Mas Ayoob on "saying nothing" to police after a SD incident

[old lady new shooter]

Interview by John Correia.

Many of us have heard a million times "Never say anything to the police except 'I have to call my attorney'. In this video Mas Ayoob says this is a bad idea, explains why, and advises what we should say.

 

[Spats McGee]

In the aftermath of an SD shoot, the best thing you could do would be to say the right thing. The second best thing would be to say nothing, and the worst thing would be to say the wrong thing. The trouble is knowing the difference between the best and the worst.

 

[FL-NC]

Very good points- I would definitely shut up if I was advised of my rights. That is basically "advising" me to shut up. I would definitely seek medical attention immediately, for any injuries I may have sustained as well as the intense mental stress that would inevitably overtake me after any violent encounter. I think during my time as a patient, I may have the time to call SOMEONE to let them know that something terrible has happened.

 

[hanno]

Sorry, as an attorney for 36 years with considerable experience as both a prosecutor and a defense attorney, I disagree with the video. People typically are not their best after a traumatic event. I don't want the police report detailing what my client blurted out at the scene. Instead, I want the police report to contain a statement the client wrote after the client has had a chance to calmly reflect on the event and has had the opportunity to discuss the legal issues involved. Remember, you are not only looking at criminal charges, you are often looking at civil liability with a lesser standard of proof.

I have had clients charged in criminal cases who would have walked except for the statement they gave to the police.

Even when clients consult an attorney before taking a course of action, they often ignore the legal advice. Their right but not always a wise course of action. A lot of defense work is "clean up on aisle three" trying to put toothpaste back in the tube.

Just some thoughts, for advice consult your own attorney.

 

[Kleanbore]

Many of us have heard a million times "Never say anything to the police except 'I have to call my attorney'. In this video Mas Ayoob says this is a bad idea, explains why, and advises what we should say.

Good advice, but I would not say anything about pressing charges or signing a complaint.

On does not want essential exculpatory evidence to disappear from the scene.

I disagree with the video.

With what aspect?

I don't want the police report detailing what my client blurted out at the scene.

Hence, the advise is "don't blurt".

Are you recommencing against speaking to a 911 dispatcher?

Instead, I want the police report to contain a statement the client wrote after the client has had a chance to calmly reflect on the event and has had the opportunity to discuss the legal issues involved.

What about evidence and witnesses no longer available?

 

[hanno]

Good advice, but I would not say anything about pressing charges or signing a complaint.

On does not want essential exculpatory evidence to disappear from the scene.

With what aspect?

Hence, the advise is "don't blurt".

Are you recommencing against speaking to a 911 dispatcher?

What about evidence and witnesses no longer available?

If you don't understand why I disagree with the video read my post again or ignore it and move on.

"Don't blurt" - great advice but not much use in the real world. It happens a lot more than most folks think. Adrenaline and all that. I have seen very experienced cops blurt out things after a traumatic event. Much to their regret.

No, I don't want exculpatory evidence disappearing but I have won cases because it did. It is the job of the police to secure evidence. When they don't, it is easy to argue to the jury: "What are they trying to hide?" Been there, done that, it works.

I am not "recommencing" anything. Like I said, my thoughts only. If you want recommendations, call your own attorney for advice or do as you will.

 

[Lineman65]

If you don't understand why I disagree with the video read my post again or ignore it and move on.

"Don't blurt" - great advice but not much use in the real world. It happens a lot more than most folks think. Adrenaline and all that. I have seen very experienced cops blurt out things after a traumatic event. Much to their regret.

No, I don't want exculpatory evidence disappearing but I have won cases because it did. It is the job of the police to secure evidence. When they don't, it is easy to argue to the jury: "What are they trying to hide." Been there, done that, it works.

I am not "recommencing" anything. Like I said, my thoughts only. If you want recommendations, call your own attorney for advice or do as you will.

Thank you. I haven’t been in a self-defense situation, but I have been at the scene of a work place accident that resulted in some pretty serious injuries.
I was astonished at what came out of the mouths of some of my fellow workers. I would definitely err on the side of caution when speaking to law enforcement.

 

[Kleanbore]

It is the job of the police to secure evidence.

To secure evidence that might prove useful to a suspect? Why would they be looking for it?

When they don't, it is easy to argue to the jury: "What are they trying to hide?"

Lessee....

The defendant , claiming self defense, says that the victim had a knife, and that it was taken by an accomplice.

No knife is found. No accomplice. No other testimony that either ever existed. The defendant necessarily admits to having killed the victim.

How might "what are they trying to hide" work in that case?

