a misdemeanor or a gross misdemeanor in minnesota or a felony isn't as important as the underlying conduct involved in the crime?
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>> i agree. >> so a felony level check made from the use of force standpoint may be less serious than a misdemeanor domestic assault, fair? >> so, by the nature of the terminology of the crime, i agree but a domestic violence case is a serious and potentially violent environment. >> in this case, the misdemeanor labeled as a misdemeanor, and assault from the use of force perspective would be more serious than say writing a bad check. >> it could, yes. >> and you are aware that in this case, the initial call that the officers were responding to was a counterfeit allegation or forgery allegation of a 20-dollar bill. >> right. >> and could you agree that in terms of the range of the
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criminal offenses, this would be a fairly low level from the use of force perspective. >> yes. but again as i mentioned earlier -- >> what i was asking is if you could agree and i will give you the chance to explain if you want, but you would agree that in terms of the range of different criminal offenses that are available, counterfeiting in the legislative 20-dollar bill is on a less serious side. >> yes. >> and what you are about to say is that could change. >> it's all about the conduct and resistance of the suspect. >> which is completely different than the seriousness. i didn't want to be rude but let's keep this to the analytical framework for now. we will get to the response of the subject. >> and would you say, would you agree with me the response of
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the subject, the activities of the subject and officers on the scene is probably the operative, the important fact here. that's what you need to look at. >> yes. >> so in terms of the seriousness of the crime that's not as important, let's look at the eminence of the threat. did you discuss eminence of the threat. officers have to assess that. could you please for the jury explain in your words what you mean by threat. what is a threat? >> you look at a person and you can't see their hands. they have their hands in their pocket. that could be a threat that in their pocket is a gun. you look at a person and the way they position their body, angle their body back into may be a confrontational stance. that could be a threat. >> right now i have my hands in
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my pockets. i'm trying to be confrontational. i don't know if i am, but mia threat? >> if i was walking up to you on the street, and it is going to be a reasonable suspicion that you've committed some type of a criminal activity, i would form a position of cover ideally. would you agree there is a difference between a threat and a risk? any person can present a risk, right? someone can have their hands in her pocket and unexpectedly have a weapon, true? >> yes. >> or not. >> or not. >> but would you agree to the threat when you are doing something to show some sort of intention to cause harm, approaching you in an aggressive manner. that would be a threat.
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and would you agree that officers are authorized to use force to respond to a threat? >> yes. >> officers are not authorized to use force to respond to a mere risk, fair? >> correct. >> there are different factors that could be a risk versus a threat. someone that is large in stature. that could be a risk. but it isn't in and of itself. you can't use force on someone just because they are large. >> that's true. >> the use of drugs or intoxicants, that could be a risk factor. >> yes. >> and on that subject, with respect to what a reasonable officer understand about the use of drugs and alcohol controlled
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substances, there's a whole range of drugs out there and there's a whole range of drug users out there. there are some that could cause someone to become aggressive, true and some that can cause the user to become somewhat sedated, true? >> true. >> so hearing that someone has, quote, been on something, that isn't necessarily a threat to the officer. >> unless there's behavior that makes the officer believe. >> behavior that they are drug influenced or that they are going to be doing something threatening to the officer? there is a difference, right? [inaudible] >> there's a difference between someone manifesting behavior or
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manifesting behavior. >> it could pose a threat. >> the manifestation that somebody's passed out. that probably doesn't constitute a threat to you. that's more of a vulnerability of the person using the controlled substance. so, if someone is on something in and of itself, that isn't a justification to use force, true? >> true. >> if the person on something is of large size, those things combine as a risk together those don't justify the use of force. >> there needs to be a third component. >> the behavior of the subject, what they did.
