Hauled in for questioning?

[Kleanbore]

(Not directed at you) show me a case where making such a statement hurt the defendant.

I know of none.

Ayoob, Branca, and Davis recommend doing so.

The issue is whether not doing so can hurt the defendant's case. I had not been aware that it could until Branca related such a case.

I'm nit going to dig for it.

A Platinum LoSD member can find it, and could open the links, which are only available to them.

For the actual decision, one would have to have access to Lexis or a competitor.

What happened was this: a defendant asked for a self defense jury instruction--standard practice.

The judge denied it. That happens.

The reason was something like "you bring that up now, but you did not mention it at the outset. I I'm not going to allow it".

If properly reserved by objection, that is a basis for appeal.

 

[Rockrivr1]

That would go on a list of the ten worst things to do after a use of force incident.

OK. What is your reason though? I'm only posting it as a LE told me this. If it's bad, you need to at least give a reason why.

 

[Jim Watson]

First of all, a shooting happened, which included a homocide.

Well, not every time.
I have seen the advice to be the first one to report the incident.
You sure don't want an assailant to flee the scene and call to say "That crazy modderpockcr was shooting at me!"

 

[Kleanbore]

OK. What is your reason though? I'm only posting it as a LE told me this. If it's bad, you need to at least give a reason wh

It would likely destroy your credibility.

It is also extremely unethical to falsely request emergency medical services that may be needed by someone else.

 

[Trunk Monkey]

OK. What is your reason though? I'm only posting it as a LE told me this. If it's bad, you need to at least give a reason why.

Because the first thing EMS is going to do is put you on an EKG. The EKG will show that you're lying.

Masaad Ayoob recommends simply telling the police you'd like EMS to check you out. He also says you'll probably need it anyway.




If the police are really pushing you to make a statement you probably really need to consult an attorney before you say another word

 

[Frank Ettin]

Phooey! It's not a question of one's right to make up his own mind. Calling out or challenging information or advice as bad information or advice does not denigrate an individual's rights.

People remain free to make bad decisions, to screw things up, and to fail. But the point of education is to make better information available and to give people tools to help them perhaps make better decisions, to avoid screwing things up, and to improve their chances for success.....

ROGET THAT. I think the BILL OF RIGHTS is a legal document, to me at least it is. THE RIGHT TO MAKE THE DECISION AS TO WHAT ADVICE IS CREDITABLE IS UP TO THE INDIVIDUAL. How this information is used is also up to the individual. So if you are attacking me on the grounds that what I am saying is not backed by 'law', all I can say is READ THE BOR's! If a person feels the need for 'counsel' he has that RIGHT, but it is NOT a requirement.....

That is perhaps one of the most ludicrous comments I've seen. The Constitution, including the Bill of Rights, circumscribes certain conduct of government. But neither the Constitution as a whole, nor the Bill of Rights, will necessarily protect anyone from the consequences of bad choices.

Someone who intentionally committed an act of violence against another person will be a subject of an investigation. And while he has the perfect right to choose not to be represented by legal counsel, whether that would be a wise choice is another matter entirely, even if he is claiming self defense.

...anyone who finds them in a SD situation is DO NOT TAMPER WITH THE SCENE/PHYSICAL EVIDENCE. ...

That is good advice.

 

[Jim Watson]

Masaad Ayoob recommends simply telling the police you'd like EMS to check you out. He also says you'll probably need it anyway.

Probably so. I won't lie, but I am no spring chicken and I am not going to try to be manly and act less shaken at my close call.

 

[rbernie]

So . . . if the police DO NOT place you under arrest, but want you to go to the station for questioning, do you have to go with them? I understand that they may decide to arrest you if you refuse to go and that resisting arrest is not going to turn out well for you, but I'm just wondering from a legal standpoint if you are required to go with them if they just say "come along to the station with us, you're going to answer some questions."

I just read through four (4) pages of, well, stuff, and I'm not sure that any single post has summarized an answer to this question in the OP.

Does this scenario, as specifically asked, actually really happen? In other words, is this sort of statement (a request to taken in to the station, but absent an overt 'you're being placed under arrest') a standard or possible behavior in the immediate aftermath of a post-shooting investigation? If so, can I refuse, and if I do - will a refusal have a high likelihood of resulting in consequences that are unfavorable to me?

