Don't Talk to Police (5th Admendment)

[kcofohio]

Disclaimer: This isn't, as the title may suggest, meant to disrespect our law enforcement. I say that in light of our country's current events.

In my search for a certain video I wanted to link in another thread, I came across this video. (It's about 50 mins. long.)
https://www.youtube.com/watch?v=6wXkI4t7nuc

It's a video of a law professor, and he shares time with a detective.

Basically, if the police, IRS, or other entities that have authority to bring charges against you. And they want to interview you, you're at best to exercise your rights under the 5th Amendment.

My original search was for a defensive shooting in the Omaha area. It was the shooter and his lawyer fielding question and answers. But I have seen other video interviews of defensive shooters that were recorded, without attorneys present, in law enforcement agency buildings, or I assume that was the place.

The law professor seems to make quite a few points as to how an interview could go bad quickly for the interviewee.

Does anyone see a different take to the video?

 

[mboylan]

Most of the time, they will postpone the interview until your head is clear and you can lawyer up.

 

[Frank Ettin]

...Does anyone see a different take to the video?

Yes, if one has used force against another person and intends to claim justification to avoid criminal liability. For some insight into why --

1. See this thread: What to Do after a Self Defense Encounter.
   
   
2. Here's what another lawyer, Andrew Branca, says about why not saying anything isn't necessarily the best idea if claiming self defense:
   
   
   • (emphasis in original)

     ...The “say nothing until lawyer” advice is based on the reality that anything you say to police can and may be used against you. It’s certainly true that the only 100% certain way to avoid saying anything incriminating is to say nothing at all.
     
     Rarely mentioned, however, is that what you DON’T say can also be used against you. Sure, you have a Constitutional right to remain silent, and once you’ve asserted that right your silence cannot be used against you.
     
     But this privilege applies post-arrest. Your silence before then can certainly be used by the Prosecution to infer guilt—an innocent person would have mentioned self-defense at the time, they’ll argue, and the fact that you did not do so suggests you only fabricated your story of self-defense after the fact to avoid criminal liability....

     
     
   • (emphasis in original)

     The 911 Call: Be the Complainant, Not the Respondent
     
     A huge problem for Michael Dunn in his claim of self-defense was the considerable consciousness of guilt evidence he provided to prosecutors. In particular, his flight from the scene well beyond the need to secure his safety and his failure to ever report the shooting to law enforcement before he was arrested at gun point on a murder warrant. This conduct was far more consistent with the behavior of someone who believed he’d “gotten away with it,” than it was with the behavior who believed they’d acted in lawful self-defense. This was especially damaging given that the only evidence of self-defense came from Dunn’s own testimony in court....

     
     
   • (emphasis in original)

     ...Let’s assume for purposes of this post, then, that you buy into the value of being the complainant rather than the respondent, and you therefore are the first to call 911.
     
     Taking the “say nothing until I talk to my lawyer” advice literally, exactly what are you going to say when the dispatcher answers your call? “I will say nothing until I’ve spoken to my attorney.” Really? When they ask “what’s your emergency?” surely that statement can’t be your reply. Rather, you’ll necessarily provide some description of what’s happened and the location to which you’re asking law enforcement (and ambulance) be sent.
     
     So, you’re ALREADY speaking with the police. And as long as you’re doing so, my advice is to get your claim of self-defense into the evidentiary record as soon as possible. You were attacked, you were in fear for your life, you were forced to act in self-defense. Of course, all of this will be recorded, and that recording will be admissible in court. As a result, the jury will get to hear your claim of self-defense in your own words and voice, with all the stress of the moment that such an event necessarily brings with it....

   
   
3. The Fifth Amendment only protects one against being compelled to testify against himself in a criminal case, not against talking with police, and the Supreme Court has ruled that one's silence may be used against him (Salinas v. Texas, 133 S.Ct. 2174, 186 L. Ed. 2d 376, 81 USLW 4467 (2013)).
   
   
4. It's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct, e. g., see Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:

   ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:
   
   "Sec. 1538 Conduct as Evidence of Guilt
   
   "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...
   
   See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....

   
   
5. The advice from those YouTube videos making the rounds to say absolutely nothing could well damage the credibility of a person claiming self defense, but that person's credibility will be vital to sustaining his claim of self defense.
   
   Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.
   
   As Ms. Steele explains the unique character of a self defense case in Part 1 (emphasis added):

   ...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. ...

