Matthew Temkin
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Mas Ayoob on "saying nothing" to police after a SD incident
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Matthew Temkin
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Amen.
Phaedrus/69
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Isn't answering questions about how many rounds you fired, asked in the moments while your adrenaline is still pumping, one of things that you're extremely likely to be wrong about? I'm not an expert at all so I'm just asking; if I remember shooting twice but the cops find ten spent cases from my sidearm, isn't it a near-certainty that the "lie" will be used against me later?
I wouldn't try to get into details like that. There's not a guarantee that getting a detail like that wrong will hurt you, but it certainly could be used against you.
I watched a hunting video some time ago where multiple hunters were shooting at a sounder of hogs. After the action, one shooter claimed to have fired only once. The video showed he not only fired twice, he killed a hog with each shot.
I suspect the stress of a self-defense situation is a bit higher than the stress of hunting. If someone has trouble counting to 2 in a hunting situation, completely forgetting half of their shots fired and that they actually brought down an animal with a shot they claim they didn't fire, I can't imagine that things would be more clear when someone was shooting back at them too.
I watched a hunting video some time ago where multiple hunters were shooting at a sounder of hogs. After the action, one shooter claimed to have fired only once. The video showed he not only fired twice, he killed a hog with each shot.
I suspect the stress of a self-defense situation is a bit higher than the stress of hunting. If someone has trouble counting to 2 in a hunting situation, completely forgetting half of their shots fired and that they actually brought down an animal with a shot they claim they didn't fire, I can't imagine that things would be more clear when someone was shooting back at them too.
RickD427
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I don't think that anyone in a post shooting statement correctly identified the number of rounds fired. At a scene, we'll combine the information about round count from your memory and an exam of the weapon (which may not be immediate depending on the crime scene evaluation). Of much greater importance is your explanation of what direction the rounds were fired. We'll do a close exam downrange to see if any unintended targets were struck, but we can't do that if we don't know where where "downrange" is.
It's not uncommon for a defensive shooter to report "Three" rounds fired, and that he started off with a full magazine of fifteen rounds. We'll check the mag and find two unfired rounds remaining. That leaves a difference of 10 rounds. The miscounting of rounds is a very common occurrence under conditions of extreme fear, and no, it's not evidence of lying on your part. Don't fall into that trap. A "Lie" is an incorrect statement made with an intent to deceive. Don't confuse it with an incorrect statement. The causation of your incorrect statement can also work two ways, experts in psychology tell us that it's difficult to count rounds under conditions of extreme fear, you exhibited an inability to accurately count rounds, under conditions likely to cause fear, therefore you were acting under conditions of extreme fear - see where this is going?
Law schools have a required class called "Trial Advocacy." The syllabus is to teach their students how to best present the available evidence in a way most favorable to their clients. That's different from presenting the evidence in an objective and balanced way, but it also helps explain why there is a "Versus" in the caption of most civil and all criminal trials. Don't try to outsmart the advocate. Direct your efforts at showing the arbiter of your case that your actions were reasonable for the circumstance.
I've seen a situation where even a correct statement was interpreted as a lie. There's no way for someone to know for sure if a mistake is intentional or unintentional without climbing into someone's head.
Yes, your attorney can explain why your statements at the scene don't match the evidence, but he won't do it for free--he may even need to bring in an expert witness who also won't work for free, and it's anyone's guess as to whether the explanation will resonate with the jury or not.
I'm not saying that you shouldn't say anything, some things need to be said, but the more you say, the more opportunities you are giving yourself to make a mistake.
I think that kind of thing is to be expected.
If a suspect is asked by investigators later and in the presence of counsel how many rounds he remembers having fired, I do not think his attorney would likely advise him to not answer on the grounds that his memory may be faulty.
The issue that is likely to be more crucial is the timing--did he fire n rounds in rapid succession, or n-1 quickly and then another one.
JERRY
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do NOT try to explain how many rounds you fired. the first time I fired in self defense I said "2" and was wrong. the second time I fired in self defense I said "I think" 2 and was right only after they counted the remaining ammo. in all of my use of force training since then with sim rounds I was right maybe 50% of the time.
RickD427
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Jerry,
So how can you reconcile your above advice with the "Public Safety Statement" requirement emanating from New York v Quarles?
RickD427
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You hit an important point - How much to say immediately following a defensive shooting. Saying nothing is clearly a wrong answer, but so too is saying too much. IMHO, it's best only to immediately discuss the "Public Safety Statement" type information and to politely, but firmly, decline to discuss non-urgent details until you've had type to recover from the trauma and confer with an attorney. If there's any "push back" to that approach from LEO's at the scene, simply ask what they do when involved in a shooting.
But the point of my first post in this thread remains. The event is not over when the final shot is fired. When involved in a defensive shooting, you have responsibility for the scene management until properly relieved. Far too many so-called "Tactical Trainers" focus only on the pistolcraft aspect of a defensive use-of-force and pretty much completely ignore the scene management aspects. It's important to prepare for both. You can't predict exactly how a shooting event is going to be choreographed, and for the same reasons, you can't make an advance choice of the statements that you will make. It's far more important to understand the dynamics involved (both tactical and legal) and to respond to each appropriately as the unique facts of the particular shooting dictate.
You're also correct about "climbing into someone's head". That the job of the prosecutor, or Grand Jury (depending on jurisdiction) when making a filing decision, and of the arbiter in the civil case. You're also correct that it will be expensive, but that expense is invoiced when you used the force. I've never seen a justified shooting go to a criminal trial, and reports of such are pretty rare (and usually show some collateral bad acts on the part of the victim). You should plan on a civil suit resulting from any use of force, and be prepared for it.
