After a shooting -- now what?

Discussion in 'Legal' started by Dannix, Dec 21, 2009.

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  1. Dannix

    Dannix Member

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    As the original poster...

    As the OP, I'm going to ask an additional question:

    Say the home defense situation took place on the 1st floor in the kitchen. Is the entire floor the "crime scene" and the police have blank-check access to it all, including your daughters room clear on the other end of the house? What about a second/third/etc. floor?

    Thanks :)
     
  2. Frank Ettin

    Frank Ettin Moderator Staff Member

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    It's not quite as simple as that.

    Self defense is what's called an "affirmative defense." If you are asserting one of these defenses you must effectively admit the act. You are, however, saying that you aren't guilty because you were legally entitled to do what you did, e. g., you were legally justified in shooting this person who attacked and would have killed you if you had not used lethal force to stop him.

    The principal evidence supporting your affirmative defense is within your control (for example, your testimony about how you were attacked). And since this evidence is within your control, the you raise (plead) your affirmative defense and put forward the evidence to support it.

    If you have met your burden of producing evidence supporting, prima facie, your claim of justification, it is now the prosecutor's burden of proof. The prosecutor must now convince the jury that the defendant's homicide was not justified, i. e., that the defendant's act, which he has admitted, did not meet the legal standard for self defense with lethal force. The prosecution's burden of proof in rebuttal to the defendant's prima facie case will vary from jurisdiction to jurisdiction. In some jurisdictions the prosecutor may have to prove that beyond a reasonable doubt. BUT in that may not be a great a burden as it sounds.

    The defendant has admitted committing an act of extreme violence on another human being. This is something that most people, probably including most of the jurors, naturally find repugnant. The defendant stands before the jury bearing the mark of Cain. It may not necessarily be easy for the defendant to convince a jury that his act of violence was justified. It may well be easier for the prosecutor to convince the jury that it was not.

    See post 67.


     
  3. Dannix

    Dannix Member

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    ^ah, I missed that post. Thanks. :)
     
  4. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Not to worry, Dannix. It's been a long thread.

    Merry Christmas, all.
     
  5. sgt gray

    sgt gray Member

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    I've got a question but let me start out by saying I don't know the first thing about interrogations, self defense claims, or legal advice.

    Would it be such a bad idea to just answer whatever questions the police have with complete truthfulness and without trying to tell them what you think they should know about the incident? If you are stressed out, like fiddletown says many people are after defending themselves, ask for a couple minutes to calm down. Then give a statement. And contact your lawyer as soon as possible.

    I have never been in a self defense situation but from the interactions I have had with police it always seems to turn out better when you fully cooperate than when you don't. I know that if I was on a jury it would be easier for me to believe someone that did just that rather than someone that needed an entire 24 hours, with help from a lawyer, to "figure out" what just happened.
     
    Last edited: Dec 25, 2009
  6. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Sgt Gray,

    I'll get back with some answers late tomorrow. I'm away for Christmas now, and a detailed responce will need to wait until I'm back.

    Merry Christmas.
     
  7. Marty Hayes

    Marty Hayes Member

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    The problem with giving detailed answers to questions, or othewise talking too much to the police is not in what you say, perhaps. but in what the cops remember what you said, and write down in their little notebooks. They write their reports from their lttle notebooks, and then testify by "refreshing their memory" from the reports.

    It is better say as little as possible, except to make sure the cops knew you were attacked, that you felt your life was in danger, that you want medical assistance in if you have been injured, and that you intent to dooperate fully, but you would like your attorney present before answering any more questions. If there is evidence on the scene that they might not find, or witnesses they don't know about, point that out to them too.
     
  8. Kleanbore

    Kleanbore Moderator Staff Member

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    That's a good thing to remember for anyone who believes that he will automatically be perceived as being the "good guy" when the dust settles. It's also a good thing for those who think that a "castle law" is a license to kill.