 

[9mmepiphany]

As Frank has already posted, the advice in the video, which is 8 years old, isn't completely applicable when intending to use Self Defense as justification for committing a criminal act.

I've seen those tactics used very effectively in a Criminal Defense case where the State needed to prove the elements of the crime. That isn't the case when you intend to claim Self Defense.

Not making some statements to responding officers could lead to an inaccurate understanding of the circumstance surrounding the incident and evidence being missed

 

[kcofohio]

Frank, thank you for providing the other side of the coin. I'll be sure to read the thread and article when more awake.

9mm, okay, I see where the video wouldn't apply if it were a self-defense instance. Thank you!

That is why I posted the video on here. The video seemed to make much valid points. I see now how limited the advise is.

 

[Spats McGee]

Frank beat me to it and has done a pretty thorough job of laying out the reasons why I disagree with that video when it comes to SD shootings.

I haven't watched the video in some time. It may have some pretty good advice in terms of "garden variety" crimes, but SD shootings are different from those in some very fundamental ways.

 

[wiiawiwb]

I believe it is a rare person who, after just shooting someone, has the steady nerve to speak precisely and without saying something that can be purposely misconstrued by a lawyer looking to further their career and be used against me.

I would assert my innocence and tell the police I was attacked and I defended myself and intend to fully cooperate with the investigation once I've had an opportunity to speak with my lawyer.

No further discussion.

 

[Carl N. Brown]

What I've had impressed on me:
The whole point of claiming self-defense is to assert up front:
(a) yes I did it because
(b) I was defending myself (or other victims (TN)).
Self-defense is an affirmitive defense. You have to assert it.
Stand you ground and be the first to speak with responding officers.
You must also avoid going Chatty Cathy under stress and duress. First statement sweet, simple and factual.
Then you speak with a lawyer and have him speak with the investigators.


Flight = guilt.
Refusing to speak at all then your lawyer asserts self defense = Chicago the musical and film.

 

[kcofohio]

Thanks for the links! I read Kleanbores' thread. And I see I should have done a search, I would have found this video was already addressed.

Between the threads and the links to other sites (haven't read article by Lisa Steele yet), they clear up a lot on the subject of self-defense.

 

[Spats McGee]

To paraphrase something Frank Ettin has said from time to time:

• The best thing you can do after a self-defense shooting is say the right thing.
• The second best thing you can do is say nothing.
• The worst thing you can do is say the wrong thing.
• The hard part is knowing the difference.

 

[ATN082268]

I believe it is a rare person who, after just shooting someone, has the steady nerve to speak precisely and without saying something that can be purposely misconstrued by a lawyer looking to further their career and be used against me.

I would assert my innocence and tell the police I was attacked and I defended myself and intend to fully cooperate with the investigation once I've had an opportunity to speak with my lawyer.

No further discussion.

Pretty much agree although I would certainly make sure the police know about any potential witnesses and/or evidence

 

[Drail]

Many times the police are hoping that you will provide them with the evidence they need to have you prosecuted. Don't give it to them.

 

[Craig_AR]

That video is based on a lot of assumptions, and most subsequent discussions on the subject tend to be a lot of barracks lawyer opinions.

I believe the best advice comes from multiple articles and training videos from the Armed Citizens Legal Defense Network.
Please read these two items by Marty Hayes, ACLDN founder and president:

https://armedcitizensnetwork.org/you-have-the-right-to-remain-silent
and

https://armedcitizensnetwork.org/unintended-consequences-of-silence

Also, search their site for more discussion on the topic by Massad Ayoob.

Short version: the advice in that video is not very good advice.

 

[akodo]

I agree that the video covers the 99.9% interactions with the police. Self Defense shootings are a bit different. However I'd still say it partly holds. Talk to a lawyer in your home state who deals in gun things, but what I have been told is make a statement

I shot him.
I have a permit to carry.
I was in fear of my life because of these specific actions.
Right after I shot him I did X (gave first aid to perp or victim/ called 911/ran away to an area I felt safe/checked on my family members)
I am too stressed right now to answer any more questions

 

[Arizona_Mike]

I think the video is good advice in general but not in self defense cases which are not a "Whodunnit?" why a "Whydunnit?"

Mike

 

[ATN082268]

Many times the police are hoping that you will provide them with the evidence they need to have you prosecuted. Don't give it to them.

If you had a legitimate case of self defense, I don't see the harm with pointing out potential witnesses and/or physical evidence to the Police. I would be wary of statements beyond pointing out these things for supporting your claim of self defense...