 

[AlexanderA]

I think it's wise to at least maintain the illusion, for as long as possible, that you and the police are on the same side. That means keeping up an aura of cooperation and avoiding confrontational questions such as "Am I being detained?" Because before you know it, you will be.

 

[bdickens]

I've seen this posted before, and I'm disbelieving of the assertion. I've asked the posters to back up the claim with case citations and no one has provided any. The only response given to date is that something to that effect was attributed to someone who said something in a presentation. Until there's a case on the table, I'm calling "BS" on this. If there really is any such case law, I'd really like to see it and would be very grateful to anyone who could provide it.

Some people's kids....

The country's leading experts on such matters all agree on a course of action, all advise almost identically word-for-word the same thing as one another, and here you are demanding the "case citations."

Do you demand all the research studies before you will take prescribed medicines, too?

 

[RickD427]

I know of none.

Ayoob, Branca, and Davis recommend doing so.

The issue is whether not doing so can hurt the defendant's case. I had not been aware that it could until Branca related such a case.

I'm nit going to dig for it.

A Platinum LoSD member can find it, and could open the links, which are only available to them.

For the actual decision, one would have to have access to Lexis or a competitor.

What happened was this: a defendant asked for a self defense jury instruction--standard practice.

The judge denied it. That happens.

The reason was something like "you bring that up now, but you did not mention it at the outset. I I'm not going to allow it".

If properly reserved by objection, that is a basis for appeal.

Kleanbore,

Thanks for relating your recollection of the "mystery" case where the victim was denied the availability of a self-defense instruction.

But it looks like the facts of your recalled case differ considerably from the one that we discussed yesterday in this thread. The phrase "you bring that up now, but you did not mention it at the outset, I'm not going to allow it" is very typical of court responses to tardy pleadings. A very general rule in court is that if you don't raise an issue at a timely point in the litigation, then you can't go back and raise it later.

But the assertion made yesterday was that a potential defendant could be denied the self-defense instruction if they failed to raise the self-defense issue to first responding officers in the field. That is something completely different from what you just wrote, and it's far enough out in the legal "Left Field" to justify a call of "BS".

It's well past time to either: 1) Identify the "mystery case." 2) Stop the BS, or 3) Admit that the denied instruction was a product of a tardy pleading, in which case it has no bearing on statements made to first responders.

 

[Kleanbore]

That is something completely different from what you just wrote, and it's far enough out in the legal "Left Field" to justify a call of "BS".

Do you believe that your legal understanding of this subject equates to that of the two very specialized attorneys in the video posted above?

What might be your basis for that?

 

[Frank Ettin]

Some things that are not said can also be used negatively--such as a failure to mention self defense.

...I've seen this posted before, and I'm disbelieving of the assertion. I've asked the posters to back up the claim with case citations and no one has provided any. The only response given to date is that something to that effect was attributed to someone who said something in a presentation. Until there's a case on the table, I'm calling "BS" on this. If there really is any such case law, I'd really like to see it and would be very grateful to anyone who could provide it....

... I learned about it in a report on a very recent appellate ruling discussed on the Lawof Self Sefense Blog.....

I believe that the case is the Michael Dunn case from Florida. Here are some of the things Mr. Branca said about the case in a 19th June 2020 interview with Don West of CCW Safe:

• ...There was a famous case in Florida, the Michael Dunn case where he shot somebody in a car next to them at a convenience store. And then he fled the scene. And later he would claim: Well, I shot that person because they pointed a shotgun at me.....

  
  

• ...Unbeknownst to him, a homeless person living in their car in the parking lot of the convenience store got his plate number. So when he finally got home, the police were there waiting for him...

  
  

• ...They didn’t have his narrative, they had the other party’s narrative, and the other party’s narrative was: Some crazy dude shot my friend and drove off. That’s what the police had. And they had that narrative and only that narrative until they arrested them the next day at his home elsewhere in Florida, because he was visiting the area. So what that meant was that whole first night at the scene, when the police were gathering evidence, talking to witnesses, it was never in their heads that the shooter might have been acting in self-defense.....

  
  

• ...none of us knows what actually happened, right? None of us were there, none of us were witnesses. All we can do is look at the evidence and make reasonable inferences from the evidence. So for all we know, Michael Dunn’s telling the truth for all we know, a shotgun was pointed at him. But if that was true, the only reason that shotgun was not in evidence is because he fled the scene and did not call the police, and report the act himself....

