Silence

[KyJim]

I haven't been asked but I'll jump in anyway. I'm a lawyer with 30 years experience, the last eight years solely in criminal law. I'm a prosecutor. I'm licensed in Kentucky, the federal district courts in my state, the 6th Circuit Court of Appeals, the 4th Circuit Court of Appeals, and the U.S. Supreme Court. Frank's assessment is "spot on."

I have seen more than one instance where a claim of self-defense never surfaced until at or just before trial and I've never seen it succeed. It''s extremely difficult to mount a claim of self-defense without the defendant taking the stand. You can bet the prosecutor is going to make it known through questioning that the self-defense claim is something new and that the defendant has concocted it and tailored his/her story to fit what the prosecution has turned over in discovery.

While I am not giving advice, I can tell you what I would do if I had to justify a shooting. I would give the basic version and then affirmatively assert my right to remain silent and talk with my attorney. Assuming my attorney agreed, I would then give a thorough statement later. That's pretty much what Frank said.

 

[Edward429451]

What can potentially get you in more trouble (whether they can use it against you or not is irrelevant) is to clam up every time you have an encounter with the police. They'll find a way to get their reasonable suspicion, to investigate further, because bad guys clam up with police. Good guys cooperate, and answer questions.

Bottom line, if you're mature/responsible enough to carry a gun, then you should be mature/responsible enough to get proper training in ALL aspects (before the fight, during the fight, after the fight) and know how to handle yourself in those situation. If you have to clam up every time you confront a cop because you're afraid of saying something stupid, I question your responsibility/maturity of being able to carry.

That might be reaching just a little bit. May I suggest a happy medium between Frank's and the OP's post? Rather than totally clam up, cooperate to a reasonable extent, but consider that in this situation, one may under a whole lot of stress and go rattling off at the mouth from the adreneline, and everything you say can and WILL be used against you. With the political climate what it is towards guns nowadays, they may want convict you to make you an example to discourage such practice among others and further blacken us gun owners image.

So talk but not too much. If you find yourself rattled, display your willingness to cooperate yet dodge probing questions by statements such as Oh my God, I don't believe that he actually forced me to shoot him! I am so upset, I never thought this would happen to me!!And so forth. This may derail some of trick questions designed to get you to incriminate yourself.

 

[johnelmore]

Whats the difference between saying something right now and waiting an hour or several hours for your attorney to arrive? In a court of law how can the fact that you wanted an attorney be used against you?

Training is always a good thing but its not a solution which will stop things from going wrong. Lots of well trained people get themselves into bad situations all the time. I think the solution is to have a responsive well known criminal defense attorney at the ready who you have consulted with previously. Any person who uses firearms for work or leisure should always have one at the ready. Anytime you get a hint you might be in trouble the first call should be to that attorney. I think there are quite a few people out there (we wont get into specific names) who would have been better off calling an attorney from the start then dealing with it in their own way or in a way prescribed on an internet message forum.

 

[Frank Ettin]

Whats the difference between saying something right now and waiting an hour or several hours for your attorney to arrive?...

That was addressed in post 9 and 21. To expand a little --

1. When the police arrive they will probably see something like a person on the ground bleeding from bullet hole in him and you with or near a gun.
   
   
2. The first impression will be that the guy bleeding is the victim and you are the assailant. There might not be anything immediately apparent to contradict that impression. The investigation will begin with that in the minds of the investigating officers -- unless you say something to perhaps suggest that impression is not really correct.
   
   
3. Also evidence that could be useful to you might get missed or witnesses might leave before they've been identified as possible witnesses.
   
   
4. In many jurisdictions, standard protocol in an officer involved shooting is to wait a day or two before requiring the officer to provide a detailed statement, BUT is is usually still expected to provide a brief preliminary statement to (1) help guide the investigation; (2) preserve evidence; (3) identify witnesses; and (4) identify any possible accomplices.

...Anytime you get a hint you might be in trouble the first call should be to that attorney...

If you are involved in a use of force incident and expect to claim self defense, your first call needs to be 911. A delay in reporting the event will not look good for you.

 

[Gaerek]

Just to make it clear, IANAL.

Whats the difference between saying something right now and waiting an hour or several hours for your attorney to arrive?

A lot, if you're basically saying you won't say anything without an attorney. A lot of it has been mentioned here already, but I'll give a summary.