    It would seem to me that some kinds of cases may fall at one end of the scale. For example, if the occupied home has clearly been forcibly breeched by a man and a deadly weapon, perhaps with a criminal record and an addiction problem, who had no business being there; if there had been no prior connection of any kind between the homeowner and the intruder (arguments, business deals, gambling; romantic triangles, etc.); if there has been nothing to cast any doubt on the good character of the homeowner; and if forensic evidence and/or earwitness accounts fail to indicate any appearance that excessive force was used or that the intruder had decided to leave before being shot; it would seem to me that the prosecutor would have little reason to pursue a conviction, and little likelihood of getting one.

    Change more and more of those conditions and things would likely change progressively toward the disadvantage of the homeowner.

    At the other end, but still assuming a justified shooting, might be a shooting that occurred in a place where both persons had a legal right to be; at least some of the witnesses, though perhaps with questionable motives, relate stories that do not support the defender's story; there were no supportive witnesses, or if there were, they cannot be found and none choose to come forward; the defender (perhaps the defendant now) cannot produce key pieces of the evidence he says existed, such as an assailant's weapon, or evidence that other assailants contributing to a disparity of force were even present; the forensic evidence is unclear as to the distance at which the shooting took place, and indicates at least that there is some question regarding whether excessive force was used; and there was anything in the defender's past that indicates a possible propensity toward violence, vigilantism, etc. Under such circumstances, the prosecutor may believe that there is a clear case against justifiability, and it would seem to me that winning it would not be at all out of the question.

    And anything in between would probably be in between, to state the obvious.

    Now off to holiday activities. Everyone stay safe and well.
     
  9. mljdeckard

    mljdeckard Member

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    sgt gray-

    If you have MI on your post, ask some of your 35Ms about interrogation. If you start talking, you're done. Always.

    The police have one objective. To gather evidence of crimes. Exonerating people who are innocent is a far lesser priority. Your Miranda rights apply, and think of it as a promise, whether you have had them read to you or not. EVERYTHING you say can and WILL be used against you in a court of law. This is the only reason police question people in the first place. If you tell a cop you know why you were speeding, he's friendly because he has just sold you the ticket, greatly reducing the likelihood that you will show up to court and fight it. Of COURSE he's glad and friendly when you do that. This isn't a traffic ticket. The cop will not likely get irritated if you tell him you're not talking without a lawyer present. If he does, it's only because you have just refused to make his job easier. Does he come to your work and do your job for you? You have absolutely no obligation to do his for him.

    Remember that in a jury, there is a strict set of rules regulation what you do or don't hear and why. The court will place the benefit of every doubt in favor of protecting the defendant's right against self-incrimination. You are thinking that you are itching to hear his side of the story, and wonder why he didn't talk to the police right away, but remember, this is going to be months after the fact, (if not longer,) and how long it took the defendant to talk to the police may not be mentioned at all. The prosecution has nothing to gain in pointing out that the defendant correctly asserted his rights. You won't hear anything from the defendant at all. The defendant only takes the stand on Law & Order hail Mary plays.
     
  10. AZ_Rebel

    AZ_Rebel Member

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    Yes, it is a bad idea... a VERY bad idea. If you have just gone through the trauma of shooting another human being, how do you KNOW what you are going to say? And how do you KNOW that the nice policeman will write down exactly what you are saying and exactly what you mean?
    You don't, so the best thing is to say nothing - other then your name and who you are. Say nothing about the incident, what you did, what the assailant did, what you thought etc. Confer with your lawyer and start to prepare your defense immediately - it may not be needed but you can't take back what you have said or what the police wrote down what they thought you said.
    Be polite, be courteous but keep your mouth shut.
     
  11. Frank Ettin

    Frank Ettin Moderator Staff Member

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    It looks like Marty Hayes, Kleanbore and mljdeckard have pretty much covered the ground. But you might also want to reflect on the fact that in law enforcement circles there are some respected opinions that as standard procedure in officer involved shooting the officer should not be expected to give a detailed account for several hours or more following the event.

