Never talk to the police? ( refresher)

Twinsig said:
...Good remedial training....
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Not really -- at least when dealing with self defense.

I'm 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.


Let's see what another lawyer, Andrew Branca, has to say on the issue:

  1. (emphasis in original)
    ...The “say nothing until lawyer” advice is based on the reality that anything you say to police can and may be used against you. It’s certainly true that the only 100% certain way to avoid saying anything incriminating is to say nothing at all.

    Rarely mentioned, however, is that what you DON’T say can also be used against you. Sure, you have a Constitutional right to remain silent, and once you’ve asserted that right your silence cannot be used against you.

    But this privilege applies post-arrest. Your silence before then can certainly be used by the Prosecution to infer guilt—an innocent person would have mentioned self-defense at the time, they’ll argue, and the fact that you did not do so suggests you only fabricated your story of self-defense after the fact to avoid criminal liability....
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  2. (emphasis in original)
    The 911 Call: Be the Complainant, Not the Respondent

    A huge problem for Michael Dunn in his claim of self-defense was the considerable consciousness of guilt evidence he provided to prosecutors. In particular, his flight from the scene well beyond the need to secure his safety and his failure to ever report the shooting to law enforcement before he was arrested at gun point on a murder warrant. This conduct was far more consistent with the behavior of someone who believed he’d “gotten away with it,” than it was with the behavior who believed they’d acted in lawful self-defense. This was especially damaging given that the only evidence of self-defense came from Dunn’s own testimony in court....
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  3. (emphasis in original)
    ...Let’s assume for purposes of this post, then, that you buy into the value of being the complainant rather than the respondent, and you therefore are the first to call 911.

    Taking the “say nothing until I talk to my lawyer” advice literally, exactly what are you going to say when the dispatcher answers your call? “I will say nothing until I’ve spoken to my attorney.” Really? When they ask “what’s your emergency?” surely that statement can’t be your reply. Rather, you’ll necessarily provide some description of what’s happened and the location to which you’re asking law enforcement (and ambulance) be sent.

    So, you’re ALREADY speaking with the police. And as long as you’re doing so, my advice is to get your claim of self-defense into the evidentiary record as soon as possible. You were attacked, you were in fear for your life, you were forced to act in self-defense. Of course, all of this will be recorded, and that recording will be admissible in court. As a result, the jury will get to hear your claim of self-defense in your own words and voice, with all the stress of the moment that such an event necessarily brings with it....
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The Unique Nature of a Self Defense Plea

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:
...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....
...

... Often, the defendant will need to testify in order to establish his subjective belief about the threat and need to respond defensively. This can be done through circumstantial evidence, but it is difficult....
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I was, initially, going to close this, as a Drive-by (I think it qualifies), but I took the time (45min) to watch the linked video, and found it both informative, and somewhat entertaining. Not anything I didn't already know, but a bit fun.

Frank's lengthy and accurate explanation of the SIGNIFICANT difference when you claim self defense is important to understand, so I'm not closing this one.

In short, and OTHER than selfdefense, not talking to the police gives the impression you have something to hide / are guilty.

Talking to the police gives them evidence you have something to hide / are guilty.

One of the best, humorous treatments of this subject is in the movie My Cousin Vinny. Provided you can get past the profane "wise guy" language, its a great example of how, in court, what you say can be turned into something you didn't say, or mean.

One perfect example is where the Sheriff is interviewing Ralph Maccio's character, who accidently shoplifted a can of tuna, and doesn't realize he's being interviewed about a murder.

When the Sheriff asks him, "at what point did you shoot the clerk?" His response is a natural conversational one, he replies, in a disbelieving and confused tone of voice "I shot the clerk???...." and repeats it with even more questioning tone of voice "I shot the clerk???" then, as the reality of the situation sinks in, he says "Wait!! whoa! ....what???" but, by then, its too late.

Later on, in court, on the stand, testifying, the Sheriff is asked about the interview and he reads the statement from his notes, in a flat, declarative tone of voice "and then the suspect said "I shot the clerk...... I shot the clerk."

(note the period, vs the questionmark??? The Sheriff was not lying, but his answer didn't convey the actual truth of the situation.
And, that's what the "not talking to the police" thing is all about. If you don't say anything, you give them nothing to use as evidence. IF you do sat anything, then they can (and have) been able to use that against you.

Remember the warning about your rights says "anything you say may be used against you in a court of law" That much is totally honest.