JERRY
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you'll have to give me the cliff note version of that.
RickD427
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I did. Please see Point #4 in Post #82 for the "Cliff's Note" version of Quarles.
JERRY
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How are you confusing Mr. Quarles' seemingly obvious criminal acts to a private citizen using their firearm in self defense?
RickD427
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Jerry,
Perhaps you would do better to read the entire decision. There no confusion about Mr. Quarles "seemingly obvious criminal acts." The court's ruling was that the public right to safety trumped Mr. Quarle's right to silence. That holding is irrespective of whether the subject is involved in criminal activity or not.
Matthew Temkin
Member
Absolutely.
As a 20 year court officer I have sat through hundreds of felony hearings and trials.
The truth is that many things—-# of rounds fired, exact distances, number of opponents, etc, etc, are not easily recalled under stress.
Let’s say that you tell the police that you fired 5 rounds but in fact fired 9.
Later on should you testify be prepared for the DA to ask, “So Mr. Smith. Now you say that in fact 9 rounds were fired.
And in fact you were not 5 feet from the victim as you reported to police on the scene but actually were 12 feet away..
So, Mr Smith....Please inform the jury if you were lying then or are lying now....”
This is not theory but things that I have witnessed dozens of times.
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scaatylobo
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THE BEST education about how and what to say or do,ONLY comes from having sat through a few of these hearings.
As a cop I sat through so many I lost count,AND having had to sit in "THE" chair and answer questions as to what I did,what I said,and Who did what to whom, -------- it will scare the living Cr-P out of you.
Especially if its your first and only time !.
If you are smart = you will read & heed those that have been & done.
If not,hope you have VERY,VERY deep pockets.
JERRY
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I still stand by the advice that if you are in a self defense shooting, tell the cops bare minimum simple things like: my name is..., he/she is the one(s) who attacked me, there is his/her weapon, and those are the witnesses, and that you will cooperate more after speaking with a lawyer. nothing else. you will best served by stating that you feel ill and need to go to the hospital.
no how many shots, no where you were standing, no what you were doing, no if you were drinking, no what did he/she say, no what did you say, no do you have a ccw permit, no nothing. you cannot be made to say more, if you are inferring that.
bdickens
Member
More internet lore that will hurt more than help....
Matthew Temkin
Member
NYPD cops who are involved in on duty shootings have a 48 hour time period where they do not have to talk to ANYONE.
They are usually transported to a hospital for medical evaluation, chest pains or tinnitus.
So please explain how emulating this will hurt more than help?
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bdickens
Member
When the EMTs arrive, check you out and find that there's nothing wrong, you have now established yourself as a liar.
It should not be necessary to explain how it could hurt should you deprive yourself of the opportunity to introduce essential exculpatory evidence.
Matthew Temkin
Member
What makes you think there is exculpatory evidence to point out?
Or that it is, in fact, exculpatory evidence?
Or that your brain will be working in a rationale manner?
Or that your rehearsed script won’t come out as idiotic mindless babble?
Since you are so cocksure if yourself on this subject I am still waiting for you to state your experience in either law enforcement or the legal system.
Have you ever been in an armed encounter, with or without shots being fired?
Or an actual street altercation?
I’m just asking because you are contradicting so many here who have extensive backgrounds in these areas of expertise.
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Matthew Temkin
Member
Negative.
Unless you refuse further attention they will transport you to a hospital after making sure you are stable.
If you do not think that stress or anxiety can cause physical symptoms then you have never been exposed to either.
Getting medical attention after any kind of traumatic experience is SOP.
As an court officer I had to pretty much verbally force some people ( crime victims, relatives of defendants who were just sentenced to prison, minor sip and fall victims, etc), into a waiting ambulance.
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If there isn't, or if you saw no evidence, it would be a moot point.
But if there are, do you recommend not pointing them out at the scene ?
I went though that a dozen years ago. Search for it. Better yet, iworry about the substance of the discussion. Limit it to real self defense cases.
Ya think so?
The points I have been making are consistent with the positions of the best known self defense experts, including key representatives of the several firms that provide prepaid legal services for SD, attorneys who have participated in some of the most publicized SD trials (Larry Hickey, Zimmerman, etc., to name two).
Persons whose experience is largely limited to other kinds of cases, and they are in the overwhelming majority, cannot really speak authoritatively on the nuances of the self defense case.
The experts I have mentioned are in complete agreement on not answering questions on, and on not volunteering information on, the event. They are in compete agreement on the importance of mentioning what is necessary to avoid impairing a viable legal defense of self defense.
I know of no professionals with extensive relevant experience who responsibly recommend otherwise,
One important distinction: it is obvious that the latter pertains to incidents that occur in the out of doors, where there may be witnesses who are likely to depart, and where small bits of evidence can roll way, blow away, or otherwise be taken.
If a defensive use of force incident occurs in the upstairs hallway of a residence, the advice regarding what to point out timely would obviously not apply. The advice regarding not making a statement at the scene would remain largely valid.
Matthew Temkin
Member
Quite a few people on this thread with professional and relevant experience disagree with you and those folks whom you are referring to.
In the end we all will have to decide who’s advice we will follow.
Especially those who have no personal, professional or relevant knowledge/experience of their own.
In the end we all will have to decide who’s advice we will follow.
Especially those who have no personal, professional or relevant knowledge/experience of their own.
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