-You need to establish that you were the victim (cop comes on scene, sees someone lying in a pool of blood, and another with a gun...who do you think they're going to think the victim is right away? Who do you think is going to be the victim in their initial report?)
-You need to point out witnesses that can attest to your being the victim
-You need to point out evidence that might be missed (as an example, "I think one of my attackers shell casings went down the storm drain")
-You will need to call 911...are you going to call and not say something? Or were you suggesting not calling? If you were going to call, what would you say? You NEED to call 911.

In a court of law how can the fact that you wanted an attorney be used against you?

They can't. But they can use the report they wrote saying you were uncooperative, and that you wouldn't tell them what happened, so they assumed the person lying in the blood was the victim. Although it might not be much, it is something they can use against you, and make your case tougher.

Training is always a good thing but its not a solution which will stop things from going wrong.

Then I think you misunderstand the purpose of training. It's not to "stop things from going wrong" as you put it. It's to help mitigate any possible problems that might go wrong. Cops are trained to shoot bad guys. But look at how well they did on the Empire State building shooter. Their training didn't stop them from doing something bad, but it likely stopped them from doing something far worse.

Training can help you know what to say after a shooting. It's really not that tough. Don't get chatty. It's simple:

"I was attacked and I feared for my life, so I defended myself."
"I will sign the complaint"
"Those people in that house over there saw what happened"
"I stood here when I was attacked. My attacker was over there and came at me with a weapon."
"I fully intent to cooperate officer, however, at this point I do not wish to speak without my lawyer present."

With those few things, you've established you are the victim. You've shown cooperation with the police. You weren't too verbose, and when you told them everything they needed at that time, you lawyered up, but making sure they knew you would be more than willing to cooperate. There's really nothing there that can be used against you. Whereas there's a lot that can be used against you if you don't say anything. It's not just about the "well they can't use my wish to have an attorney against me." That's true, but there's a lot of things they still can use against you if you clam up.

Lots of well trained people get themselves into bad situations all the time.

Again, misunderstanding the point of training.

I think the solution is to have a responsive well known criminal defense attorney at the ready who you have consulted with previously. Any person who uses firearms for work or leisure should always have one at the ready.

I completely agree. So, in the time it takes your attorney to show up, what are you planning to do?

Anytime you get a hint you might be in trouble the first call should be to that attorney.

No, your first call should be to 911. Whether it's right or wrong, the winner of the race to call 911 gets to be the complainant. Where as the loser gets to be the bad guy. Besides, it shows a willingness to work with LE and concern for your fellow human (even if he was the attacker) who you may have shot. When criminals commit crimes they think they're going to get caught with, who do you think they call first? Their attorney. You call 911 first...then you can call your attorney.

I think there are quite a few people out there (we wont get into specific names) who would have been better off calling an attorney from the start then dealing with it in their own way or in a way prescribed on an internet message forum.

Without specifics, I can't really comment on this. Though, in general, I disagree with this statement (I'd like to know specifically what you're talking about, however). This could be a case of, "My friend was trapped by his seatbelt in his car and was killed, so now I won't wear a seatbelt." I agree, you will want to call an attorney. But 911 comes first, always. Then you call your attorney.

I will add this, although I am not a lawyer, my information comes from a variety of sources. Some here on this forum, some books I've read (Mas Ayoob comes to mind) instructors who are police and ex-police, as well as my attorney, and not a single one has ever suggested to remain completely silent. They all state, basically what I wrote above. Be cooperative, don't talk to much, give the very basics, establish yourself as the victim, point out witnesses and possible missed evidence, then lawyer up.

 

[ChuckS]

No, your first call should be to 911.

This I can agree with. But...

Whether it's right or wrong, the winner of the race to call 911 gets to be the complainant. Where as the loser gets to be the bad guy.

This is where we disagree. The justice system simply does not like any citizen use of guns (even for self defense) and the user of a gun will always get extreme scrutiny. Making the first 911 call 'may' help, even slightly, which may be a benefit, eventually, but will never automatically confer victim or ‘complainant’ status to the caller. It is not unusual for the 911 operator to errantly transfer the (mis)information to LEO.

I could relate three local instances where the 911 caller got the "short end of the stick" (all involving ATV-trespass and one also included a gun charge) and need I mention George Zimmerman. He made the 911 call before the 'incident' and he is still on trial.

