After a shooting -- now what?

[Frank Ettin]

The point is that the defendant can not simply sit back, remaining silent, and force the prosecutor to disprove self defense.

Actually he can. Until the State makes a charge, there is nothing to defend.

Well you may not have been following this thread long thread too closely, but as has been outlined before, it's not quite that easy in a self defense case.

...You or someone in your family has called the police to report that someone hs been shot in your home. The police arrive, and there you are in the living room with the dead body of a person. You are visibly shaken. There is a gun on the floor. It has recently been fired. You're not saying anything.

Now if there are some strong reasons to believe you acted in self defense, as described in post 44, you may still be alright. But there might not be. In that case, the police will have probable cause to believe that you had just committed a crime, probably manslaughter. Accordingly you will be arrested, taken to jail, fingerprinted and your hands and clothes will probably be tested for gun shot residue (GSR).

A search of the crime scene discloses additional guns, a supply of ammunition similar to that found in the gun fired at the scene and perhaps a receipt in your name documenting the purchase, some years ago of the "crime gun." In addition, the tests of your hands and clothing are positive for GSR. Ballistic tests have confirmed that the gun recovered at the scene, at your feet, was the gun that fired the fatal bullets.

With just that, the prosecutor probably has a good chance to convince a jury that you shot the "victim" to death in your living room. That's all he has to prove, that you committed the act, to get a manslaughter conviction. He does not have to prove that you were not justified.

That is the prosecutor would only have to prove you weren't justified if you have, in your defense, made a prima facie case that you were justified. You will have to tell your story. And you will have to put on evidence supporting your story.

How difficult it will be for the prosecutor to successfully attack your self defense claim will in part depend on how convincing your story is, at the late date of your trial, and how strong the evidence supporting your story is. Things that could, in the minds of your jurors, damage your credibility will be bad for you (and things that enhance your credibility will be good for you). Evidence not discovered at the scene, like the dead guy's knife that fell down the heater grate -- which you saw, but the police missed -- could hurt you. Witnesses missed at the scene, like the guy you noticed walking by you house who might have seen the dead guy pick the lock of your front door, could hurt you.

It would be supportive of your claim of self defense if you said at the scene, (1) that person attacked me; (2) I'll sign a complaint; (3) that is evidence; (4) those people are witnesses; (5) I'm not going to say anything more now, but I'll cooperate in 24 hours after I've talked with my lawyer. But "I stand on my 5th Amendment rights" doesn't do a thing to help your self defense claim.

The cost of your defense, through a jury trial, could easily be in the neighborhood of $25,000 to $75,000....

The thing is that in a usual case of self defense, circumstances would be such that a prosecutor would not have much trouble finding probable cause to conclude that you committed a crime and thus get an indictment from a grand jury. What might get the prosecutor to conclude that it would not be worthwhile to pursue charges against you would be a showing that you have strong evidence to support your claim of self defense. And the core of your evidence will be your statement.

You will want to get your attorney involved at a very early stage. You will want him to have experience handling self defense claims. You will want him to help you tell your story at an early, but not too early, stage. BUT you do NOT tell your story at the scene or without the assistance of your attorney. What you do say at the scene is

* Say something like, "That person, or those people, attacked me." You are thus immediately planting the notion that you were the victim.
* Say something like, "I will sign a complaint." That establishes that you viewed the conduct of the other party to be criminal. It also shows a spirit of cooperation.
* Point out possible evidence, especially evidence that may not be immediate apparent. So if the assailant's knife slide under a car, tell the investigating officer. If the assailant dropped his gun in the bushes as he ran away, mention that. You don't want any such evidence to be missed.
* Point out possible witnesses.
* Then say something like, "Officer, you know how serious this is. 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."

 

[rageofangels]

What is a good resource for finding a laywer local to one's location? I'm in Indiana and our yellowpages didn't have anything. Not really sure where else to look. Thank you!