    See this Force Science Research Center article in at PoliceOne.com (http://www.policeone.com/investigations/articles/132625-How-to-ensure-fair-neutral-and-fact-finding-officer-involved-shooting-investigations/) and note point 12:

    "....In most circumstances, it is best for the officers to ...wait for 24-48 hours after the shooting to give a statement. 'You will not be doing yourself, the DA, the community, your agency or the involved officer any favors by insisting on interviewing the officer right away if he or she is too physically wound up, fatigued or upset to provide a coherent, thorough and accurate statement,' ..."

    See also this International Association Of Chiefs of Police "Officer-Involved Shooting Guidelines" (http://theiacp.org/psych_services_section/pdfs/Psych-OfficerInvolvedShooting.pdf) and note point 5 on page 1:

    "...5. Ideally, the officer should be provided with some recovery time before detailed interviewing begins. This can range from a few hours to overnight. Officers who have been afforded this opportunity are likely to provide a more coherent and accurate statements....."
     
  12. pax

    pax Member

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    No, that's a very bad idea. It's not that "telling the truth" is a bad idea -- it's that you quite literally do not know what the truth is immediately after a life threatening event, and you quite literally no way of knowing what kind of tricks your adrenalin-soaked mind has played on you during the event. Nor is a few moments enough to recover those memories (see fiddletown's post above for recommendations from the Force Science Institute re recovery times prior to giving statements).

    For example, in David Klinger's excellent book Into the Kill Zone: a cop's eye view of deadly force, an officer who was involved in a shooting writes the following:

    It's tempting to think that's a quirky and personal response to sudden violence and the adrenal chemicals, but it's not. It's not a bit unusual.

    Alexis Artwohl, PhD, who has made a lifetime study of these types of reactions, presented some of her findings at an AELE Lethal & Less Lethal Force Workshop in 2008. A synopsis is available online at http://www.aele.org/law/2008FPJUN/wb-19.pdf

    In Artwohl's 2008 study, she found at over 50% of interviewees experienced memory loss for part of the incident, 46% experienced memory loss for part of their own behavior during the incident, and 21% "saw, heard, or experienced something that didn’t really happen" during their events. Those numbers are significant and shocking.

    Your best bet is to follow fiddletown's advice in post #17:

    pax
     
  13. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Dave Grossman, in On Combat (PPCT Research Publications, 2004) cites Dr. Artwohl:

    "...one in five officers in a gunfight remember something that did not happen. Here's a classic example...

    "Two police officers are in a gunfight...One said later that he saw his partner get shot. 'I see the bullets rip through my partners body, he said.'...When the battle is over, he goes to his partner's aid, but discovers he is not hurt at all...." (Grossman, pg. 104)

    Grossman also reports:

    "I was training and assisting mental health professionals during the aftermath of one major school shooting. One of the psychologists told me about a teacher who was upset because he had not used towels to pack a shooting victim's wounds. ...One of the other teachers said to him, 'But you did use the towels. Don't you remember?'...." (Grossman, pg. 105)
     
  14. Mr.Davis

    Mr.Davis Member

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    fiddletown,

    Thank you for your incredibly valuable contributions. No offense intended to others who have taken the time to contribute to this thread, but I will take the advice of a qualified lawyer over the advice of a law enforcement officer when it comes to handling the aftermath of a self-defense shooting.

    Perhaps the most compelling piece of information shared in this thread is the notion that the truth can't help you if a police officer misremembers or misrecords the information on their report. What you tell the police can be used against you - it can't be used for you. That's why fiddletown and others have suggested pointing out witnesses and evidence, then SHUTTING YOUR TRAP - there's literally nothing else you can do for yourself at that time.

    On the other hand, if you start rambling a mile a minute at the crime scene, and the officers are scribbling key words as fast as possible, their recollection of the bloody event may be skewed and incomplete eight hours later when they finally sit down to fill out their official report of what you said and did that fateful night. Through no intention of their own, those officers may have been put in a position of casting doubt on your claim of lawful self defense, and will be reviewing those same flawed notes when they're about to take the stand in the criminal or civil case against you.

