Procedure AFTER a SD shooting

[Kleanbore]

Anything you say can and will be used against you. Given that indisputable fact, the best option is to say nothing. It can't directly help you. But it also cannot hurt you.

Zero is greater than any negative number.

This is simple math.

1) Shut. Up.
2) If you're inclined to say anything, refer back to #1.
3) There is no rule #3.

Good advice, for most things. However, I question it for most situations that will require an affirmative defense.

Some people have said that they have received that same advice from attorneys. If an attorney gave me that advice I would ask a few questions:

• Do you recommend that I follow that advice even in a situation in which you will not try to establish reasonable doubt as to whether I commited an act, but will in fact admit it and then try to provide evidence that the otherwise unlawful act was justified?
• (If the answer is yes) Is there not a risk that said evidence will not be available to us if I do not point out the witnesses while they are there to be pointed out?
• How would you intend to deal with that risk?

I happened to discuss the subject with a retired trial attorney yesterday. To him it is a no-brainer.

Identify yourself as the victim, identify the assailant, point out the evidence and the witnesses, and then shut up.

Or ask your attorney to explain why you should not do so, in terms that you can understand.

 

[psyopspec]

Kleanbore, those are very relevant questions to be answered at such time as you meet with your attorney. Exercising your rights to counsel and invoking the 5th immediately after a shooting is a plan that gives you and your attorney time to get together and come up with the best strategy for your defense. Invoking right away doesn't mean you won't make a statement at any time, or that you won't cooperate with the investigation, or that you won't answer any questions - just that you want to consult with your attorney prior to any of these things.

Or ask your attorney to explain why you should not do so, in terms that you can understand.

Because people are stupid. Suspects are stupid, clients are stupid, and when they open their mouths they tend not to stop, particularly when they want to tell the story of how they are innocent, they may be in shock, and the nice policeman seems to be on their side.

 

[Kleanbore]

...those are very relevant questions to be answered at such time as you meet with your attorney.

And that's far too late, I'm afraid.

Exercising your rights to counsel and invoking the 5th immediately after a shooting is a plan that gives you and your attorney time to get together and come up with the best strategy for your defense. Invoking right away doesn't mean you won't make a statement at any time, or that you won't cooperate with the investigation, or that you won't answer any questions - just that you want to consult with your attorney prior to any of these things.

True..but you have missed the point entirely.

It also means that you will not have pointed out which among the people standing around after the police arrive, or moving away rapidly, witnessed the incident. It means that you will not have pointed out, for example the empty case that may later disappear that came from the assailant's gun.

Do you really want to rely on those witnesses coming forward on their own, or the police finding that case before a kid pockets it?

Since your record, your fortune, and your personal freedom depend entirely on your ability to produce evidence in support of an affirmative defense, just what do you intend to do if perchance neither you nor the police have the ability to find that evidence after it has dissipated?

That doesn't mean that you should ever answer any questions without counsel, but it does mean that you should not refrain from pointing out, at the only time you may ever have the opportunity, material facts that may be the only things that may stand between you and conviction.

 

[sjohn26]

I know not to speak, but what about the family???

In a SD shooting - I know enough to lawyer-up and shut-up -------but, in the event my family is with me during the incident (wife, children, etc.) what bearing will their statements have. I can guarantee they will be emotional - and say anything and everything (hopefully in my favor). Will their statements be a detriment to MY case??

 

[psyopspec]

but, in the event my family is with me during the incident (wife, children, etc.) what bearing will their statements have.

Anything they say to the cops becomes evidence, just like any other witness statements. It's important to remember though that you don't need to be arrested to have Miranda apply to you. The Miranda rights, including shutting up and getting a lawyer, apply to anyone in America at any time. Reading someone's rights upon arrest is just a quick Constitution 101 brushup so that they can't say they didn't know. Teach your wife/kids that they don't need to make any statements.

 

[Rockwell1]

Your family isn't any more obligated to make a statement than you are.

Please read my sig line.

 

[chieftain]

"Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."
U.S. Supreme Court Justice Robert Jackson

Have no fear, there are a bunch of people here that think they know better than a Supreme Court Justice, Private Attorney's who practice criminal law, LEO's, and everyone else that works full time in the Criminal justice system.

They all give the same advice ****!.

But the genius of America is that some folks who do not do these things full time, know much better. Ask them.

Simply amazing.

Go figure.