All of the experts in use of force law that I know of agree with Mas on this.

 

[hanno]

Why should police gather all the evidence including evidence that exculpates the accused? Because it is their job.

As far as your little scenario goes - we can play the "what if" game until the cows come home. Tweak a couple facts and different outcomes.

I know the advice I gave clients was based on years of practicing law as a prosecutor and defense counsel in the real world.

I am not giving advice here. I am simply saying based on my experience, I disagree with Ayoob.

You want to agree with Ayoob's advice. OK

 

[daniel craig]

Mas knows a lot, but unless I’m mistaken he ain’t a lawyer. Hearing from lawyers, as we have a bit in this thread is likely more useful.

 

[FL-NC]

People typically are not their best after a traumatic event.

As someone who has been in a large number of after action reviews after lethal incidents, I can definitely vouch for this. Granted, all of my experience has been overseas in war zones, and the investigations were generally for the purpose of detailing the event for intel purposes to learn as much as possible about what went down, we tried to always give the boys time to "get it together" once we returned to base before others started asking a whole bunch of questions. Things like adrenaline dump and crash, added to lack of experience, can make people say all sorts of things in the moment.

 

[Frank Ettin]

Mas knows a lot, but unless I’m mistaken he ain’t a lawyer. Hearing from lawyers, as we have a bit in this thread is likely more useful.

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. ...

 

[Kleanbore]

Mas knows a lot, but unless I’m mistaken he ain’t a lawyer.

He is not. He has, however, testified as an expert witness in numerous trials involving self defense cases.

Attorneys Andrew Branca of Law of Self Defense and Don West of CCWSafe give the same advice.

Hearing from lawyers, as we have a bit in this thread is likely more useful.

A legal defense of self defense differs substantially from other criminal defense cases.

In the latter, the attorney's objective is to prevent the prosecution from proving beyond a reasonable doubt that the defendant committed or threatened a violent act. The prosecution would need evidence to do that. Hence, "don't talk".

In a selfdefense case, the defendant must admit ti having threatened or committed violence. He or she will mount a legal defense of self defense to prove that the act was necessary and lawful. The defense will have to present evidence toward that end...first, a minimal amount to bring about a self defense ins, and then, enough to prevent the prosecution or plaintiff from proving that the act was not lawful.

If that evidence disappears at the scene, the jury will never know about it it. Hence. "point out the evidence".

I see that Frank has explained this and more.

The number of attorneys who really understand the practice of mounting a legal defense of self defense constitutes a small minority among criminal defense attorneys.

 

[hanno]

Online "legal advice" is always a bad idea. Citing cases is a meaningless exercise. For example, in the Salinas case cited above, if petitioner had at the outset said he wanted to consult an attorney, his subsequent silence in response to questions could not have been used against him. That outcome is very fact specific. Period.

What is the law in your jurisdiction? How has that law been applied in the local and appellate state courts? Have the federal courts spoken on that fact specific issue? What do the jury instructions given by the judge say? Is the prosecutor a "true believer" or is he someone who will work with you? What "will work" with a particular judge versus what "will work" with a different judge down the hall. The list goes on and on. There is no "one size fits all" solution. That is why you should seek the advice of an attorney who specializes in criminal law and who has a decent amount of trial experience in your area.

I did not enter this discussion to convince anyone or give advice. As I said at the beginning. I disagree with Ayoob and my only point in posting was to present the fact that there are alternative views. Check with your attorney and find out his/hers.

One last time, there is a huge difference between blurting out at the scene and providing a well thought out statement after consulting with an attorney.

The 911 call is not part of this.

As far as "experts" go, I have seen too many of them destroyed on the stand to blindly listen to their advice.

 

[daniel craig]

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)
     
     
   • (emphasis in original)
     
     
   • (emphasis in original)
   
   
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:
   
   ​
   
   
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):
   
   ​

That’s more like it. Thanks for doing the work to pull all that together.

 

[hanno]

Just a bit more on cases and experts.

As a prosecutor, I had a case where I had a theory of the case and presented evidence to support that theory. I got a conviction. After the trial the defense counsel and I had an opportunity to talk to the jurors. It was a very humbling experience for both of us. The jurors picked up on something at trial that neither of us had focused on and that drove their verdict. It surprised us both. The jurors did the right thing but for their own reasons.

Another case we had battling well qualified experts. Again the defense counsel and I talked to the jurors after the trial. The jurors were unimpressed with the experts and essentially zeroed them out, focusing on the other evidence.

I've won cases I should have lost and lost cases I should have won. Most attorneys who try cases will tell you the same. There is no "one size fits all."