Another point to remember, one not covered in the video, but important to realize nonetheless is that in court the only person under oath to tell the truth is the one testifying on the stand. The Prosecutor is not under that oath, and neither is your defense attorney. They can say all kinds of BS, or leave out important, even vital facts, in order to lead the jury to the conclusions they desire.

And HOW you say things in court /to the police matters too. Conversational phrases where everyone knows what you mean can mean something else entirely in court.

One example (explained to me by a lawyer) is the difference between "minute" and "moment". A moment is a brief period of time, but a minute is 60 full seconds.

say for example, you tell the cops, "I stopped at the stop sign, waited a minute, looked both ways and then went on.." Normal, and the kind of thing one hears in conversation all the time.

But, what the court "hears" is "I stopped for 60 seconds, looked both ways, and then went on".

All fine and good and makes no difference, right? Wrong!
You make that statement, and then the prosecutor produces a witness who was in the car behind you, and they testify that you did NOT wait a full 60 seconds before pulling out, and they know that because a 30second raido spot began playing when they stopped and you pulled out before it finished.

Congratulations, you have now just been found to have LIED to the cops. Your credibility (about everything) is now about zero. You may escape actual perjury charges, but you can't escape the fact that the jury now knows (and has proof) that you LIED!!!!

What you say, matters. The words you choose, MATTER. And they matter in ways most people never think of. The only way to avoid giving the police any rope to hang you with (or, at the least trip you up) is to not say anything at all. and that is the point of the video, and the concept.

As Frank pointed out, this does NOT WORK when you are claiming self defense.
 
I might add a cautionary warning about follow-up interviews and get everyone's advice.

A close acquaintance was involved in a self-defense shooting during a burglary of their primary residence. Initially they made a statement similar to what Frank has recommended and the police told them there was nothing to worry about. Two days later they were asked to come in for a follow-up interview. At this interview a representative of the District Attorney's office was there and they ended up leaving in handcuffs charged with murder. Although the charges were eventually reduced to a misdemeanor their lives were hell for the next year.

So, I would think that during any subsequent interviews you should be represented by a criminal defense attorney. Yes, no, maybe?
 
At this interview a representative of the District Attorney's office was there....
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This is a point mentioned by the police officer in the "rebuttal" portion of the linked video. The cops ARE legally able to LIE TO YOU during an investigation.

Its a rather common tactic to tell the suspect "nah, you won't get in trouble" or "we're not going to charge you for ....." in order to get them to admit to doing something, and once they do, then they can be charged...

The other possibility is that the cop was honest telling you "you've got nothing to worry about.." but that cop ISN'T the one who makes the decision about bringing charges. That cop might recommend no charges be brought, but its not his call and if the DA's office ignores his recommendation, there's nothing he can do about that.

I used to love watching the show LAW & ORDER, I thought it was cool the way the cops did their thing, and the DAs nd attorneys did theirs and made deals etc. I thought (for a little while) cool this is how the system works...

And then I thought about how they treated guns, and the information they gave about them, and found numerous mistakes and some outright lies.

And upon reflection I decided that, if they're lying about guns and gun data, (which I knew they were) then they are probably lying about the law and the way the system works, as well.

After that moment, the show wasn't very entertaining to me anymore...

Point is, lots of people get their ideas from watching TV and movies, and dealing with the police and our court system in the real world is somewhat similar but vastly different.

Kind of like the earth and the moon. Both places have gravity, but beyond that, things are quite different. ;)
 
So, I would think that during any subsequent interviews you should be represented by a criminal defense attorney. Yes, no, maybe?
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Police officers involved in shootings often call their attorney during such an instance. So should you. Any formal subsequent interview where you sit down should be done with your attorney present.

This is a point mentioned by the police officer in the "rebuttal" portion of the linked video. The cops ARE legally able to LIE TO YOU during an investigation.
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While this is true, in the sense that case law allows officers to “match wits” in an interview, I personally know that his is honestly a tactic that very often blows up in your face and is bad practice all around. To the tune of I don’t know of any officer that uses it routinely. Admittedly it’s not to prevent an ethical violation but more for lack of effectiveness. Case in point, I interviewed a guy who we knew had broken into some cars one time. I was in the interview room for about an hour, and a co-worker thought he would “help” by coming in and throwing a card with fingerprints on the table. He said “you may as well tell it all, we have fingerprints that I bet are yours found at the scene.” I showed my coworker out and covered the card up with my binder, largely ignoring it. I knew that my coworker had simply put his own fingerprints on a card and was bluffing the suspect. It was rather obvious. I also knew that the guy had gloves in his pocket when we picked him up, and suspected that he wore them while he was doing the deed. Even if that wasnt the case, there are dozens of fingerprints on almost any car that hasn’t just been washed well. The guy I was interviewing looked at my coworker (who is no longer with us) like he was stupid. We then gave each other a knowing look and continued our talk.