Fred

Stupid should hurt

 

[Rockwell1]

Have no fear, there are a bunch of people here that think they know better than a Supreme Court Justice

I've noticed that

 

[t165]

I think I have said this before but what the hell...I'll say it again. I was instructed at the police academy by experienced LEO's and instructor's with law degrees that if I was ever involved in a incident resulting in serious injury or death to another person while performing police duties to not make any statements until I contacted an attorney. And not to sign any "Waiver of Miranda Rights". Also, if I was ordered by a superior officer to make statements prior to consulting an attorney that I demand the questioning be recorded. That way I could be not terminated for disobeying a direct order through department hearings and the statements would not be admissable in a court of law. Then to begin and end all replies that I was being forced to answer questions against my will prior to being allowed access to an attorney. Even if I felt I was 100% justified the academy staff felt I should first seek legal council.

For citizens invloved in a self defense incident I would defer to U.S. Supreme Court Justice Robert Jackson. Basically ****.

 

[tasco 74]

lots of great advice here.... i guess the only thing i would add is DO NOT LIE TO YOUR ATTORNEY...... for any reason........

 

[Kleanbore]

This has been an excellent discussion. People have gotten into a lot of trouble for talking to the police, and it's a good thing to educate them in advance. All of the advice I've seen on the subject is to not make any statements to police before conferring with counsel. There's one minor nuance in that, however.

People have also gotten into a lot of trouble after what they have said was an act of self defense because they could not provide the evidence necessary to support an affirmative defense. The fact of the use of force is not only incontrovertible but will be admitted by the shooter. What must be done is to provide evidence that the act was justified. The shooter's word alone would not constitute very strong evidence at all.

Mas Ayoob addresses that in his advice on what to do after a shooting:

1. When the police arrive, identify yourself as the victim and the person you have shot as the assailant, and tell them that you will sign the complaint.

2. Point out witnesses before they disappear.

3. Point out evidence--his weapon, his shell casings, whatever, before it disappears.

4. Tell the police that they will have your cooperation after you have conferred with counsel.

5. Ask for medical attention.

Mas explains that if one goes to step 4 first, he cannot perform steps 2 and 3. That may prove determinative.

Now, while Mas is not an attorney, he has more experience with homicide cases than most of us will ever have, and many attorneys have spoken very highly of Mas' coverage of legal issues in LFI-1. Has anyone ever heard an experienced criminal trial attorney recommend against the above advice? Really?

Yes, many people have heard the advice, "don't make a statement to the police without the benefit of counsel". I think that is Step No 4 above.

In Post 52, I said that if an attorney advised me to say nothing to the police without the benefit of counsel, I would ask the following questions for the purpose of clarification:

Do you recommend that I follow that advice even in a situation in which you will not try to establish reasonable doubt as to whether I commited an act, but will in fact admit it and then try to provide evidence that the otherwise unlawful act was justified?

(If the answer is yes) Is there not a risk that said evidence will not be available to us if I do not point out the witnesses while they are there to be pointed out?

How would you intend to deal with that risk?​

Someone replied by suggesting that those would be appropriate questions to ask after the shooting!

I don't think so. I've asked an attorney (not the one who would handle a criminal case for me, however) and he said it's a no brainer.

One more time: Has anyone ever heard an educated, authoritative statement to the effect that Mas' advice is not appropriate for a self defense situation? Or are they simply trying to apply advice that is generally very appropriate to the rather unusual special case of an affirmative defense and assuming that it defines the best course of action there? I'm afraid it may not prove to be that simple.

Best to understand whether the different circumstances might color the advice, I think.

One way to get smarter on this is to go here:

http://www.armedcitizensnetwork.org/

Joining will cost some money, but the third video contains advice from an attorney relevant to this subject.

You can find Mas Ayoob's advice by clicking on the links without joining.

 

[maskedman504]

Now, while Mas is not an attorney, he has more experience with homicide cases than most of us will ever have, and many attorneys have spoken very highly of Mas' coverage of legal issues in LFI-1. Has anyone ever heard an experienced criminal trial attorney recommend against the above advice? Really?

Yep. Attorney and Legal Professor Jame Duane. My Lawyer. Supreme Court Justice Roberts.

http://www.youtube.com/watch?v=i8z7NC5sgik

 

[Kleanbore]

Masked Man, I've seen that and sent it around to a lot of people. It's good advice.

Do you really think that it is counter to Mas' advice? Skip that, you obviously do. I don't.

In a self defense case, your attorney is going to admit that you used deadly force--a criminal act, but for the existence of extenuating circumstances, the evidence of which he is going to have to present. I'm sure you understand that.