Dunn appealed his conviction, first claiming that the trial judge erroneously failed to grant his motion for a directed verdict of acquittal (Dunn v. State, 206 So.3d 802 (Fla. App. 2016)) and later claiming ineffective assistance of counsel (Dunn v. State, 282 So.3d 899 (Fla. App. 2019)). The evidentiary issue discussed by Mr. Branca isn't mentioned in either appellate opinion, and there's no reason it would be.

An appeal is taken on points of law. In the first appeal the legal question was whether the prosecution put on enough evidence to overcome, beyond a reasonable doubt, Dunn's self defense claim; and Dunn's self defense claim was supported only by whatever evidence Dunn actually presented at trial. Dunn did not have available whatever additional exculpatory evidence (notably the shotgun) that might have been available had he stayed at the scene and provided some minimal assistance at the earliest stage of the investigation. Nor were Dunn's evidentiary problems issues in the ineffective assistance of counsel appeal.

The Supreme Court has ruled that one may be asked questions under circumstances not amounting to a custodial interrogation, and one's silence in response to such questioning may be used by the prosecution (Salinas v. Texas, 133 S.Ct. 2174 (2013)).

Also, silence (or lying) is a form of conduct, and it's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct.

• U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:
  

  ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....

  
  
• State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:
  

  ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'
  
  McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.
  
  We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....

  
  
• State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:
  

  ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.
  
  Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...

  
  
• 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)....

Of course, silence may be commented on by the prosecution only if it occurs before one expressly clams his Fifth Amendment rights. But claiming one's Fifth Amendment rights won't make up for exculpatory evidence or witnesses lost because the subject's failure to mention them or to promptly assert self defense.

Although not relevant in the United States, it's interesting to note that the current form of the British caution (the British version of "Miranda") is:

You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.

 

[Kleanbore]

The case to which i referred is Sate v.Trujillo, 2020 MT 128 (Montana Supreme Court 2020).

I remembered it wrong. The defendant was not denied a self defense instruction (that has occurred in a number of recent cases, and I confused them).

What did happen was that the defendant's failure to mention self defense a the scene was introduced as evidence. The prosecution emphasized that fact at trial.

The defendant was convicted. He appealed, and one of his bases for appeal was the admission of his silence on the subject as evidence.

His appeal was denied. The denial on the Fifth Amendment issue was due precisely to what Frank mentioned above.

 

[Frank Ettin]

....Does this scenario, as specifically asked, actually really happen? In other words, is this sort of statement (a request to taken in to the station, but absent an overt 'you're being placed under arrest') a standard or possible behavior in the immediate aftermath of a post-shooting investigation? If so, can I refuse, and if I do - will a refusal have a high likelihood of resulting in consequences that are unfavorable to me?

The problem is that here, as with so many legal questions, there isn't one, simple, straightforward answer. The "devil is in the details" and a good answer will be very much fact dependent -- the totality of the circumstances.

What might happen at the scene with be driven, at least in part, by the officers' preliminary impressions, and by the policies of their agency. The consequences of a subject's conduct or failure to mention something will also depend in part on exactly what happened.

Michael Dunn's leaving the scene appeared to result in the loss of potentially critical. exculpatory evidence, if his story was true. On the other hand, Bernie Goetz, the 1984 "Subway Vigilante" fled the scene of his self defense incident and was, nonetheless acquitted on a self defense plea of assault with a deadly weapon (but convicted on an illegal weapons charge).

What we can work toward is a deeper understanding of use of-force-law and best practices so that one can make the best choices depending on whatever variation of possible scenarios he might face.

 

[rbernie]

The problem is that here, as with so many legal questions, there isn't one, simple, straightforward answer. The "devil is in the details" and a good answer will be very much fact dependent -- the totality of the circumstances.

I totally get that. But the entire thread is built on a premise - that a request by the police to be 'taken in for questioning' could / would occur independent of arrest - and the OP specifically asked if that was a realistic premise. That seems answerable, as a procedural question, without being tied to the issues associated with 'what are the second order impacts of not being cooperative, to some degree'.