When I was a defense counsel, when the jury went out to deliberate, clients would almost always ask what do you think they will do? My response was always the same: "We put on our defense and we will know what they will do when they come back and tell us."

If anyone here thinks Ayoob has the only correct answer, then they should follow his advice. I disagree.

 

[Frank Ettin]

...."Don't blurt" - great advice but not much use in the real world. It happens a lot more than most folks think. Adrenaline and all that. I have seen very experienced cops blurt out things after a traumatic event.....

• In general, how well things work out for us will be a product of how well we deal with the various challenges that will confront us in life.
  
  
• And in general, how well be deal with a challenge will be a product in large part of what preparation, education, knowledge, skills, judgment, experience, and wisdom, i. e., our "toolbox", we have available at the time to help us deal with the challenge.
  
  
• And there will often be, in connection with certain types of challenges, some "best practices" which have been identified as likely to be optimal ways of dealing with the challenge.
  
  
• Often these "best practices" aren't easy. And quite possibly one will not have the appropriate tools in his toolbox to effectively apply these "best practices." So people will need to make some accommodations and deal with some challenges as best they can with the tools they have, even when they don't necessarily have the some of the tool they might need.
  
  
• But still understanding certain "best practices" will at least give one a chance to develop and assemble the assortment of tools needed to manage a certain type of challenge in the best way.

 

[Kleanbore]

One last time, there is a huge difference between blurting out at the scene and providing a well thought out statement after consulting with an attorney.

That "well thought out...after..." would come to late if the officers failed to notice empty cases before they disappeared, or if they were not appridsd that the occupants of the yellow KIA Soul driving away had witnessed the event.

The 911 call is not part of this

The recording is part of the evidence.

If anyone here thinks Ayoob has the only correct answer, then they should follow his advice.

Mas is not alone among the recognized legal experts in this narrow field.


.

 

[hanno]

That "well thought out...after..." would come to late if the officers failed to notice empty cases before they disappeared, or if they were not appridsd that the occupants of the yellow KIA Soul driving away had witnessed the event.

The recording is part of the evidence.

Mas is not alone among the recognized legal experts in this narrow field.


.

Well then you are convinced. Good for you. You should follow his advice if you ever find yourself in the position of having to do so.

 

[Rule3]

OK, Lets review. How many can remember and list the 5 things that Massad said to say before remaining silent.?
WITHOUT watching the video again!

 

[Frank Ettin]

OK, Lets review. How many can remember and list the 5 things that Massad said to say before remaining silent.?
WITHOUT watching the video again!

Well I can. If you can't, you need to study and practice more. If you're not interested in doing that, that's your choice and not my problem.

 

[Kleanbore]

OK, Lets review. How many can remember and list the 5 things that Massad said to say before remaining silent.?
WITHOUT watching the video again!

"List"?

I do not want to recite anything.

I want to understand what is very important for the officers to know right then and there, and the very important limitations thereto.

 

[Rule3]

No need to get so defensive Geese.?? It was a quiz to see if anyone remembered.
Never mind then

 

[P89DCSS]

Mr Ayoob assumes the police are open-minded and only attempting to get to the truth. Unfortunately there are cops/detectives that make up their mind literally in a split second. I have a friend that followed what Mr Ayoob is recommending after shooting someone and ended up in a legal fight for his life. The detective testified that she was sure of his guilt when she walked in the door. Too bad Ken didn't know that and talked. The jury was out an hour before finding Ken innocent (self-defense). After a one week trial that ruined his reputation in a small town.

One of the reasons I no longer support the death penalty is all the falsely convicted death row inmates in Illinois from Cook and Lake county. Mr Ayoob better hope he never gets an interview with the likes of CPD Lt Burge (Google him if you want to be disgusted at how low law enforcement can sink). He was responsible for scores of false convictions include death row inmates sprung when DNA evidence proved their innocence. The lie detector administrator was in on it too.

Quite frankly you have to be nuts to talk to the cops without a lawyer. The jails are full of innocent people that trusted a friendly cop at the scene and talked. It happens at the highest levels of law enforcement. Ask General Flynn if you don't believe me.

 

[Kleanbore]

Mr Ayoob assumes the police are open-minded and only attempting to get to the truth.

He assumes nothing of the kind.

I have a friend that followed what Mr Ayoob is recommending after shooting someone

Do you mean that he said "that man was the attacker; that is evidence; those are witnesses; I will say no more until I have conferred with counsel", AND NO MORE?

Too bad Ken didn't know that and talked.

What on earth did Ken actually say?