    The more words you say, the more chances the responding officers have to write down the wrong thing, misinterpret what you say, or mentally speculate about your motives and real actions, which can color their report later. Do yourself and the officers a favor and share only concise information about your fear for your life, the location of evidence and witnesses, and then shut your trap.
     
  15. 2/505

    2/505 Member

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    I’m new to this site but I think I have info here that all can use…
    If, for some reason you cannot open this PDF file, Copy and Paste this (below info) as "Gill Sans MT Condensed" font... Font size #8... (Don’t adjust spacing as it should all fall into place if using font as stated) Print it out, fold at dotted line and it will be the size of a credit card. Carry with you at all times. Keep a copy in a word document so you can print it out any time the old one needs replacement. Pray you never have to use your weapon, but always be ready... Practice!




    SELF-DEFENSE GUIDELINE CARD
    If you have been involved in a shooting incident, the following steps should be taken but only
    after you are completely sure there is no longer a threat.
    1. Secure the weapon the assailant used. Check yourself for injuries. Make a complete check of the
    scene, however, don’t tamper with evidence. If the person shot is no longer a threat, try to help him.
    Do not talk to him or use abusive language. Don’t touch the assailant if he appears to be dead.
    Don’t let anyone else handle any evidence.
    2. Call the police as soon as possible. Tell them what has taken place, and your location. Ask for
    emergency medical assistance. Don’t give too many details of the incident over the phone. Put your
    weapon away, and keep it out of sight. Innocent people have been shot by the police because they
    were holding weapons when the officers arrived. Try to spot them first and attract them in a
    non-threatening manner. At first the police may treat you like a suspect, especially if you have a
    weapon. Do as you are told. Do not question or argue with them.
    3. Call your lawyer. Make no statements to the police or anyone else, until your attorney is present.
    He should meet you at the scene if possible. Tell him exactly what happened and let him do the
    talking for you. If you must meet the police by yourself, be sure not to make any statements.

    -----------------------------------------------------------------------------------------------------------------------------

    Explain to the police politely, but firmly, that you don’t want to talk until your attorney arrives.
    Keep in mind that anything you say can and will be used against you.
    4. When the paramedics arrive get medical treatment for shock for yourself and any other person
    involved whether physically injured or not.
    5. Stay away from the news media. Never talk or make any sort of statement to them. Let your
    attorney make any statements for you. Remember, the news media has NO authority.
    You do not have to talk to them.
    6. Legal actions: You are justified in using lethal force only if you “feared for your life” or that of
    another person. Don’t apologize for defending yourself. Avoid statements such as “I’m sorry I had to
    shoot” “I regret the incident happened” Such statements are equated with feeling of guilt. You are
    remorseful therefore your actions were inappropriate. Such statements can cost you latter on in a
    court of law.
    7. Stress: Persons involved in shooting incidents face a great amount of stress. Psychological problems
    sometimes appear, and even physical ones such as sleeplessness, headaches, diarrhea and even heart
    problems. These problems are common and affect even trained law enforcement officers. If you
    encounter any of these problems, seek professional help.
     
  16. chieftain

    chieftain Member

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    First make sure you know YOUR STATE and in many cases local LAWS THAT APPLY. No two states are the same. Close, but hardly ever the same.

    As my attorney, who was also a personal friend, told me, "If you feel the need to run at the mouth, say no more than:" " Name and address, it was self defense, I need medical care, (I have enough existing major chronic medical problems these days, so that would be a natural.) I wish to exercise my right to remain silent, I would like my/an attorney.

    Or as he would politely state, "****". No one has ever been convicted of or for not talking to the Police. Do it politely. No need to be offensive, behave properly, follow instructions appropriately. Expect to be arrested.

    My attorney reminded me what every LEO does in an officer involved shooting. Exactly what the professionals do/say "****". They will not say a word until their representative/lawyer is there. Our advantage we don't ever HAVE to talk to the police, follow your attorney's advice. Don't forget to choose a good and competent attorney too.

