Get a lawyer before talking to police

[johnelmore]

I know some here will bring up plausible situations on talking to police outside of an attorney. I acknowledge that. However, my general advice is to exercise the right to stay silent and get a lawyer asap. I have read one too many articles and heard one too many stories of people getting into trouble by not exercising their rights.

I am not an attorney myself, but I always tell people when the topic comes up to stay silent and get a lawyer. There should be a sticky on this and I hope the mods can put together a good thread for such a sticky. This subject gets rehashed so many times, but its great advice which should always be followed. I have no idea why so many people cant follow this basic advice.

Simply put in plain English for all to understand when the man with the badge comes knocking then its not a time to put on display your great skills of speech and oration. Its a time to close the mouth, but before the mouth closes then say clearly...I want a lawyer.

 

[4thPoint]

Excellent advice.

It's hard to say, but when Officer Friendly is approaching you to ask investigative questions, the odds are NOT that he's looking for you to explain how your conduct is innocent. His intention is to find criminal activity; if the answers to his question don't produce evidence of criminal conduct it just means that he's asking the wrong question and just needs to find the right one.

 

[Tom Servo]

Are we talking about maintaining silence after an armed confrontation, when charged with a weapons violation, or just in general?

"Mouth shut and lawyer up" isn't really the solution for every situation.

 

[ronl]

If you are in an armed confrontation it always looks better if you are the one making the call. When the police arrive, simply say , "I was attacked by the person, here is his/her weapon, here are the spent cases. I will make a statement within 24 hrs. after I have consulted with my lawyer. There is no need for anything more, unless you want to get yourself in trouble.

 

[Frank Ettin]

On 2 May 2013 the OP raised essentially the same issue in this thread.

As I outlined in this post, if you have just had to defend yourself, remaining silent until you see your lawyer might not be the best idea:

Yes, we have a right to remain silent. But there will often be a question of when to invoke that right, and when to speak up. If we witness a crime, should we not report it. If we witness a crime, should we not cooperate with a proper investigation.

But this issue usually comes up when we might be involved in an incident. And even then. silence might or might not be the best idea.

I am not an attorney, but I suspect johnelmore is not, either. You do have a legal (and moral) obligation to cooperate with investigating officers up to the point of an arrest (Miranda warning) or to the point where you believe you are being treated as a suspect.

Obviously, if you shoot someone on the street, your best course is to not answer anything other than name and address without an attorney present. But the idea that you should never talk to the police except through an attorney is absurd. If johnelmore had seen one of the Boston bombers dropping his backpack, would he refuse to give the police a description without an attorney present? I hope not.

I am an attorney. But I'm not your attorney. I'm not giving legal advice. I'm providing comment on a legal topic based on my training and experience. So --

Keeping Silent Isn't the Best Idea in a Self Defense Matter

But Don't Say Too Much.

Call 911. Be the first to report the incident and do so immediately. If you don't report it, or if there's a long delay, you will appear to have a guilty conscience.

Then, having taken LFI-I with Massad Ayoob, spending time with him and helping with a class of his in Sierra Vista, AZ not too long ago, I'll go along with his recommendation for when the police arrive.

[1] While one has a right to remain silent, clamming up is what the bad guys do. Following a self defense incident, you'll want to act like one of the good guys. You also won't want the investigating officers to miss any evidence or possible witnesses. What if the responding officers miss your assailant's knife that you saw fall down the storm drain? What if they don't know about the guy you saw pick up your assailant's gun and walk off with it?

[2] At the same time, you don't want to say too much. You will most likely be rattled. You will also most likely be suffering from various well known stress induced distortions of perception.

[3] So Massad Ayoob recommends:

• Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
• Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
• Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
• Pointing out possible witnesses before they vanish.
• Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

Pleading Self Defense is Very Different From the Common Lines of Defense to a Criminal Charge.

A lot of folks point to the "Don't Talk to the Police" video that is making the rounds on gun boards. But it is about a police contact in general. It works fine when you aren't claiming self defense, and it's up to the State to prove your guilty beyond a reasonable doubt. But things work differently if you are pleading self defense.

Basically --

[1] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.

[2] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

[3] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

Let's go through that again.

In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

So in such cases, it probably doesn't pay for you to say anything to the police, at least early on. Let them do the work of trying to amass evidence to prove the case against you. There's no reason for you to help.

But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the more convincing your story, and your evidence, is, the harder it will be for the prosecutor to meet his rebuttal burden.

And people need to understand that sometimes what you don't say can be used against you too. The Supreme Court has ruled that one may be asked questions in under circumstances not amounting to a custodial interrogation, and one's silence in response to such questioning may be used by the prosecution (Salinas v. Texas, No. 12-246, Supreme Court 2013).