 

[Frank Ettin]

What is a good resource for finding a laywer local to one's location? I'm in Indiana and our yellowpages didn't have anything. Not really sure where else to look. Thank you!

Pleading self defense is very different from the usual defense strategy in a criminal case. The usual criminal defense is basically "I wasn't there, I didn't do it, you can't prove that I did it." This essentially involves attacking the prosecution's evidence to create a reasonable doubt.

But the defense of self defense is basically "I did it, but I was legally justified." That involves affirmatively introducing evidence to support your claim.

Most good criminal defense lawyers are experienced and skilled with the usual defense strategy, but have very little, if any, experience putting on a self defense case.

It can be tough to find the right kind of lawyer. If you know any LEOs, you could ask who the local police association/union uses to defend police officers in use of force matters. Another source for possible referral would be your local RKBA organizations. You could also consider the Armed Citizen's Legal Defense Network.

 

[chieftain]

You will want to get your attorney involved at a very early stage. You will want him to have experience handling self defense claims. You will want him to help you tell your story at an early, but not too early, stage. BUT you do NOT tell your story at the scene or without the assistance of your attorney. What you do say at the scene is

Exactly my point. Sit back and do nothing until your attorney is ready to have you give your statement. Not before. And I doubt he will have you say anything until you are arrested or formally questioned. AND HE WILL BE THERE.

The call you made to 911 immediately after the shooting should consist of Where you are and to send an ambulance, that you shot a guy in self defense, give your name, address and ****. Unlike ANY STATEMENT GIVEN AT THE SCENE, that will be on tape, and no investigating officer will make a mistake writing it down.

I will do it my way, you do it your way.

Go figure.

Fred

 

[Evnldr]

Well from somebody that cannot afford a layer. guess they will be better off letting them take their stuff. One should not have to pay ANYBODY to prove they are innocent in a free society.

 

[Kleanbore]

Actually he [(the defendant)] can simply sit back, remaining silent, and force the prosecutor to disprove self defense.

Yes, he can, but depending upon how clearly justified was the shooting, it might be a good way to end up getting convicted.

Until the State makes a charge, there is nothing to defend.

The rub is whether, at that late time, there will be any way to mount a successful defense.

Your attorney cannot even begin to produce evidence that is no longer available, or to find witnesses who have disappeared and will not come forward, or to find and bring back to the scene accomplices who disappeared whose presence created a disparity of force. Without said help, again depending upon the circmstances of the case, you may well be unlikely to get even a favorable jury instruction, and the evidence that you shot the man may likely result in conviction.

If it is clear to the officers that your occupied home had been forcibly and unlawfully entered by a man with a deadly weapon, and if it turns out that the man had a criminal record and an addiction problem, and had no business being there; if there had been no prior connection of any kind between you and the intruder; if there has been nothing significant to cast doubt on your good character or to reflect unfavorably on your state of mind; 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; your approach might entail little risk at all.

If, on the other hand, the shooting occurred in a place where both you and the other person had a legal right to be; if at least some of the witnesses, though perhaps with questionable motives, relate stories that do not support your account of the incident; if the police identified no supportive witnesses at the scene, or did not get early statements to reduce the risk of their choosing later to not put themselves at risk by supporting you; if the police did not secure, and you can therefore not produce, key items of evidence; if 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; I don't see how you think your attorney will have much of a chance at defending you--if any.

Making a statement without the benefit of counsel is always unwise due to the risk, even if you are innocent, and you should not do it. But the by-products of acting guilty by saying absolutely nothing could be a whole lot more damaging, in that there may later be no way for you to show that you had a self defense case to begin with.

I will do it my way, you do it your way.

OK. I was once trained with the same advice that you are now repeating over and over. However, I have since learned that that advice does not apply equally to all legal situations.

 

[Frank Ettin]

...I will do it my way, you do it your way...

Be my guest. It won't be my problem.

 

[Art Eatman]

Gone way circular and repetitive...