    In Arizona now we have an additional advantage. In essence if we declare self Defense, the police/prosecutor have to PROVE otherwise or criminal intent. I do not have to "PROVE" self defense.

    Most importantly, remember every LEO you will contact, is a educated, trained and in most cases, an experienced interrogator. Once you start talking, they own you.

    AS to Ayoob and his desire for you to direct the investigation at the scene when officers arrive, I have not heard of any convictions related to "lost" evidence or witnesses. Don't doubt it has happened, but it is rare enough to say it ain't going to happen. Probability folks, not possibility. This is the exact type behavior that leads folks to start talking, and telling the investigators to much. Ask any criminal attorney.

    Some folks think you look guilty because you don't talk. BULL ****! That is exactly what any experienced and trained law officer will do in an OIS.

    Name, address is required, if you feel a need to meddle in something that you frankly know nothing about say, "It was self defense, I feel I may need medical attention, and POLITELY and respectfully state you wish to exercise your right ot silent, and your/an attorney.

    It ain't rocket science. Don't complicate it. I remember in the Corps if captured, give name, rank, service number and date of birth. End conversation. Do the civilian equivalent.

    As a close friend of mine who was a judge used to say, 90% of everyone in prison, talked their way in. Many even guilty, would not have been convicted if they had not done themselves in with their own statements. ****.

    Go figure.

    Fred
     
  17. Kleanbore

    Kleanbore Moderator Staff Member

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    ...whether he has any experience in, or any in-depth knowledge of, self defense cases or any other cases or any other kinds of cases involving an affirmative defense.

    If the answer is no, do not rely on his advice on this subject.

    If the answer is yes, ask whether his experience has been limited to rather clear-cut cases such as those involving home invasions or armed robberies in business establishments.

    If the answer is yes, do not rely on his advice on this subject.

    Rather, you may prefer to listen to the advice of the experts in this field. I'm repeating myself here, but the advice of Mas Ayoob, Marty Hayes, and Kathy Jackson, explained so well in Fiddletown's several posts, is not only the advice of experts, but it has most certainly been vetted before publication by criminal defense attorneys.

    Mas Ayoob instructs defense attorneys in his classes, by the way.
     
  18. Frank Ettin

    Frank Ettin Moderator Staff Member

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    That statement is not accurate. You must do more than simply declare that you were defending yourself.

    Under 13-205A, Arizona Revised Statutes, "...If evidence of justification pursuant to chapter 4 of this title is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification...."

    Thus it is not sufficient that the defendant merely say he was defending himself. He must present evidence that his conduct was justified under the applicable provision of Chapter 4 of Arizona Revised Statutes.

    For example, under 13-404, ARS, "...a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force...."

    And under 13-405, "... A person is justified in threatening or using deadly physical force against another:

    1. If such person would be justified in threatening or using physical force against the other under section 13-404, and

    2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force....."

    Therefore, the defendant claiming justified use of deadly force must put on competent evidence of that the requirements of 13-404 and 13-405, or one of the other provisions of Chapter 4, have been satisfied. This is not by any means simply "declaring self defense."

    This basically takes us back to what I wrote in post 102
     
    Last edited: Dec 29, 2009
  19. sgt gray

    sgt gray Member

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    Thank you all for making that clear to me. I guess I will just **** in a self defense situation. Its just kind of sad that the truth won't set you free in those situations.
     
  20. pax

    pax Member

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    Actually, that's not quite what the police do.

    Check out this excellent article written for police supervisors: http://www.laaw.com/highstress.htm

    Here's a relevant quote:

    Interesting to me, because this advice rather exactly parallels Ayoob's 5-point checklist:

    1. That person attacked me.
    2. I will sign a complaint.
    3. The evidence is there (point it out)
    4. The witnesses are there (point them out)
    5. You know how serious this is and you'll have my full cooperation after I've spoken with counsel (shut up and lawyer up).