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>> in terms of the decision of an officer to use force, that is driven by the behavior of a subject, correct? >> yes. >> the decision to use force on a subject is not dependent on what some third party over whom the subject has no control. it isn't directed. >> i'm not sure if i understand the question. >> let's say you are distracted by something mr. nelson is doing. that isn't a justification for you to use force against me because i certainly have no control over mr. nelson. so, if there are for example in the instance of a bystander if the bystander is doing something that the officer finds threatening or irritating or
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distracting or annoying, those activities don't justify the use of force against someone that is not directing those activities, fair? >> yes. >> it might explain an officer's mind at a particular moment but it is not a justification for the use of force. >> i would agree. >> you talked about situational awareness and situational awareness is something that is important for the testimony and we could agree with that but in particular the situational awareness is something important for an officer to have, correct? >> and that situational awareness has to include all the facts and circumstances and the totality of the facts and
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circumstances presented to the officer at the time. and looking particularly at the behavior, it's important that the officer is situationally aware of the condition of the subject, correct? because if the subject does something aggressive, they need to adjust plan and use of force. but the officer needs to be situationally aware of that as well, fair? do you agree and having read the training materials and policy assuming you listened to some of the testimony in the case once
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somebody is in your custody, they are in your care. >> i agree. >> that is the training. in situational awareness would you agree that includes being aware of the subject's medical condition? if they are exhibiting signs of distress. >> loss of consciousness, inability to breathe? >> yes. >> loss of pulse. things a reasonable officer should take into consideration when determining whether to escalate force, de-escalate force or remain the same. now would you agree that the application of the use of force must be reasonable at the start
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and at the end? >> i agree. >> at all points in between. if there's ever a point to the e of force becomes unreasonable that it must stop or de-escalate, it must be escalated to the point of being reasonable because that is the standard, that and reasonability. in terms of proportionality, you've read the material and studied the policies, you are familiar with the mpd defense tactics and guide continuum and that continuum is a tool to use to make some kind of a rough approximation of what is a
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proportional response and you would agree based on the minneapolis police department policy that the sanctity of life and protection of the public, those are the cornerstones of the use of force policy, true? >> if your review of the minneapolis police department manual use of force, you received a copy of the manual, i am assuming. >> 5-300? >> yes. in your study of minneapolis use of force policy 5-300, could you see the phrase anywhere in the policy? >> no. so you would agree that it is not the cornerstone in the policy, the protection of the public and the sanctity of life. >> and i used the phrase use the
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one-upsmanship to describe how. >> it is an accurate description of what you are trying to express as far as proportionality. wouldn't that suggest what is the limit to what the officers do? >> i described earlier if a person tried to strike you or kick you that the officer doesn't have to respond with their own punches or kicks. they could respond with a better tool if the suspect were to grab hold of the officers but on, the officers may find themselves in an eminent threat and respond with potential deadly force. a. >> of the examples you used were stab and shoot you were some
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examples you were talking about in terms of one-upsmanship, but that wasn't the answer i was looking for. in terms of one-upsmanship isn't what the officers always limited in their response by the graham versus connor standards? so whatever step the officer takes to escalate or de-escalate it must be objectively reasonable, correct? so if someone that is being compliant, that's why that person cannot if a person is not resisting or not noncompliant, let me phrase that better, compliant, the officer isn't justified in using force.
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the control under your definition that is a restraint that isn't likely to inflict pain. but you have agreed exhibit 17 as we saw in this case was likely to produce pain. >> it could. >> so, if someone is not resisting and they are compliant, the use of control as you put it is just not justified, is it? >> and we talked about the use of force meeting to be appropriate and reasonable from the beginning to the end and all points in between. and the officer must reassess
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the situation and reevaluate the situation and be taking the information in. and that could include information from the suspect, the person upon whom they are using control. that could be information that they are getting from other sources, for example an officer makes a comment or assessment as to the condition of the subject, a reasonable officer takes that into account and that information is used to factor in and reassess the situation to determine if it should be escalated, de-escalate it or discontinued. >> you would agree and we were talking about the threat assessment and striking, shooting. you agree based upon your review
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in the case there was no stabbing attempt by mr. floyd, correct? and we should talk about the specific circumstances of what happened on may 25, 2020. would you agree and a general premise that mr. floyd was handcuffed, restrained in the prone position for nine minutes and 29 seconds? >> yes and during that nine minutes and 29 seconds, did you note any significant difference in the manner in which mr. floyd was restrained? did you note any differences in the manner in which mr. floyd was active in that restrained period from the first point to
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the 9:29. did you notice any differences with him? for example, when he first was placed prone on the ground, he was speaking. >> and actively resisting. >> when he was prone? >> yes. >> how long did that take place? >> a couple minutes. >> a couple minutes that he was actively resisting? >> yes, struggling against the officers. >> let's talk about the point when mr. floyd and the restrained first began. and i'd like to show you a clip from exhibit 127 which is a composite of the body worn camera and the video that is going to be starting at 20:19
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have:09 which can we agree the beginning of the restrained period? based on your review? >> i was looking for the screen. sorry. i missed the question. >> the body worn camera around the time of 21909 would you agree that this is right around the beginning of the restrained period? >> i will have to go with your approximation on the time. >> and when we pull up the clip, let's pull up the clip and publish it and hit pause right away you can see the notation on the top of the screen. would you agree that is the beginning of the restrained period? towards the beginning of the restrained period. >> i'm not sure, but i will take your word for it.