 

[ilbob]

IMO you say as little as possible in the immediate aftermath of a SD shooting. Identify yourself and tell them you were in fear of your life and were forced to defend yourself.

If LE wants to question you later on you should absolutely have your lawyer there.

The immediate aftermath is a somewhat tricky situation and probably does not have a one sized fits all answer, and the real problem you have is that is not a good point to be trying to decide just what you want to be doing because you are likely to not be in a state of mind where rational thinking is likely to be something you are engaging in.

 

[Kleanbore]

Identify yourself and tell them you were in fear of your life and were forced to defend yourself.

And just how would you mount a defense of justification when evidence that could have helped you for which the arriving officers had not been looking, has disappeared forever?

 

[rodregier]

...pointing out exculpatory evidence and witnesses... in the case of self-defense

 

[Drail]

Playing lawyer without training and experience is like poking a stick into a hornet's nest. It could go badly for you. Don't give them anything to use. That is your lawyer's decision and responsibility. The facts and a jury will decide the case - regardless of your opinion that it was or was not self defense.

 

[Frank Ettin]

Playing lawyer without training and experience is like poking a stick into a hornet's nest....

On the other hand, several lawyers have explained why saying nothing can be a bad idea in a self defense situation and have made some suggestions about what to say.

 

[dwjwin50]

In an Officer Involved Shooting, even the LEO is encouraged to avoid speaking with the Police until his union rep and attorney is present and enough time has elapsed to recover.

 

[fastbolt]

Wow, old video link.

I think Posts #3 & #4 covered a nice counter point well enough.

I'll only add that I was involved in a case where a young man used a handgun to shoot one of the 4 suspects in a robbery, after having been pistol-whipped and another victim/young man had been held at knife-point (against his throat) during the robbery. It was their statements to myself and the other responding investigative folks that helped us figure out what had happened at the chaotic scene, and it allowed us to figure out there was no reason to arrest the robbery victim who shot one of the suspects (very seriously wounding him and disabling him for life).

In the subsequent civil suit later brought by the disabled suspect (who pled to a lesser charge and served a little time), plaintiff's counsel asked why the "shooter" hadn't been arrested. The obvious (to me) answer was that based upon the initial statements taken at the scene (which didn't change during further investigation), nobody believed there was any reason to arrest the victim who had shot the suspect. The DA felt the same way.

Circumstances and situations can certainly be different, though.

FWIW, I continue to pay for legal coverage even though I'm retired, since I remain active as DL1 reserve, in case I have to take action in my reserve capacity and require legal advice. I've been considering taking advantage of some further legal coverage offered for retirees, though, as the reserve gig will eventually end, at some point.

 

[Frank Ettin]

In an Officer Involved Shooting, even the LEO is encouraged to avoid speaking with the Police until his union rep and attorney is present and enough time has elapsed to recover.

Not necessarily.

Based on a number of sources, involved officers can be expected to immediately provide limited information for public safety and preservation of evidence purposes.

As noted in this article from PoliceOne.com:

...2. The involved officer(s) can give you certain immediate information without compromising personal legal protection.

Jeff Chudwin, chief of Olympia Fields (IL) PD and a former prosecutor, says an involved officer should communicate these essentials: the status and location of the offender(s), if known; evidence that needs to be protected; witnesses who need to be isolated and questioned; ...

In the absence of other reliable eye witnesses who can explain what happened, the involved officer should privately give his supervisor a "very brief, barebones description" of the event--the least amount of information needed to convey the nature of what happened, Lewinski says.

According to John Hoag, a National Advisory Board member of the Force Science Research Center who has responded to more than 40 shootings as a police union attorney, this information can be as sparse as: "He pulled a gun while I was patting him down, I thought he was going to kill me, so I shot him to defend myself."

It's important also, Hoag says, that the involved officer(s) delineate the scope of the scene. ...

"All this information should be given orally and should not be detailed-just enough to get the investigation pointed in the right direction," ....

This is even reflected in the "Officer-Involved Shooting Guidelines" of the International Association of Chiefs of Police (emphasis added):

4.2. After providing needed public safety information, officers who fired a weapon or were directly involved in a critical incident should be encouraged to step immediately away from the scene....

 

[Kleanbore]

Jeff Chudwin, chief of Olympia Fields (IL) PD and a former prosecutor, says an involved officer should communicate these essentials: the status and location of the offender(s), if known; evidence that needs to be protected; witnesses who need to be isolated and questioned; ...

Great advice, and very important for civilians, also.