How would he conduct your defense should all of the witnesses and exculpatory evidence have disappeared?

You apparently think that pointing out witnesses entails the same risk as describing what happened or answering questions. Do you think that there just might be a difference? Have you considered the possibility that you just might actually mitigate a potentially serious risk by pointing them out? If the police don't corral them at the scene before they disappear, who will? Superman?

Have you heard the Chief Justice advise against pointing out witnesses?

Did you see anything to that effect in the video?

How does your attorney answer the specific questions that I said I would ask an attorney regarding what to do in a self defense case?

Have you discussed those minor issues?

Ask him again.

 

[psyopspec]

Kleanbore, the reason I tend to side with Justice Roberts, even in light of the situation you present is as follows:

You've just been in a defensive shooting. Cops respond. You tell them you won't make any statements without an attorney, but you'd like to point out the evidence at the scene with them. As you're taking officer friendly around, you point out the perpetrator's weapon and say "This was the gun that he tried to kill me with." You take a couple steps to where a few empty cartridges lie. "These are the cartridges from the 5 rounds I fired at the perpetrator." You point out a few other things as necessary - the damage to the door he broke down if in the home, for example.

You get together with your attorney, prep a statement, and all is well. When it comes time for evidence sharing, your attorney reviews the prosecution's case. Turns out the investigators found 7 expended casings from your weapon. This means that in the aftermath of the incident you lied to the cops. It wasn't intentional; hell, how could it be given that you were probably in shock, your body and mind were trying to shake the adrenaline dump, you were worried about your loved ones, you had the emotional and financial costs of the impending trial looming over you, not to mention wrestling with the fact that you just ended a person's life. Still, that statement you made about the shells will be used against you in a court of law.

I think your head is in the right place, and what you're saying is absolutely logical, but a human mind after a critical incident doesn't tend to think logically. However, if you have a lawyer and you consider him competent, and that's his advice; well, he's the lawyer, you're the client, and I'm just some guy on the internet.

 

[Vern Humphrey]

You take a couple steps to where a few empty cartridges lie. "These are the cartridges from the 5 rounds I fired at the perpetrator."

I'd rather stick to, "These are cases from the rounds he fired at me."

Be very leery about giving specific numbers, times, or distances -- for one thing, under great stress you will experience changes in your perception of such things, and you don't want that to trip you up later.

 

[Rockwell1]

Did you see anything to that effect in the video?

Yup, "Nothing that you say to the police can help your case."

 

[psyopspec]

Be very leery about giving specific numbers, times, or distances -- for one thing, under great stress you will experience changes in your perception of such things, and you don't want that to trip you up later.

Exactly my point, Vern. If you shutup, you can't say anything that will be used against you. Think about that. It becomes physically impossible for you to hang yourself in the legal sense. It takes no skill, no presence of mind, no intelligence, and no cleverness, all of which you may or may not have after a shooting regardless of the God-given talent you think you have now.

 

[Vern Humphrey]

Or, as F. Lee Bailey said, "Even a fish wouldn't get in trouble if he'd keep his damn' mouth shut."

I'm not 100% sure that I agree that you shouldn't point out things that are n your favor, but I'm beginning to be persuaded.

 

[Kleanbore]

...a human mind after a critical incident doesn't tend to think logically.

That's the risk, and I agree that it's a real one.

If you shutup, you can't say anything that will be used against you.

That is certainly true, and it is probably the most important factor in most investigations.

And while it is generally true that nothing you say can help you, I think that in the case of an affirmative action defense with volatile on-scene evidence, what the policemen don't see and remember, which might well be what you would have pointed out, may prove to be that which would have helped you.

I just returned from the range, and I raised the question with my CCW instructor who was there. He's not a lawyer, but he does teach the state required class, and about four hours of that is devoted to legal issues.

His comment was intresting. I had heard it before!

He said that he thinks it's fine to follow Ayoob's advice, of which he is well aware, but that you have to follow it completely--point out the witnesses and shut up. They don't teach that because too many people may not have the discipline. Or as has been otherwise described,

Because people are stupid. Suspects are stupid, clients are stupid, and when they open their mouths they tend not to stop, particularly when they want to tell the story of how they are innocent, they may be in shock, and the nice policeman seems to be on their side.

Yep.

Now, just to clarify, the only time I think the occasion might prevent itself to have to point out witnesses or evidence at the scene to reduce your risk would involve a parking lot encounter or something similar.