    Hmmm. Laying one over the other, we get something like,

    Casualties -- me, anyone else injured, we're the victims
    Suspects -- there he is, there they are, they went that-a-way (flip-flop the first two items on the list)
    Evidence -- there it is
    Witnesses -- there they are
    Shut up & get a lawyer

    Interesting!

    pax
     
  21. Kleanbore

    Kleanbore Moderator Staff Member

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    Post 120

    Yes, that is interesting. Very interesting.

    It seems to me that, if other suspects were in the area or had just departed, anyone in his right mind would provide that information without delay.

    I'd be interested in knowing Mas Ayoob's thoughts on that.
     
  22. Marty Hayes

    Marty Hayes Member

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    Yo Kathy.

    Don't confuse them with the facts, especially this early in the morning.
     
  23. Old Guy

    Old Guy Member

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    It is not simple

    The above is very much so in my home State of Florida.

    When the Officers arrive at a suspected home entry, at 1AM, the dispatcher is concerned for the safety of her responding Officers way more than yours!

    As it should be, ambushes and all.

    In an incident in which I had cause to request patrol help, I thought I had an intruder in my house, response time 3 minutes. Incredible rapid response.

    911 Dispatch made sure (as much as she could) my weapon was secured. I let them in, they checked the areas I could not vouch for, downstairs/garage, some one had pulled my screen door open, by force, loud crack noise, but no entry made in to house, dead bolted main door had not been disturbed.

    The outside had been checked prior to entry, nothing.

    Hand shake, all six! they left, bored or what? No idea why someone had opened the screen door, but some one did, I was reading in bed, wide awake.
    The pulling open of the door unlocked it.

    If I had shot an intruder? I would still have let them in. I still would have put my G19 in my dressing gown pocket. When the Deputy's arrived I would have informed them of the location and condition of the pistol first. I would have informed the Dispatch as to the fact I had fired to protect my Wife and I, and I had not gone close to the intruder.

    The Police are now in charge.
     
  24. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Again, this is very misleading. Even when the defendant doesn't have the burden of proving justification, he does have the burden of producing evidence that his conduct met all the elements needed to satisfy the applicable legal standard for justification. Only once he has done so does the prosecutor now have the burden of proving that the defendant's actions were not justified. ANd even though the defendant may not have the burden of proving justification, the less convincing the defendant's evidence is, the easier it will be for the prosecutor to disprove justification.

    See for example, Spicer v. State of Florida (Case No. 5D08-3561, Fifth District Court of Appeals for the State of Florida, November 13, 2009):

    ""[o]nce a defendant makes a prima facie showing of self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense."(emphasis added)

    The point is that the defendant can not simply sit back, remaining silent, and force the prosecutor to disprove self defense. The defendant, rather, must go forward and make his claim of self defense by putting on evidence that the circumstances and his conduct satisfied each element required under the applicable law in order to be justified. And the better the defendant can make his case, the harder it will be for the prosecutor to meets its burden of proving, and convincing a jury, that the defendant did not act in self defense.
     
  25. chieftain

    chieftain Member

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    Actually he can. Until the State makes a charge, there is nothing to defend. Once the charges are drawn, that is when the guy you hired, hopefully an experienced and motivated attorney in these matters, will handle the defense.

    Your whole goal, and hopefully your attorney's too,is that the prosecuting body drops charges for any reason, there is No Bill from the grand jury, or Not guilty if it goes to court.

    Those are the desired results. in that order too.

    No one you will meet, is your friend. Your attorney is hired help, the police are looking for criminals and arrests, the prosecutor is looking for a batting average. All you can hope for is that everyone involved is an honest, moral, and professional person, doing their best for an honest and just outcome.

    None of this is personal, it is all just business, and once you killed That bad guy you became their business. Even your attorney, never forget in the end it is basically a business relationship.

    You and hopefully your family are the ONLY PEOPLE on your side. You may become very surprised by how some of your own family and friends may behave toward you too. This is not a little or flippant thing. Win or lose there will be major consequences.

    Go figure.

    Fred
     
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