Warning: Long post.
First, for my
caveats:
Caveat #1: I am
not giving legal advice on which anyone on here should rely. I am an attorney, but you should never, and I do mean
never use the words in this post to build your defense. I am an attorney, but I am only licensed in my home state and federal courts. Unless you live in Arkansas, I am not licensed to practice in your jurisdiction. Besides, you have not hired me, and I have not reviewed your case.
Caveat #2: I have not yet fully researched the issue of self-defense shootings. I have spent what little spare time I have researching this issue lately, but it will take a while for me to become fully versed in self-defense law.
Caveat #3: I have practiced in several areas over the course of my career, the most recent two being criminal defense attorney and prosecutor. (I was a criminal defense attorney, and then landed a job that included prosecution duties.) However, I have never had a defense case involving a shooting, and my prosecutorial duties are primarily in DWI cases.
Now, with all of that said, I want to comment on pax's post. Despite her last statement, that her post was just a "researched, layman's understanding" of the law in self-defense shootings, I'd suggest going back to read that post again. Maybe more than once. She makes several outstanding points. There is, in fact, lots of good information there, but there are a few specifics worth highlighting.
Excellent point #1:
pax said:
. . . . Cops and prosecutors get paid to find criminals and bring them to justice. That's the job. . . .
This is true. I work with police officers every day, either in prosecuting their cases, or defending them in lawsuits. I spent 3 years defending them in civil suits, jumped the fence and worked as a criminal defense attorney for a few years, then jumped the fence again and now I prosecute some of their cases. As a whole, they're a great group to work with, and I wouldn't trade them for the world. Still, you've got to understand that for most of them, "cop" isn't what they
do, it's what they
are. What they
do is find bad guys. In any case where someone has been shot, whether that person lives or dies, the police will go looking for a bad guy. If you're the last person standing, guess who the first suspect is.
Excellent point #2:
pax said:
. . . .So when you hear someone say, "As long as the shooting itself is justified," that person has just skimmed right past the most important concept of all: the shooting isn't justified until the cops and prosecutors say it's justified.
Of course, if you commit murder and get tried for murder and convicted of murder, that's one thing. But if you reasonably and vigorously defend your life in a somewhat muddled or confusing set of circumstances, and someone dies as a result, that's when you end up in court and that's when all of this comes into play.
Read the bolded part. Twice. If you're lucky, and smart in handling yourself immediately after a shooting, the cops and prosecutors will determine that the shooting was justified. If you're not, it will take a jury, and maybe 2 or 3, to decide that it was justified. As someone pointed out, there's more than one legal process that can be set in motion by the shooting.
First, a criminal prosecution. If the shooting happens in your house, in the dark of night, and the BG has been kind enough to bring his crack pipe, duct tape and switchblade with him, you might escape being arrested. If it happened anywhere else, or under any other, murkier circumstances, you may well be arrested & taken to jail, where you could spend a day or two waiting to see a judge for a bond hearing. If you can’t make bail, you’ll stay there until trial. After that, the proceedings could take months or years before it’s all finally over. Frankly, even if you eventually win, you could lose your job (can't go to work if you're in jail), and defending it could cost a whole boatload of money if you hire private counsel.
Second, a possible civil suit, either by the BG himself, or his estate. It's possible to be vindicated in the criminal trial and still lose the civil trial. Why? Because there's a lower standard of proof in civil trials. The prosecutor will have to prove X, Y & Z
beyond a reasonable doubt. In the civil case, the plaintiff will only have to prove A, B & C
by a preponderance of the evidence. That means, in essence, that the plaintiff in the civil case only has to prove that it is more likely than not that things happened the way he said it does. It’s possible for the plaintiff to clear that hurdle, even if the prosecution can’t clear the (higher) bar of BRD. Again, even if you win the civil suit, it can cost you a boatload of money to defend it, and take up months or years of your time.
Excellent point #3:
pax said:
. . . . But I won’t carry handloads for defense, for this reason: I want my attorney to have every possible advantage at trial.
Let me restate one of my
caveats: I have not yet fully researched the issue of self-defense shootings. The issue of admission of the scientific and forensic evidence involved in a shooting is unclear to me. With that said, I’ll just throw out a couple of thoughts on the matter.
So, shooting from the hip (no pun intended), from a criminal defense perspective, it occurs to me that being able to introduce factory loads and their performance could be very, very valuable. Here’s my thinking: If you have to introduce them to show the distance from the attacker, for example, you might be able to get that in
without the shooter ever having to testify. I say “might,” because getting that in would rely on several factors, some of which could be absent. On the other hand, getting in the scientific stuff could be much harder when dealing with handloads.
Scenario #1: Factory loads. If I have a receipt for the bullets, I can show when and where they were purchased by having someone from Wally World testify as to the receipt, and what it shows. Maybe there’s a video of my client at WW, buying the ammo. In that case, I can have him identified by someone from the store. I can have folks from the state crime lab testify as to casings and projectiles recovered from the scene. Then I can put on my experts to testify as to the bullets that were used in their testing, and comparison to the ones purchased. No client testimony required.
Scenario #2: Handloads. If my client had used handloads, there’s a very good chance that the only person who can testify as to how they were loaded is my client. At that point, my client must give up his Fifth Amendment right in order to testify. Even assuming that my client is not guilty of the crime charged, I may not want him to testify, or he may not want to. Sometimes a client should (or may want to) refrain from testifying for reasons other than the criminal case at hand. If I think that a civil suit (like wrongful death) is coming down the pike, I may not want him putting on sworn testimony until he absolutely has to. If he was on his way home from his girlfriend’s house, and the shooting happened when he stopped at a convenience store, he may not want his wife to know where he’d been (and then I’d have a divorce case on my hands).
As a final note, I have to comment on the remarks about lawyers. If you live and love to hate lawyers, and nothing I say will ever convince you that we’re anything but a bunch of lyin’ scumbags, you might want to stop here, because I’m about to defend them (us).
First of all, despite common conceptions (and believe it or not), lawyers are as hard-working and honest as any group of people I've ever met. Are there some scumbags in the bunch? Sure. Name me one profession that doesn't have a few of those. We’re bound by the Model Rules of Professional Conduct (which may go by other names in other states), and the bottom line on that is that if we’re dishonest in our dealings or in court, we can lose our license to practice law. I don’t know about other lawyers, but my student loan company wants its money back, whether I get to keep my license or not. And working as a lawyer is the best money that I can make, given my education and skills. Even if I were not an honest man at heart, fear alone would to keep me honest until those student loans are paid off.
Second, lots of plaintiff's work is done on a contingency basis. If you've seen the ads that say things like "if we don't win, you don't owe us a dime," that's what they're talking about. Any good plaintiff’s lawyer develops a very, very good ear for a winnable case. Cases are won on the facts and the law, not who has hired the better liar. If a plaintiff’s lawyer doesn’t develop that ear, they don’t stay in business long. That’s the simple, practical truth. A plaintiff’s lawyer who keeps investing time on contingency-based cases, and keeps losing, just winds up investing lots and lots of time in cases that don’t pay. Lawyers can’t stay in business by working for free, any more than anyone else.
Finally, for those of you who have such an intense dislike of lawyers . . . When someone is involved in a self-defense shooting, and is then charged with murder, who exactly do you think defends them?
) How do you think she would react to being on a jury in which there was any question about guns?
confused