 

[johnelmore]

Its tough to state matter of factly in a message forum what to say, when and for what situation. In fact, its tough to explain the concept in general even in person.

A good motto to remember would be to "shut up and lawyer up". That motto would help more people then it would hurt. I can see a lot of guys in the news would have benefited from such advice. Of course, there are things you can say, but that would be too tough to explain to all audiences and not everyone could execute flawlessly when the time comes


I say lets keep it simple and stick with shut up and lawyer up. It sounds harsh, but its easy to remember and will work for most situations.

I would rather tell my own kids "look just shut up and lawyer up" then to launch into an explanation on what can and cannot be said.

 

[OldMarksman]

Posted by johnelmore: A good motto to remember would be to "shut up and lawyer up". That motto would help more people then it would hurt..... I say lets keep it simple and stick with shut up and lawyer up. It sounds harsh, but its easy to remember and will work for most situations.

How many are "more"? How much is "most"? Just over 50%? More than 75%? What is the basis for that assertion? What about the remainder?

The problem is that that advice can lead to the disappearance of evidence and the disappearance of witnesses that the police will likely not be looking for when they arrive at the scene and that may be crucial to a defense of justification.

I don't buy that advice for self defense cases.

 

[Frank Ettin]

...I say lets keep it simple and stick with shut up and lawyer up. It sounds harsh, but its easy to remember and will work for most situations.

I would rather tell my own kids "look just shut up and lawyer up" then to launch into an explanation on what can and cannot be said.

Thank you for your advice. Now exactly what are your professional qualifications for your advice? Why should any of us pay attention to you?

On the other hand, as the Supreme Court noted in Salinas:

...In Roberts v. United States, 445 U. S. 552, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received aharsher sentence for his failure to cooperate. In so ruling,we explained that “if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate.”...

and:

...To be sure, someone might decline to answer apolice officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither isevery possible explanation protected by the Fifth Amendment....

And while if you have been involved in a self defense incident it's perhaps better to say nothing than to say the wrong thing. But it's better yet to say the right things. We study and train not to just get by, but to mange things in the best and most effective ways.

 

[OldMarksman]

Let me add that the advice of attorney Andrew Branca, author of The Law of Self Defense, closely mirrors what Frank Ettin has told us here.

See this.

 

[ATN082268]

And while if you have been involved in a self defense incident it's perhaps better to say nothing than to say the wrong thing. But it's better yet to say the right things. We study and train not to just get by, but to mange things in the best and most effective ways.

I think at least some of the issue is saying or stating something in a way that can be twisted by the police to be used against you. The movie My Cousin Vinnie has one (perhaps exaggerated) example of this I suspect most people don't speak in lawyer like detail on a daily basis and this is probably compounded by experiencing a traumatic situation like being involved in a shooting. In any case, I don't ever see anything wrong with exercising your legal rights.

 

[JohnKSa]

In any case, I don't ever see anything wrong with exercising your legal rights.

I can think of virtually innumerable ways that exercising one's rights in an imprudent/unwise manner could cause a person a lot of different kinds of trouble, including legal trouble in some cases.

It's important to understand that just because we have a right to do something that doesn't always make it the smartest thing to do. Exercising a right without any thought or without proper understanding of the ramifications of one's actions can certainly result in a negative outcome.

...most people don't speak in lawyer like detail on a daily basis...

The suggestions as to what to say are very simple and don't depend on understanding or being familiar with legalese.

• That person was trying to kill, hurt, shoot, etc. me, he dropped his weapon over there.
• I want to press charges against him.
• Those people over there saw it all happen.
• I will cooperate but I am not going to say anything else right now until I talk to a lawyer.

 

[Uncle Buck]

I do not understand why people want to give legal advice, when they are not lawyers. Neither do I understand why one would listen to a lawyer and ignore his/her advice.

I do not mean to imply that I understand all the legal talk and ramifications of each action. But it does continue to amaze me the number of people who miss the basics.

The suggestions as to what to say are very simple and don't depend on understanding or being familiar with legalese.
That person was trying to kill, hurt, shoot, etc. me, he dropped his weapon over there.
I want to press charges against him.
Those people over there saw it all happen.
I will cooperate but I am not going to say anything else right now until I talk to a lawyer.

I have been told this by our family lawyer, by a criminal lawyer and read it numerous times. I can only hope that if, God forbid, I am ever in a situation where I really need this information, I can remember it.

Not cooperating with the police and then hoping your lawyer is able to get you off is one option, but lawyers can only work with what you give them. (I think that is para-phrasing something Frank Ettin said.) I hope that I would be able to remember the guidelines above and give my lawyer a little more to work with.

