Evidence against me

Scrapiron45 said:

We are offered warned against making careless comments on a public forum because they could be used against you in a court of law.
My question is, what else in my daily life could be seen in the same light? Could the fact that I regularly take defensive shooting classes or that I practice weekly be construed as to looking for a fight? What about using siloulette targets or owning multiple weapons? Having 2 or 3 Glocks stashed around and an AR in the bedroom vs a shotgun and a revolver? How about just being a member of this forum?
To those of you familiar with cases involving defensive shootings are these justified concerns or is my wife just watching too many crime shows?

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Good question. I just figure 99% of the "this could be used against you in court" comments are enjoying the fear without real conscious (or legal) thought. Without any comments advocating illegal or violent activity towards specific groups (school shootings, racist manifestos, etc.) I highly doubt THR makes it into court.

It seems just as likely that comments advocating safety would be used in your defense.

I've sat in on a few cases that involved shooting in what was purported to be self defense.
I have never personally saw this brought up, but I admittedly have a small sample size to go on.

Many of these questions and others such as handloads for self defense and carrying a powerful gun such as 10mm or .44 magnum, are just that, questions because we don't have examples of cases where these arguments are brought up (there is a small sample where more powerful than is the custom defense guns are used).
That is not to say it hasn't been brought up. The opinions we read are from appellate courts. Cases in the trial phase are not published and thus it is not feasible for us to know these things without extensive research.

All I can say is that from someone with nearly 10 years experience in the criminal law field, I haven't personally seen it. There has never been a question of how often someone practiced or how they practiced, or whether they took classes in self defense tactics or not.
But I do live in the south, where juries are sympathetic to self defense situations. I work on the defense side of things and I would spin that as a positive, that my client was educating himself so as to efficiently and safely protect himself and his family.
I can't speak as to how that would go over in a more liberal setting.

Everything you do or say can be used against you. How effective that will be will depend on how objectively reasonable and explainable what you do and say is and whether you and your legal defense team can convincingly explain it to a judge and/or jury.

I probably shouldn't leave this at the scene of a crime.

IANAL, I'm a retired LEO who had followed a lot of litigation, and who has been responsible for incorporating the outcomes of litigation into my agency's policies (a very large agency - 10,000 sworn).

The first key point to remember is that both the civil and criminal justice systems are designed to keep irrelevant evidence out of the courtroom. For example, suppose you have a 1911 with shaved hammer hooks and 2 pound trigger. If you intentionally shoot a person where deadly force is justified, there really isn't much possibility of that evidence coming into court. It's not gonna be relevant to any issue being tried. But if you are "covering" a compliant suspect with the same weapon and you have an unintended discharge, then those modifications are gonna be highly relevant.

The best advice here is to ensure your conduct does not allow for any adverse information to become relevant.

Very few legitimate cases of self-defense ultimately go to a criminal trial. Your greatest concern is the civil trial. There is a "Filtering" process to determine what evidence is ultimately presented to the trier of fact (the judge in a bench trial, or the jury in a jury trial). Start off by getting a good attorney to represent you, and to be involved before the "Filtering" starts. My below comments reflect observations from California state courts. You may find differences in other jurisdictions.

The first step is that you're going to be deposed by the plaintiff's attorney and/or be served with "Request for Admissions." This is about the only "Free for All" in the process. The plaintiff pretty much gets to go on a "Fishing Expedition" to see what potential evidence is there. You need your attorney fully engaged at this point. Once the record is created, you gotta live with it. The plaintiff's attorney is gonna ask about any modifications to your weapon, and other potentially "juicy" areas of information. With very few exceptions, you're gonna have to tell them.

Your attorney gets to to the same with the plaintiff.

Once all the "information" is on the table, the attorneys start the "Filtering" process. They narrow down the evidence to what is relevant. You should expect both sided to file "Motions in Limine." Those motions are to prevent the other side from introducing irrelevant evidence. If you have the 1911 in my first example, plan on the judge granting a motion in limine to prevent evidence of your trigger modifications from coming into court. If you have the 1911 in my second example, plan on the motion being denied.

The plaintiff's attorney is gonna do the same, plan on them filing a motion in limine to prevent your attorney from bringing up the perp's 42 prior felony convictions.

The key point is that battle over evidence is pretty much gonna be over before the civil trial actually starts. If either of the parties are represented by an insuror, you can pretty much plan on the case being settled once the evidentiary rulings are made.