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>> this is going to go through 20:19. >> on the ground. >> right around 20:19:09 when we first saw the clip, mr. floyd was standing or kneeling by the squad car, true? >> yes. >> and did you hear what he said when he was kneeling at the squad car? >> thank you or something. >> i want to back you up a little bit in terms of the situational awareness. were you aware the defendant received many hours of paid training by the minneapolis police department, correct? around 889 hours. >> sounds about right. >> are you familiar with crisis intervention training and that the defendant took a 40 hour course and crisis intervention
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training. and that generally is it an on education to make people aware of different impediments to compliance such as mental illness or intoxication? >> true. >> anxiety would fit in, perhaps claustrophobia. >> and when the defendant first approached the vehicle, and this is before mr. floyd went in the back and first got on the scene, you could hear him saying that he had anxiety and claustrophobia. there was a struggle and you observed this in the back of the car when the officers forced mrr and then when he came out he was
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kneeling, he was handcuffed and said thank you. and it was after that point that he was then pushed over by the officers onto the ground, correct? >> and with the time he was pushed onto the ground, taking note of his body position, when he was initially pushed onto the ground, would that have qualified as a sort of side recovery position? >> we would have to back it up. i'm not sure how long he was in that position. >> were you able to see that? when mr. floyd was initially brought from the handcuffed
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position, he was in a side recovery position, fair? >> momentarily, yes. >> and he was taken out of the side recovery position by the officers and after that placed in the prone position, true? >> yes. >> and so, right after this clip runs we see him in the prone position, correct? >> face down on the ground handcuffed. >> yes. >> and the defendant and the officer took part in restraining mr. floyd in the prone position on the ground based on your review. and you were able to see from exhibit 17 that the defendant had one knee at least on mr. floyd's body on his neck and
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back area and you can see that he had his other knee also i believe you said near his arm but it was on his back. >> i couldn't tell from that picture. i took it from the snapshot of the body worn cameras. >> so when you say that, you are agreeing that the defendant was on mr. floyd's neck and back in some portions of the restrained. >> i would say upper back in the proximity of the neck and his right knee was towards or of his rib cage. >> on top of it though, correct? adding to the pressure, fair? >> i would like to show you for a little more clarification, exhibit 240 that has been received into evidence and this might provide a better view.
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okay so you testified a moment ago that you thought the defendants me was where? >> upper back and neck. >> would you agree in placing the circle would that be in his upper back? >> that would be his upper back. >> and i will place another circle that's the defendants knee, his left knee above the area that you identified as mr. floyd's upper back. the left knee is on his neck in this picture in exhibit 240. >> in this picture, yes. >> now i'd like to talk about his right knee. you can see mr. floyd's arm and you can see the handcuffs and this is the defendants right
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knee. would you agree that the defendant's right knee is on mr? >> it looks like it is on his shoulder blade area. >> would you clear that, your honor. so, the shoulder blade area that would be his upper back? >> yes. >> you would agree based on exhibit 240 that the defendant, his left knee is on his neck and his right knee is on mr. floyd's back. and i believe that your testimony earlier was that you watched the entirety of the body worn camera video is that true? and you would agree with me that
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there is a wealth of body worn camera footage in this case. and milestone video and surveillance video and bystander video. so you are able to view as an expert multiple angles. >> true. >> and so with that sort of redundancy built into the record, does that alleviate some of the concerns or considerations i think you were testifying to on your direct examination regarding how cameras react to light? >> yes. >> so, this exhibit, 240, is an image taken and you can see it is 2019:27. that is after the defendant
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placed mr. floyd in this prone position. >> after the defendant and the two other officers put him in the prone position on the ground. and the first video we played we demonstrated that the restrained we are talking about which you said was a controlled restraint or what was the term you used, prone control, that began around 2019. >> and the relative position on mr. floyd's body meaningfully change, did you? >> can you rephrase the question?
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>> did the defendant get up from the point in which the prone restraint began and ended, did he get up? >> no. >> did he let up off of him any pressure? >> it appears his body position changed and he was putting more weight over his calves as the restraint continued. >> are you able to identify based on your own review because i know you've looked at this and i'm assuming you've looked at it a lot, preparation for the testimony today. are you able to point to any particular portion of the record in which you say that the defendant shifted his weight to take pressure off? >> i would have to see the 14 body camera snapshots and then we can focus on those.