I do not know how many prosecuting attorneys we have here, but I do wonder how they would handle it in court if I refused to cooperate until after I got a lawyer? How would they introduce me to a jury? What sort of picture would they paint?

 

[Spats McGee]

I do not know how many prosecuting attorneys we have here, but I do wonder how they would handle it in court if I refused to cooperate until after I got a lawyer? How would they introduce me to a jury? What sort of picture would they paint?

I'm not a "full-fledged prosecuting attorney," but my job duties do include district (city) court prosecution. Traffic court, environmental court (code violations, high grass, barking dogs, etc.). I have also handled a few criminal defense cases in the past.

With that caveat, I would urge everyone to read, and then re-read, Frank Ettin's post (#5) very carefully. While the precise contours of the law vary from state to state, it's an outstanding overview of the issues.

As far as refusal to cooperate after lawyering up, I'll have to come back to that, because I have to go prosecute for a little while this morning.

 

[johnelmore]

My experience is life experience and I am an old man. I walk out the door each day and each time I do there is something different to see. When you get to this point in life your mind should be filled with experiences just like mine. You should have been taught many lessons.

I know from those many experiences in my own life, as well as reading and hearing other peoples experiences, that when in doubt its best to say nothing not just in legal situations involving the police, but all situations. Sometimes the best thing to do is sit back and say nothing. I remember many times in the past thinking to myself "I shouldnt have said anything". Maybe those words came to yourself on occasion over the course of time and experience.

Its best to learn early on that what you say can get you in more trouble then what you dont say. I dont make that statement as a lawyer, but as an older man telling a younger man some worldy advice.

If I brought the issue up once before I apologize, but I see so many news articles where firearms owners get themselves in more trouble by what they say and not what they dont say. There should be a sticky on the right to remain silent and to have an attorney. Im not sure why so many dont know these basic rights.

 

[Frank Ettin]

My experience is life experience and I am an old man....

I also have a few years on me. I retired in 2007 and am on Medicare. Of course much of my life experience and work experience has been as a practicing lawyer.

...I know from those many experiences in my own life, as well as reading and hearing other peoples experiences, that when in doubt its best to say nothing not just in legal situations involving the police, but all situations. Sometimes the best thing to do is sit back and say nothing...

And I know from my experience that sometimes it's best to say nothing. But I also know from my life experience and my experience as a lawyer that usually the very best thing is to say the right things -- and no more.

As it's been written, there's a time for silence and a time to say something. What's important is recognizing when to speak and what to say.

Anyone can shut his mouth. But the wise man masters his tongue and uses it appropriately.

 

[Brian Pfleuger]

Shall we rely on the life experiences, memory and interpretations of a single, self-proclaimed "old man" or rather on the collective wisdom of the (tens of) thousands who make a living working in the legal system that we're discussing?

The problem I see here is that you are simplifying the issue to "Talk" or "Don't talk.". The issue is not that simple.

The correct answer, in a generic sense is "Say the right things and then shut up."

"The right things" are almost never going to be nothing. There's virtually always going to be something that needs to be said, as has been repeatedly explained.

 

[Aguila Blanca]

My experience is life experience and I am an old man. I walk out the door each day and each time I do there is something different to see. When you get to this point in life your mind should be filled with experiences just like mine. You should have been taught many lessons.

I am also an old man. I have undergone a great many experiences in my life, and I very much doubt that many of them are the same as the experiences you have undergone in your life. I also doubt that many of your life experiences have been the same as mine.

So far, what we have in common is that we're old.

Depending on your definition of "old," it so happens that Frank Ettin is also a (somewhat) old man. Not as old as I, and perhaps not as old as you, but not exactly a spring chicken. Beyond that, though ... Frank Ettin just happens to be an attorney at the end of a long and successful career. So I hope you'll understand if I choose to pay considerably more attention to his advice than to yours.

 

[OldMarksman]

Posted by johnelmore:I know from those many experiences in my own life, as well as reading and hearing other peoples experiences, that when in doubt its best to say nothing not just in legal situations involving the police, but all situations.

Its best to learn early on that what you say can get you in more trouble then what you dont say. I dont make that statement as a lawyer, but as an older man telling a younger man some worldy advice.

...I see so many news articles where firearms owners get themselves in more trouble by what they say and not what they dont say.

You have simply repeated yourself (once again), without providing any substantiation for your opinions.

Does your "experience" tell you that, upon arriving at the scene of a shooting incident, officers will be for some reason sufficiently likely, without having been so advised, to divine the possibility that the shooting may have involved self defense, and that they will be disposed to look carefully for exculpatory evidence?

Does your "experience" give you a basis for believing that responding officers would be able to somehow identify who among those at the scene were witnesses, and to prevent their disappearance?