On top of this, a jury doesn’t want to hear that the cops lied to get a confession. If the jury gets wind of it, it complicates things greatly.

It’s entirely plausible, likely even, that the cops who interviewed BarryLee’s acquaintance at the scene were being 100% honest. In their opinion, at the time, it may have appeared to be a good shoot. Then the district attorney later has radically different ideas in an extended interview. The District Attorney wins when it comes to charging decisions. They can indict without law enforcement even being involved. While I’m not saying it’s almost assured that the cops were not involved in that gambit, it’s likely that they were being sincere at the scene and someone else had different plans later.

Either way, the takeaway is have a lawyer during a formal interview. And yes at the scene you need to at least get basic facts out. As Frank described in detail, when involved in a SD shooting you basically admit to all of the elements of a crime. Your one defense at that point is a justification defense. The burden of proof is not on the state to prove your justification for you. They do have the burden to accurately disclose facts that point to that justification to the defense. They don’t have the burden to “look” for those facts, just to disclose them when they are found. Getting the loose story out while on scene “I was robbed, the guy pulled a knife, I was scared, and I shot him. That clerk in the store was there when it happened he probably saw something” can go a long way toward shaping an investigation so that those facts are found and disclosed.
 
Thanks for this info guys, and thanks 44 for not closing. And although it DID seem like a drive-by, these type responses are what I was attempting to achieve. Having studied many of Mr Myoob's teachings, which contradict Mr Duane in the specific scenarios he covered, I believe further review/study would certainly be beneficial.
Thank you all for the time and effort on this complex subject matter. In fact, I've printed the entire thread for my "manual". I find it much easier to read/study printed material as opposed to reading from a screen. Could be an age thing..?
I really appreciate the instruction!
Carry on..
 
This topic can't be handled succinctly. The video speaks an excellent general rule -- when any representative of the state's authority is speaking with you, they do so for their benefit, not yours.

Frank's explanation is for the extra-ordinary instance in which you will admit the bulk of the facts pertaining to the charge, but your counsel will offer a defense at trial.

5Whiskey said:
While this is true, in the sense that case law allows officers to “match wits” in an interview, I personally know that [dishonesty is] a tactic that very often blows up in your face and is bad practice all around.
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I agree with you. Once you toss away your integrity in an interaction, you lose a lot. I've also met too many POs, prosecutors, lawyers and judges who don't see it that way. (I hope that doesn't foster cynicism; many of each of those I've met are very fine people, especially considering what they do all day.)

5Whiskey said:
It’s entirely plausible, likely even, that the cops who interviewed BarryLee’s acquaintance at the scene were being 100% honest. In their opinion, at the time, it may have appeared to be a good shoot. Then the district attorney later has radically different ideas in an extended interview. The District Attorney wins when it comes to charging decisions. They can indict without law enforcement even being involved. While I’m not saying it’s almost assured that the cops were not involved in that gambit, it’s likely that they were being sincere at the scene and someone else had different plans later.
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There's an additional wrinkle to this. The POs who arrive don't have a final call on whether you are prosecuted, but they may be like a gatekeeper in a medical group, the party whose initial impression determines who you see next. Would we be shocked that a PO might take a reluctance to speak freely as a sign of guilt, even if the PO knows that he has a CBA that lets him stay silent if he were to shoot someone?

Maybe it's ideal to say "I was sure he was about to kill me. Kindly understand that I want to speak with my attorney now.", and leave it at that. It would be kind of extraordinary to have the presence of mind to say only that and zip it.
 
The problem with all of this EXCELLENT advice is that it's never one size fits all.

I've been involved with two self defense incidents (barely). In the first someone started shooting at the end of my parking lot. I don't know if I ever even saw the guy who was shooting. I took cover, drew my gun and called the police. The cops showed up and took my statement and I told them I had drawn my gun because I felt the situation warranted it. The cop told me "Don't worry about it." and I never heard another word.

The second two guys tried to rob me and I drew on them and they took off. I didn't call the police.

My point is, in both incidents there were no other witnesses to point out to the cops. There wasn't anyone to take the bad guy's gun and walk away.