 

[Frank Ettin]

The case to which i referred is Sate v.Trujillo, 2020 MT 128 (Montana Supreme Court 2020)....

Thank you.

The opinion may be read here.

 

[Frank Ettin]

...the entire thread is built on a premise - that a request by the police to be 'taken in for questioning' could / would occur independent of arrest - and the OP specifically asked if that was a realistic premise. That seems answerable, as a procedural question, ...

Yes, but in those terms the answer is "maybe."

Police could certain ask the subject, or any witness, to come to the station to make a statement. Whether an officer might do that will depend, at least in part, on whether the officer thinks it would be useful to the investigation and/or agency policy. How police might handle a subject or witness declining to do so could again depend, at least in part, on the circumstances and agency policy.

 

[RetiredUSNChief]

If I may here, as things have kind of heated up a wee bit:

Legal matters do not always follow what people might think of as "common sense". In fact, on any given legal topic there will be a significant number of people who have SERIOUS misconceptions about how the legal/justice system works, what the various statutes say and mean, and how the law is applied under various scenarios.

The problem with this is that misunderstandings on the law and applications of the law can have SERIOUS consequences...financially, physically, and legally. When you are dealing with legal matters in the courts, your very freedoms and rights may be at stake.

This means that the LAST thing people OUGHT to be doing is "going it alone" (without competent legal advice/representation) and acting out of ignorance (misplaced understanding) or "feelings". This is where "poor advice" or "bad idea" come into play.

An important part of THR is the utilization of the various forums on the site to both teach and learn, to exchange information, etc. There's a lot to this, and part of it would be realizing when one is either wrong or, in some fashion, deficient. It's often a challenge to learn to overcome our natural tendencies to buck against this. But sometimes we need to take a step back and realize that this isn't personal at all...it's professional.

 

[Kleanbore]

He puts himself forth as a LE EXPERT WITH EXTENSIVE EXPERIENCE, which is not true.

He is an expert with very extensive experience in the field of use of force law--period.

That necessarily includes expertise in how use of force incidents occur, unfold, and are perceived and remembered by the various parties, and how juries and prosecutors think and act.

Attorneys who have taken his courses say that hey learned more from about use of force law from him in 20 hours than in all of law school.

he DOES NOT HAVE the LE experience he uses to add to his credibility.

His expertise and experience do not derive from days on the beat.

BTW, Mas is a member here.

Like said, TO EACH HIS OWN!!

What is that supposed to mean?

 

[JTHunter]

I think it's wise to at least maintain the illusion, for as long as possible, that you and the police are on the same side. That means keeping up an aura of cooperation and avoiding confrontational questions such as "Am I being detained?" Because before you know it, you will be.

Careful - you are starting to sound like Yoda when Luke said "I'm not afraid."

 

[Kleanbore]

Personal attacks are fine for you, but not the members

I have said nothing about you.

There is nothing personal in discussing the posts of members. Read the rules to which you have agreed.

To keep repeating that is "up to the individual" to evaluate advice doesn't really tell anyone anything.

There are people whose advice on the subject of self defense law is considered reliable. Among those who come immediately to mind are Massad Ayoob, Andrew Branca, and Marty Hayes.

There is little need for people to spend a lot of time evaluating which one's advice to accept. They speak highly of each other, and their advice is extremely consistent.

It is generally the case that one would not be advised to accept important advice on this subject from the likes of CCW instructors, law enforcement officers, or most lawyers.

 

[Kleanbore]

Personal attacks are fine for you, but not the members

I have said nothing about you.

There is nothing personal in discussing the posts of members. Read the rules to which you have agreed.

To keep repeating that is "up to the individual" to evaluate advice doesn't really tell anyone anything.

There are people whose knowledge of the subject of self defense law is considered very good. Among those who come immediately to mind are Massad Ayoob, Andrew Branca, Marty Hayes, and Don West.

Some of them are better than others, but there is little need for people to spend a lot of time evaluating which one's advice to accept. They speak highly of each other, and their advice is pretty consistent.

It is generally the case that one would not be advised to accept important advice on this subject from the likes of CCW instructors, law enforcement officers, or most lawyers.