Does your experience tell you about the problems a defendant will face in preventing a defense of justification in the absence of favorable evidence and witnesses?

Did you bother to read and understand Frank Ettin's explanation of those subjects?

Did you read and study the link provided in Post #9, in which attorney Andrew Branca explains the reasons why your ides might end up destroying someone's defense? Here is a relevant excerpt:

You’ve called 911 to request law enforcement to your location (or the location of the defensive use of force, in the event you’ve fled the scene for safety), and eventually they’ll arrive. Hopefully, quickly, too often not so quickly. In any case, sooner or later they’ll be on scene, walking up, seeing a body on the ground, you standing nearby, and asking what’s happened. Their job is to secure the scene for evidence and witnesses (and safety, of course), and await for the investigative officers to arrive.

Is this where you literally say nothing but “I will say nothing until I’ve spoken to my attorney?” I suggest that’s not the best of strategies for a number of reasons.

First of all, it’s not conduct consistent with innocence, but rather with consciousness of guilt. Of course, if we assume you’ve already called 911 and spoken with the dispatcher as described then it’s already on record that you were attacked, were in fear for your life, and used defensive force. If so, no harm in telling the same to the responding officers.

Second, you will definitely want to be cooperative and compliant with responding officers in terms of securing the scene and their safety. If your pistol was involved, it should be back in its holster, not in your hand (obviously). Further, don’t make the police search for it but verbally advise them as to it’s location—VERBALLY, do not use your hands to gesture to your gun (obviously).

Third, you’ll want to make sure that you advise the responding officers of any evidence that might otherwise be overlooked. If your attacker came at you with a knife, and that knife fell into a bush when he fell to your shot, you definitely want to make sure the police know to look for the knife in that bush. If the knife is overlooked and not secured as evidence, for trial purposes it really doesn’t exist—and then what’s your justification for the use of deadly force in self-defense? [Emphasis added]

The dynamics are the same with witnesses. Attackers often act when there are few if any witnesses around. If we assume there were a handful of witnesses, we can usually be pretty confident that by the time the police actually arrive a crowd will have begun to collect. Now those five witnesses are buried in a crowd of perhaps 50. Are you really going to force the police to interview 50 witnesses and hope they get to the key 5 before the crowd disperses? If your 5 witnesses disappear from the scene, the prospects of later identifying and locating them becomes very slight indeed. And as the good guy, you WANT witnesses. If you did things right those witnesses are overwhelmingly likely to buttress your claim of self-defense. [Emphasis added]

Again, however, you need to avoid logorrhea. Outside of sharing with responding officers what you’ve already shared with 911, pointing out exculpatory evidence, and pointing out exculpatory witnesses (and requesting medical attention—but that’s a subject for another post), it’s time to notify them that you’ll be happy to cooperate further after you’ve had a chance to consult with legal counsel. From that point on you are far more likely to say something that can be made to appear to undermine your claim of self-defense than to help it.

There should be a sticky on the right to remain silent and to have an attorney. Im not sure why so many dont know these basic rights.

Well, for your information, there is in fact a sticky on this subject in the ST&T sub forum on The High Road.

It contains the gist of what Frank Ettin provided here in Post #5.

I would imagine that the TFL Staff would be amenable to putting the same thing here in the form of a sticky.

 

[johnelmore]

One should have an understanding of opinions expressed on the internet in that they are just opinions. For example, I have used products and traveled to places which had great reviews, but I could not come to the same opinion as the other internet reviewers.

I never stated I was an expert or that I had this greater knowledge of the world. I truthfully told you my experience in these matters which is life experience. Consider me just another opinionater along with the rest.

Police officers are trained to get an answer out of you. They know what "buttons to push" and how far they can go. Anything you say can be twisted against you. They have done this many times before. Therefore, if an officer knocked on my door right now then I would tell them they need to talk to my lawyer and have a nice day. If anyone wants to do differently they can, but thats what I would do. Thats my personal opinion and what I would do.

 

[Frank Ettin]

One should have an understanding of opinions expressed on the internet in that they are just opinions....

A lot of things are opinions. But not all opinions are equal. My doctor's opinion about my health is much more significant than my mechanic's. If that weren't the case I'd need another doctor.

A lot of opinions expressed on the Internet or elsewhere by folks without any real qualifications for expressing those opinions aren't worth bothering with. On the other hand, the opinions of people with relevant education, training and experience regarding the subjects they are opining on can be well worth noting.

So I'll pay attention to the opinions of people like Massad Ayoob or Andrew Branca or Spats McGee on matters within the scope of their expertise. But I won't pay attention to the opinions of someone who hasn't established that there's any reason to believe that he know what he's talking about.