Had a shooting occurred it would have been my word against theirs and I would have had to hope the physical evidence supported my story.
 
The second two guys tried to rob me and I drew on them and they took off. I didn't call the police.
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I, and probably some of the rest of us will say you should have called the police, anyway.

In that regard, its the polar opposite of "not talking to the cops".

Not talking to the cops (and especially refusing to talk to the cops - absent your lawyer) can give the impression of having something to hide, aka, guilt....because of the general feeling that good guys don't "hide".

Not calling the police does the same thing. Slightly different mechanism, but similar result. If you are involved in some confrontation, win, lose, or draw, CALL THE POLICE! and, be the FIRST one to call the police.

Again, its a general feeling thing, but most folks will figure "bad guys don't call the cops". And, for a lot of the time, that is true. But, sometimes, they DO call the cops, and of course LIE about what happened in order to get you in trouble.

If the first call the cops get is from you, and you tell them "I'm Mr Moonglum, I live at XYZ address and I was just assaulted by two guys who tried to rob me, and they ran off when I drew my legal handgun" that starts things on the right foot.

But, if the first call they get, or the ONLY call they get is "Me and jimmy was just walking down the street and this guy came at us and pulled a gun, so we ran away"...that is going to start matters off on a different foot, one where you are the SUSPECT at the outset.

Getting your side of the story (the truth) on the record, and on the record FIRST goes a long way. You might want your attorney present when you talk to the cops, and give your statement/make a complaint, but get it on the record first (with a 911 call) that YOU are the injured, complaining party.

It could still come down to your word against theirs, always expect that and be prepared accordingly, just consider what is most likely to result when the cops get a complaint from someone who seems to be Mr LawAbding Citizen
(FIRST) vs. getting a complaint call from a couple of what looks like "hoodrats".....

Or, even a call from some well intentioned witness who only saw you pull a gun on someone(s) and doesn't know (and so cannot tell the police) the rest of the story.
 
44 AMP said:
I, and probably some of the rest of us will say you should have called the police, anyway.
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Shoulda, woulda, coulda. I didn't.

Thanks for totally missing my point though. The point I'm trying to make is there may not be any witness to point out.
 
Thanks for totally missing my point though. The point I'm trying to make is there may not be any witness to point out.
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I got your point. However, with the rampant expansion of surveillance systems I think today we should all accept it as a given that, even if you don't see any witnesses, you're probably on somebody's Ring camera no matter where you go or what you do.
 
Moonglum said:
Shoulda, woulda, coulda. I didn't.
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I'm not going to second guess your decision at the time. You had a weapon and didn't have to fire it, so it has a pretty happy ending as these things go.

I will note that a race to the telephone can be the determining factor in how an episode is treated. I was killing some time with a girl a long time ago. Before she was a judge, as is so often true, she had worked as a prosecutor. A case that still bothered her was one in which a man would pick up a female hitchhiker, rape her, then call 911 to report that he had been mugged by a prostitute. She said he had done this several times and was essentially untouchable because they'd never get a jury to believe that it would be the rapist who would call 911.

These matters rest so far outside our normal experience that it is difficult to have confidence in our ordinary intuition.
 
Aguila Blanca said:
I got your point. However, with the rampant expansion of surveillance systems I think today we should all accept it as a given that, even if you don't see any witnesses, you're probably on somebody's Ring camera no matter where you go or what you do.
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Let me say this in a different way.

Whether or not I agree with you the incident is past. I might do something different if I had it to do again but I can't undo what I already did.
 
Moonglum said:
Let me say this in a different way.

Whether or not I agree with you the incident is past. I might do something different if I had it to do again but I can't undo what I already did.
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+1 Moonglum.

I wonder many times what could have happened if I had shot 2 burglars I caught in the 70's, and am glad I didn't have to shoot them to gain their compliance.
The cop who responded and took them into custody, replied to one of them who wanted me arrested for pointing a shotgun at them, “you know he could have legally killed both of you.”

Did I talk to the police then, absolutely, probably too much for today. But today, I probably wouldn't say much beyond what has been noted above. The world has changed, I'm too young to die but too old to get my butt kicked, and don't want to have to deal with a civil much less criminal suit.
 
a big drunk was saying he was going to beat up a older man i know and started at him, at about 10-12 feet the man pull his legal pistol and only pointed it at the ground and was arressed for banishing. as several others were close and backed up his story, the charge went any.
 
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