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>> i'm going to show you another portion of the body worn camera video. it's been received as exhibit 127. it is a composite of the body worn camera and the frazier video we are going to start at 20:23:11. >> it should be exhibit 127.
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>> this starts at 20:23:10. if you could play this portion, please. >> i can't breathe. >> stop, please. and then having review is that video, i would like to show you what has been marked as demonstrative exhibit 9:47. exhibit 947 you can see the still frame captured from the composite i guess or exhibit 15 that has been received in
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evidence. 8:23:14. this is roughly corresponding with the clip i just showed you. do you see the defendants foot on his left leg? >> you see how it is slightly off the ground? >> yes. >> you would agree given the orientation in this particular moment in time, there would be more pressure placed on his neck and back, true? >> it's possible. >> it's more than possible, isn't it? >> his movements could have in that moment taken mr. chauvin's foot off the ground. >> let's take a look at the clip that we just watched, please.
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>> how long are you going to hold him down? >> are those the movements you are talking about that could have moved his foot up? >> yes, i saw the officer reach out for a little balance. >> and the balance is important because when you place yourself with both knees on a person, that isn't a very good balance point, is it? >> it depends. >> apparently it wasn't here if the defendant was trying to
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balance himself against the car. a. >> or he's just responding to mr. floyd's movements. >> as you saw in the portion that you looked at, the defendants body weight was not being supported by his foot, because his foot was off the ground, correct? >> at that moment the picture was taken, yes. >> and that would increase the pressure on mr. floyd. >> it could be in response to his movement. >> whether it is in response to the movement, would it increase the pressure? >> i don't know. >> we have discussed a little bit about the defendants initial use of force to restrain
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mr. floyd. i would like to discuss now what happens next as you have analyzed all of these videos, but it's important that we get the full scope of for your opinion. going back to exhibit 127 and begin at 20:19:23. >> if you could start playing now. >> i can't breathe. i can't breathe. >> thank you. so during that segment, that was about nine seconds after mr. floyd was placed in the prone position, would you agree?
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>> yes. >> during that period of time, you heard mr. floyd say multiple times i can't breathe, true? >> yes. >> did you count how many times? >> no. >> i counted six. would you have any reason to dispute that? >> no. >> the defendant would know, a reasonable officer would know that this prone position could present a danger of positional asphyxia, true? >> potential. >> and it's important then in terms of situational awareness to not only be aware of the training and prior knowledge that to pay attention to what the subject is saying. the subject here is saying multiple times i can't breathe, correct? now i think your testimony earlier said there can be times in which people can say they can't breathe and they don't
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mean it. they might be faking it i guess. >> they could. >> that the context is everything, isn't it? >> it can be. >> part of the reasonable police officer analysis, using a little bit of their common sense, fair? >> yes. >> so, if i have been standing here talking to you normally in a normal tone and a normal voice and tell you i can't breathe, i'm standing talking to you and you might have reason to doubt me, correct? >> yes. >> but a situation we have here where you are physically on top of someone in a position which based on your training and your experience and knowledge could cause positional asphyxia, that is a different context, correct? >> yes. >> and in that context a
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reasonable officer would acknowledge and consider the possibility that what they are doing is causing a problem, wouldn't they? >> or you would interpret what mr. floyd is doing while he's making the statements and it appears to me in the video that he was struggling. >> struggling or violent? what a reasonable police officer on the scene consider whether somebody is actively resisting or writhing on the ground because they can't breathe. >> prior to that, you would acknowledge that there was a struggle, correct? physical struggles can be exhausting in your knowledge and experience, another potential risk factor associated is
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positional asphyxia. >> it can, yes. >> let's start with alcohol. >> i don't know. >> drug intoxication could also be a risk factor with positional asphyxia and when we talk about the different factors and the things we have known they would have taken those factors into account as well. let's take a technology break at this point.
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>> 87% of the people surveyed said they want to work remotely at least one day a week and a lot of people want to work even more than that. only 13% said they want to work full-time on site the way they use to so that's been a change for employers that are used to having everyone in the office every day people communing wanting to live closer to their jobs. that is no longer quite as important.
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back now to the trial of the former minneapolis police officer derek chauvin. the day concluded with more questions for use of force


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