But my best advice is to never conduct your affairs in a way that is calculated to defeat any particular trial strategy. Conduct your affairs such that your actions are clearly reasonable, and always be prepared to give a clear articulation of why you did what you did.

Civil vs criminal aspects are certainly two quite different ball games. Frankly, I've thought for years that it would be in everyone's (less civil trial lawyers of course!) best interest if we could manage to scuttle that difference and apply the same rules of evidence to civil law that govern criminal process.

Civil process as it's evolved, is at it's best a life support structure for the legal profession...............the simple truth is that if one has a case he should be able to prove it........to the exclusion of any reasonable doubt and most surely not on mere 'weight or preponderance' of evidence.

And to those of you bar members hereon, please, just what is so wrong or unfair about having to PROVE your case? And don't give me the simply fiscal loss doesn't match jail time call, you can most assuredly destroy one's life as easily with an asset attack as you might with a criminal finding. Maybe more so.

Scrapiron45 said:

We are offered warned against making careless comments on a public forum because they could be used against you in a court of law.
My question is, what else in my daily life could be seen in the same light? Could the fact that I regularly take defensive shooting classes or that I practice weekly be construed as to looking for a fight? What about using siloulette targets or owning multiple weapons? Having 2 or 3 Glocks stashed around and an AR in the bedroom vs a shotgun and a revolver? How about just being a member of this forum?
To those of you familiar with cases involving defensive shootings are these justified concerns or is my wife just watching too many crime shows?

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Don’t share personal information online.
If you don’t give out your username, then nobody else will know anything.
Less is always more (better)

Miranda says, "ANYTHING you say or do, CAN be used against you."


Media reports, "man arrested, had an ARSENAL (1 pistol, 1 rifle and 100 ROUNDS OF AMMO!)."

Frank Ettin said:

Also, law enforcement and prosecutors know all about social media and have been learning to use it effectively. See this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:

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Yes sir they do.
I'm in a small town (30k ish) and I see social media posts come up a lot, especially in juvenile court. But I've seen it pop up more than a few times in adult criminal court as well.
People just don't get that what you put out there is there forever and can certainly bite you in the derriere.

From my conclusions of a career in Federal law enforcement and reading the results of both penal and civil trials.

In a self defense shooting the prosecution (usually state) has to prove no exemptions - self defense - apply for the crime of murder. A solid self-defense defense - witnesses, the 'scene' of occurrence, statement of deceased heard by witnesses and so on, autopsy evidence - is presumably shown as the self-defense exemption to a charge of murder or manslaughter.

However in the increasingly popular wrongful death, civil lawsuit, the state is not there to show conduct in violation of law, but a prosecutor is there to convince the jury of the evil intent of the survivor. (And get a cut of the monetary penalty paid to the survivors). That trial is where all the comments made in public show up, the legend on a tee-shirt, one's church affiliation and anything else can be brought up to convince a jury the respondent should be assessed a large amount of money to assuage the pain and anguish of the plaintiff(s). One can be found not guilty of murder by reason of self defense in a penal trial, but ordered to pay a substantial penalty in civil court due to the jury being convinced of the 'bad attitude' of the defender.

An attorney might word this somewhat differently, but it happens about the same.

Spats McGee said:

Nothing's wrong with someone having to prove a case. One side or the other has to do that in every case that goes to trial.

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Correct in the exact wording but without the distinction of the differing levels of proof. In all the states I am aware, the burden of proof for the government is greater proving a criminal case than for a plaintiff charging a tort claim against another person. Usually a matter of conclusive proof regarding the language of the criminal law against a majority opinion in the mind of the jury about a 'feeling' of impropriety.
Oddly enough, even of not assessed a penalty in civil court, the respondent has to pay his attorney for the attorney's services and the idea of 'loser pays' is heretical in this legal system.

My only thoughts on this topic are that nothing in a criminal trial is predictable; the intelligence, common sense and skills of trial lawyers varies so widely, unless one has an awful lot of money to spend on a defense attorney, it's just like putting money on the roulette wheel. Is the prosecution ready to bring out the Big Gun because yours is a high-profile trial with a lot of political ramifications (i.e., Rittenhouse)? Is Mas Ayoob (or someone similarly qualified) free to travel to your state to testify as an expert witness? Castle Doctrine? Duty to retreat? Oh, and if you're a person small of stature, person with a disability, a female or a senior citizen, is your lawyer competent enough to make the jury understand the concept of disparity of force? And if you get a jury trial, do you draw an experience judge and do you live in a mostly conservative county, or someplace like King County, Washington? I've attended more'n a handful of jury trials in my state (and have testified) and have been appalled at the quality of attorneys on either side. Anything can happen.