 

[RickD427]

Wow, I took a few hours away from the computer to get some work done and things seem to have changed a bit. Rather than "Multi-Quote" a whole bunch of folks let me summarize a couple of points:

1) About the issue of Subject Matter Experts - I've questioned whether Mr. Branca is really a "Leading Expert" in the field of self-defense law. I did that for two reasons: 1) When a person refers to themselves as a "Leading Expert", I've found that's usually embellished, and 2) Because I've never seen his name associated with any of the many self defense cases that I've followed. I've done a little inquiry into his stature. He appears to be a well-read professional, but his "expertise" really seems to very limited to a training and authorship role, and also very narrowly in the service of one conceal carry organization. I haven't seen where he has handled any significant ligation in the field and that kinda knocks him out of the "Leading Expert" category as an attorney. For the record, Massad Ayoob and Jason Davis have well-established records in their fields of expertise. I understand that Mr. Ayoob has no full time service as an LEO, but that's not really relevant to his field of expertise. I've found his his value to be in his research and mastery of facts, the ability to analyze those facts for meaning, and to communicate.

2) This debate started over the assertion that one should make an immediate claim of self-defense to the first responding officers or otherwise risk a court denying a "self-defense" instruction. That's where I called "BS" on the assertion. Debate on the point seemed to devolve to where, "Mr. Branca said so, he's an expert and you're not" and "I'll believe the experts" viewpoints. We finally (thanks to Frank) got the actual case on the table and found that there was no such content in it. There's a lot of value to experts, but that value is not in taking their advice blindly (and especially so when you turn out to be mistaken as to what was said by the experts), it's in being able to to follow the analytical path that they can lay out (this is where Mr. Ayoob deserves a lot of credit). There's a lot a wisdom in the adage "The ark was built by amateurs, the Titanic was built by experts".

3) That bring us back to the original point - what information should one provide to first responding officers following a defensive shooting. My original points remain: 1) There should be no "Lists" or rehearsed statements to go by. Each situation is different and must be considered. 2) Information that is urgent should be immediately supplied. That includes the "Public Safety Statement" and other information that may cause an immediate response by officers. 3) Information that lacks an urgency should be provided after you consult with your attorney. Here's where I give a lot of credit to Mr. Branca's training materials. He does a good job of explaining the impacts of a shooting on one's mental processes. It's wise to delay statements until your mental state can come back to normal, just so long as you don't compromise the investigative process. That's why you gotta distinguish between the urgent and non-urgent points of information.

4) Some commentary about the Salinas case is necessary. Salinas held that inferences could be drawn from a suspect's silence prior to the attachment of the Fifth Amendment. In Salinas' case he was being responsive to questions and then suddenly "nutted up" and went silent when the questioning appeared to implicate him. The reasonable inference under those circumstances was guilt. But it is a great mistake to read Salinas as holding that all silence is indicative of guilt. If you make a statement to the first responding officers, "I'll discuss any emergent issues with you, but I want to wait on discussing the non-emergent stuff until I speak with my lawyer", there's no reasonable inference of guilt to be had.

So, we're pretty much to where we were two pages ago. Let's put the "You gotta claim self defense at the scene" idea to bed. It's not the case, and I see where the advocate for that statement has admitted error (and don't feel bad, we all make such mistakes. It's best to admit them and move on).

Let's get the thread back on track, and stay on the High Road.

What are thoughts on distinguishing "Urgent" for "Non-Urgent" info at the scene of a defensive shooting?

 

[RickD427]

Yes, but in those terms the answer is "maybe."

Police could certain ask the subject, or any witness, to come to the station to make a statement. Whether an officer might do that will depend, at least in part, on whether the officer thinks it would be useful to the investigation and/or agency policy. How police might handle a subject or witness declining to do so could again depend, at least in part, on the circumstances and agency policy.

Frank,

We often request the victims and witnesses in a shooting case to voluntarily come to our stations, and when they do, we usually put them up in the dining room or conference room. It helps a lot with the scene management, there usually isn't much room to stand around in once the yellow tape goes up, and it helps guard against unmonitored communication between parties than can legally corrupt statements.

But there is no legal standing to require folks to come with us unless there are facts that would make them subject to an arrest.

Several years ago, the Los Angeles City Police became a little "over-zealous" and involuntarily took a bunch of crime scene witness to their station on a "voluntary" basis. They incurred a rather significant civil judgement as a result and the case was widely circulated to other LE agencies.