The greatest concerns I have had, other than losing the battle, using deadly force prematurely, or hitting a bystander, are (1) the absence of any witnesses or exculpatory evidence, (2) the disappearance of any such witnesses or evidence that may have existed (and that's what my discussion is all about), or (3) the sudden appearance of hostile witnesses.

In a home invasion situation, I think the situation may be different--what is there to disappear?

Even then, however, if "one of 'em got away" or if I thought there was another intruder in the basement, you can bet that I would say so before shutting up, rather than concluding that a law professor's lecture on the dangers of talking to the police and on the Fifth Amendment had been intended to advise against it.

 

[Woodsmaster]

If I'm ever in a SD shooting situation I'll **** and call my lawyer so he can tell me what really happened.

 

[Rockwell1]

And while it is generally true that nothing you say can help you,

You need to watch the video. It is not generally true that nothing you tell the police that is beneficial to you can be used to aid your case, it is always 100% of the time true that nothing you say to the police can be used to benefit you.

It is a rule of evidence and Dr. Duane explains it very clearly.

 

[Kleanbore]

It [the fact that nothing you say to the police can be used to benefit you] is a rule of evidence and Dr. Duane explains it very clearly.

Yes it is, yes he does, and I understand it fully. It applies to what can be introduced into evidence from what you tell the police and other investigators.

Thus it's generally true that what you tell them will not help you. Why?

Because the police also serve the function of protecting and examining the crime scene, gathering evidence, and identifying witnesses and potential witnesses, after they have arrived at the scene.

And every bit of that evidence, including the names of witnesses, will be available not only to the charging authority and potentially, to prosecutors, but also to the defense--by law.

And it is extremely likely that the police will be the only people on the scene to do that.

But they will have arrived after the fact in a volatile and evolving situation. That witness who is now driving away in the green minivan will not be known to them unless someone points her out. And who might that be? And if you do point it out, it may well help you a great deal. And if you don't, her identity may never be known.

That has absolutely nothing at all to do with the introduction into evidence of any statement made by you to the police. It has everything to do with your making known to them facts that they cannot otherwise know, that will enable the capture of relevant information that will be made known to both sides--information that might otherwise never be known, and may prove vital to the defense.

Capisci?

I have watched the video. I think I understand what Dr. Duane means. I also think I understand what he does not mean.

 

[t165]

We always got a good laugh when individuals tried to do the investigative work for us. Pointing out evidence or witnesses. I cannot count how many times I responded to arguments, fights, traffic accidents...ect, and one or more of the involved parties pointed out a witness for us and told us to go talk to them about who started what or said what first. Then, when we do talk to them the witnesses their story does not match what our finger pointing involved party told us...then their tune changes. Don't listen to them. They are lieing...they got it wrong. And we would smile at them and say "you told us they seen what happened and to go talk to them".

Be careful what you wish for. The witness may not have viewed things quite the same way as you and their testimony could well put your butt in jail. Very seldom do witnesses stories match up completely. Many prosecutors hate to rely on eye witnesses due to the likelihood of inconsistency. The bottom line is it is your butt on the line after a SD shooting...educate yourself and do what you think is best for you.

 

[Sebastian the Ibis]

there are a bunch of people here that think they know better than a Supreme Court Justice

I do, 4 justices dissented in Heller.

However, I'm sure that every single justice would advise their close family to ****!!!!

There is no debate, it is a bad idea. It's like running out of a tornado shelter in a tornado. Nobody should ever do it under any circumstances, however some people just cannot do nothing, they have to to something no matter how stupid doing it is.

That witness who is now driving away in the green minivan will not be known to them unless someone points her out.

1. So, write down the license plate and tell your attorney.
2. In a SD situation you being the only witness is a good thing. AS LONG AS YOU ****!!!

 

[Demitrios]

Eightball says

I've heard that when you ask for medical attention, to say you "wish to be treated for shock."

Thoughts on that?

As a former EMT I can tell you that even as trained as we are we cannot diagnose, which means you asking to be treated for shock will result in the question, "How do you know you're in shock?" which in turn will lead to more questions. Like 4v50 Gary said, the police are not your friends, they are there to do their job and will do it as efficiently as possible. Another good piece of advice, given to me by my brother before he himself was cop, "Never volunteer information.". I can give you 100 scenarios and over 1000 ways they can go wrong. TexasRifleman hit the nail on the head, "I need medical attention and I would like to speak with my attorney please." and say nothing more. Straight to the point, it gives you a chance to step away from a bad situation to regroup without making things worse for yourself.