One usual statement in such discussion is the one should 'show me' a case. Here's one. It is not an SD case but the principle is there. https://www.greenvilleonline.com/st...nce-cross-examinations-murder-sc/69853621007/

If you read the report and watch the videos, the prosecution has made a point of displaying firearms that have little to do with the killings as they were not used. We know from research simulations that presentation of weapons can have a negative impact on jurors. One family member seeing a video of his gun room with a rack of many long arms, said he must be nuts. Not a gun person.

In the real world, this is a standard tactic. In the Bernhard Goetz trial, many years ago, much was made by the prosecution of Goetz wearing a 'tactical holster' and using hollow points. While he was acquitted on the shootings, the jury did discuss those aspects in evaluating his SD claim as to his mental state but it didn't lead to his conviction. BUT it did, according to after trial statements, influence the conviction on gun charges and later the judge in sentencing on those gun carry charges.

Someone usually says that my lawyer will quickly convince the jury that such things are not important or object. In the Murdaugh case, his lawyer did object but the judge found the display of not relevant guns to be relevant. Also, some jurors in simulations can come away from your objections with just remembering the 'bad' presentation even more OR decide that since you made a big stink about it, then it must be really true!

One will also argue that you can hire an expert to downplay such but the expert must be allowed. Not a sure thing. Also, unless you have arrangements with such before hand, they can range from $1000 to $10000 a day or trial.

I think the main take-away here is that if you're involved in a defensive shooting, DON'T make it easier for the other side in either a criminal or civil proceeding by running your mouth off, LAWYER UP ASAP. There's plenty of good info out there from people like Ayoob and others on how to protect yourself in the aftermath. IMHO one important thing is not to provide the opposition with anything they can use against you that they wouldn't find on their own - and I DON'T mean tampering with evidence! I mean things like NOT having bumper stickers that say "I Don't Call 911." A competent lawyer should be able to advise you on what not to say and what not to provide so you don't make things easier for your opponent in a court proceeding, and some of the details may vary by jurisdiction.

@Old Dog, you make a lot of very valid points.
Skill levels and intelligence of attorneys certainly varies.
In a trial, some things are predictable, but some things definitely are not.
One other variant is the jury itself. I live in a pretty conservative place and I've seen juries be sympathetic to a person in a self defense situation. But the bottom line is your fate is about to be in the hands of 12 people that you know absolutely nothing about, other than what's printed on their jury bio, which is only 1 page most of the time.

The only thing predictable about a jury is that it's unpredictable. Just when you think you know what they're going to do, they do a 180.

I just keep thinking of those high profile cases that turned a little into a circus: Rittenhouse including good Xbox screen name and that cop with the custom "you're effed" dust cover.

Guess it depends on how hard and deep they dig and what angle they want.

Read and appreciated most of the information on this topic. On a personal note... most of the behavior on the part of an accused armed citizen that's problematic occurs well before the shooting incident.... Govern your conduct appropriately - particularly your statements (verbal in front of witnesses or in writing -in any forum or format..).

Continuing, in my case I was accused of previously threatening someone that I did indeed later end up killing on the job a few months later... Fortunately, it wasn't me that made the statement, and thank heavens the officer that did make the statement came forward during the investigation.... My agency had arrested the young man a few months before his death in an unrelated case -still a juvenile, he was arrested at that time for extortion and other charges. and had to be chased down on foot to complete the arrest.. One of the officers then pointed out to him that he could run - but might not be able to outrun a bullet.... That statement was made in front of the individual's mom in an effort to get him to quit the things he'd been doing... That young offender was an adult when I encountered him months later.

In short, as a practical matter, it's most inconvenient to end up shooting anyone you might have previously threatened.. Just one more thing to consider for anyone considering going armed to defend yourself or your family...

I've seen and heard of things that really get twisted in their favor.even made up .If they really wish to (get you) they will and you'll spend a fortune proving you're innocent. That's just how I see things as of late.