Follow the advice by Frank Ettin above and get your lawyer ASAP.

(1) help guide the investigation; (2) preserve evidence; (3) identify witnesses; and (4) identify any possible accomplices.

....then zip your lips.

 

[Gaerek]

This is where we disagree. The justice system simply does not like any citizen use of guns (even for self defense) and the user of a gun will always get extreme scrutiny. Making the first 911 call 'may' help, even slightly, which may be a benefit, eventually, but will never automatically confer victim or ‘complainant’ status to the caller. It is not unusual for the 911 operator to errantly transfer the (mis)information to LEO.

My information comes from Massad Ayoob. He talks about it in the Gun Digest Book of Concealed Carry. He even shows a case where the assailant got to the phone first, and was listed as "complainant" (aka victim) on the police report. It ended in a long drawn out legal battle. I believe the man avoided jail, but he had to prove he was the victim, even when he had the original police report and investigation working against him. Not to mention, the "victim" (aka the person who called first) got to play the victim card through the entirety of the trial. All of the investigation was based on that. This is simply the way it works. Call 911 first, get listed as the complainant.

I never once said that calling first exonerates you and makes you innocent in the eyes of the law. It helps to establish your position as victim. It means that the responding officer(s) list you as the complainant. It means that the investigation goes forward with the assumption that you're the victim (until proven differently).

Speaking of Zimmerman, he WAS listed as the complainant on the form. He was let go. It was only after the DA got a hold of the case that they decided to press charges. The responding officers, and investigators believed it was a pretty clear cut case of self defense. In his case, calling 911 first didn't help. But imagine if he hadn't gotten to the phone first? He would be in even deeper.

 

[Fishing_Cabin]

As a result of this case my standard advice has changed from being passively silent to being actively silent meaning that when the police come tell them you wish to exercise your right to stay silent instead of saying nothing.

I didn't see it mentioned anywhere previously, but I think the case you are referring to is Berghuis v. Thompkins which went up to the US Supreme Court, which basically said silence alone is not enough to invoke your right to remain silent, in that a person must unambiguously invoke their right. Also, beyond the simple fact of invoking your right to remain silent, there are also some state laws in different states that require such things as identifying oneself to law enforcement in certain situations, which requires a person to communicate to law enforcement in a limited fashion.

Frank is spot on with:

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."

The only change I would make is to not list a time period for full cooperation because your lawyer may be early, or out of town for the weekend, etc.

 

[armoredman]

I am not a lawyer, not a paralegal, or anything else along those lines, but...

The common line you see about this one is, "Well, I'd rather be judged by twelve than carried by six!"

I WILL be the guy you meet if you base your defense on this theory. I am a Corrections Officer. If this is your whole and total legal plan, may I suggest two items for additional reading, CRIPA, (Constitutional Rights for Incarcerated Persons Act), and PREA, (Prison Rape Elimination Act). They might be handy to know before you discover just how bad the food really is here.

 

[dieselbeef]

following this thread..

 

[Spats McGee]

The race to 911

FWIW and IMNSHO, the first call a SD shooter needs to make is to 911. The second can be to a lawyer or significant other (IF you have had the "here's-the-list-of-people-to-call-if-I-ever-have-to-shoot-someone" discussion). There are significant advantages to being the first party to call 911:
1) The first one to call it in gets to "frame the scene" for investigators. The first to call in may be able to establish himself as the complainant or the victim. That begins to lay the groundwork for SD as a legal defense, and starts the investigation off on the right track. It's not a magic wand, and it won't automatically save your hiney, but it's better than being the second person to call 911. By the same token, the first caller gets to declare who the bad guy was (subject to later investigations, of course).
2) If the initial assailant survives, the SD shooter needs to request an ambulance. From the "jury perceptions" perspective, an SD shooter does not want the jury thinking that he simply stood over the assailant, waiting for him to die.
3) It gives the shooter the opportunity to make some very important statements to the police. For example, I don't really like the idea of the police showing up on a scene in which I have a gun in my hand and a body with bullet holes laying in front of me. The very reasonable assumption that the police will make will be that I shot the guy. I'm much more comfortable with that scenario if I've had the opportunity to call 911 and tell the dispatcher things like:

a) That I've been attacked;
b) That I had to shoot someone (& need an ambulance for him);
c) That I have a CHCL; and
d) What I'm wearing.​

On that last one, I want to "plant the seed" for the officers that when they get to the scene, the guy with the gun isn't automatically a bad guy. I want them to know that the guy wearing (for example) jeans, sport coat and a fedora is the guy calling for help, and that he has a CHCL.

As others have noted, it's also important that the shooter cooperate, at least to some small degree, with investigators. Pointing out witnesses, the location of evidence, whether there were other assailants who fled, things like that. Otherwise, those things may never be discovered by LE. If the SD shooter then testifies about them, the question may arise "why didn't you tell the police?" Then it begins to look like the shooter invented whatever story he tells, in an attempt to make SD hold up.

 

[johnelmore]

When I said the "first call" I really meant the first call while in detention or custody, but some people may have thought I meant something different. This is a good example of how words can be interpreted and understood differently depending upon the person and the situation.

I do agree that in some situations a limited amount of speech will be beneficial, however, I dont believe the majority of people will be able to deploy these conversational strategies against experienced professionals effectively. So my advice to less sophisticated individuals who I know are not effective speakers is to stay silent, call an attorney or ask for one.

 

[Frank Ettin]

When I said the "first call" I really meant the first call while in detention or custody, but some people may have thought I meant something different....

Phooey. What you wrote exactly in post 23 was:

...Anytime you get a hint you might be in trouble the first call should be to that attorney....

The first call is the first call, and if having shot someone, even if you believe it was in self defense, is not a hint you might be in trouble, you're not paying attention. So whatever you might have meant, you said that your very first call after a self defense incident should be to your lawyer. If you meant something else, you didn't say what you now claim you meant.

We can't read your mind. You need to say exactly what you mean.

...This is a good example of how words can be interpreted and understood differently depending upon the person and the situation...

No, this is a good example of how if you don't express your thoughts clearly and with precision, people will understand what you actual said and not what you thought you said.

...So my advice to less sophisticated individuals who I know are not effective speakers is to stay silent,...

Thank you for your advice.

In the meantime, three experience lawyers have offered their suggestions. People may now choose who to listen to.

 

[44 AMP]

A person whose social skills aren't good enough to manage an adult conversation probably shouldn't be carrying a gun in social situations.

A good theory, probably pretty accurate. But what we are talking about here is not a regular adult conversation. It's talking to the police, concerning a shooting. Not at all the same. Words have meanings, and meanings to the police, prosecutors and the courts are NOT the same as meanings in ordinary "adult conversations".

This was illustrated to me through a conversation with a lawyer, and he used this example; "I stopped at the stop sign, waited a minute, looked both ways, then pulled out...."

In lawyerspeak, this means, "I stopped at the stop sign, waited 60 seconds, looked both ways, then pulled out..."

Now, if it comes out that you did NOT wait a FULL 60 SECONDS, your creditability has just been shot to hell, and EVERYTHING you say is suspect.

The way we speak in ordinary conversation is not necessarily the best thing to tell the police investigators. This is why you need to speak to an attorney. Not because you don't want to co-operate, but because you don't want to (accidently) send the investigation down a false path.

We have the right to remain silent, but few of us have the ability to remain silent, especially with the post shooting stress reaction, and the helpful police, encouraging you to talk.

yes, we do have a moral obligation to assist with the investigation, right up to the time we are placed under arrest. It is better remain silent and not to say the wrong thing than to give them a case against you for talking to them the same thoughtless way we so often talk to our friends and coworkers.

What you say, and how you say it can be something entirely different between when you say it, and when it gets read into court testimony. For a fine example of this, I recommend watching the movie "My Cousin Vinney". Focus on the two scenes, the interview with the sherriff, and later the same sherriff's testimony on the stand. Note the different meaning to the phrase "I shot the clerk".

its a good movie, and contains a number of other good lessons as well. Just be prepared to have to endure the profanity, unless you find the edited for TV version...

 

[Frank Ettin]

...yes, we do have a moral obligation to assist with the investigation...

It goes beyond the question of a moral obligation. Handling the aftermath well and saying only the correct things can improve your chances for a good outcome.

As I wrote in post 12:

...it's better to say nothing than to say the wrong things.

But it's better yet to learn to say the right things. Part of learning and building one's skills and understanding involves going beyond the minimum sufficient response to find the best response.