To Speak or Not to Speak

[antarti]

You're at home with the family. Door is kicked in. Two masked men with weapons. You draw and fire. Two dead men in your front hallway.

No lawyer, but...

If you can establish just this much in a jury's mind (at least in this state), you're getting acquitted (or not getting indicted by grand jury). Regardless of what happened next, unless you did something really really dumb (like evidence tampering) that undermines the belief in the above quote, you're eventually walking.

I would let the 911 tape stand on its own, and shut up until the lawyer arrives. That was my friends advice (public defender) if I ever find myself in any legal fix, "shut up until I'm there, don't even say 'yes' or 'no'. Just nod and say 'lawyer is on the way' over-and-over until the questions stop or I get there".

 

[bogie]

You can see what happened, but I'd like to have my lawyer here so that everything is done right.

 

[CAS700850]

But the question remains unanswered, despite a serious change of tangents caused by some poor advice about chasing down bad guys and dragging them back into your house.

Assume it was a clean shoot. Assume you tell the officers "I want my lawyer." Assume the lawyer comes in and you tell the whole story to the lawyer. What now? I know that many of the criminal defense attorneys I know would advise you to not make a statement at all, even with them present. The theory is that at trial, you will be able to testify, tell your side of teh story, without worrying about having the initial statement used against you for cross-exam, etc. My thought, however, is that I don't want to go to trial. I want my case no-billed by the grand jury, or rejected by the prosecutor. I want to tell my story, get it on the record now, so that there will be no trial, with the hardships and expenses asscoitaed with a trial. And, since I'll be telling the truth, I don't need to worry about my changing story. Only reason I want a lawyer is (1) to buy me time to calm down, (2) to give a second opinion as to teh legality of the shoot, and (3) to keep me from doing something stupid due to adrenaline, etc.

Anyone agree, or am I already doing something stupid?

 

[PvtPyle]

But the question remains unanswered, despite a serious change of tangents caused by some poor advice about chasing down bad guys and dragging them back into your house.

Assume it was a clean shoot. Assume you tell the officers "I want my lawyer." Assume the lawyer comes in and you tell the whole story to the lawyer. What now?
Once you "lawyer up", that's it until your lawyers tells you to speak to them. They can't ask you anything else. They can continue the invesitgation at the scene, buit they can't talk to you.

I know that many of the criminal defense attorneys I know would advise you to not make a statement at all, even with them present. The theory is that at trial, you will be able to testify, tell your side of teh story, without worrying about having the initial statement used against you for cross-exam, etc. My thought, however, is that I don't want to go to trial. I want my case no-billed by the grand jury, or rejected by the prosecutor.
If it was a claen shoot, that should not be a problem unless you live in a anti-gun state. Then the DA may push it just to get it on the TV. But it is all going to depend on the findings of the police and the evidence at the scene as to it going to the grand jury or being ruled justifiable.

I want to tell my story, get it on the record now, so that there will be no trial, with the hardships and expenses asscoitaed with a trial. And, since I'll be telling the truth, I don't need to worry about my changing story. Only reason I want a lawyer is (1) to buy me time to calm down, (2) to give a second opinion as to teh legality of the shoot, and (3) to keep me from doing something stupid due to adrenaline, etc.
Those are all fine points, and fine reason to call your lawyer. That should be the second person you call in ANY event where there are serious consequences and/or the police are involved. It is your right to be represented by council, and perfectly acceptable and reasonable to want them present before making the statements. But don't be too anxious to say anything, or get your story out there. Let the process run it's due course.

Anyone agree, or am I already doing something stupid?As long as you are not tampering with the crime scene.....

 

[CAS700850]

Pvt. Pyle,

I am a D.A., and I'm not sure of teh answer to this. As the prosecutor who has handled cases. I can agree that physical evidence can determine a lot, but it cannot tell the whole story. Despite what C.S.I. tells us, the crime scene is merely the stage upon which the play occurred, it is not the story in and of itself. Let's say I answer the door to a well dressed man on a sunny afternoon, turn to say something, and the well dressed man forces the door opened with his shoulder and produces a handgun. I shoot him at close range, he goes down. Not thinking right under stress, I pick up his little handgun and toss it on the couch next to the phone in the next room. Police come, and what do they find? A guy in a suit lying in my front hall with a bullet from my gun in his chest (or more than one). No signes of forced entry. His gun, with my prints, on my couch in the next room. At this point, my statement is going to make or break the case, not the physical evidence.

The real problem is that in no case is the evidence ever as clear cut one way or the other, as we are saying. For instance, right now on my front door is what looks like an effort to force the door opened. It is actually where I let the ladder fall while taking down Christmas lights. I've prosecuted several burglaries where there is no sign of forced entry. The bad guy gained entry through an unlocked window or door. In good weather, with my kids outside playing, the door is often unlocked. The bad guy's gun. Hope his prints are on it when you kick it away. If you do well, he won't have gunshot residue on his hand to show he possessed the weapon. And I'm sure no one here is going to leave the gun close to the bad guy while waiting for the cavalry to show up. How do you explain the gun on the other side of the room, after you kicked it away? You don't get to unless you make some statement.

Having presented a few hundred cases to Grand Jury, I can assure you that questions like "how did the gun end up over there?" come up all the time? Counting on the Grand Jury or prosecutor correctly assuming when the detective answers "I don't know...he lawyered up right away." doesn't give me warm and fuzzy feelings. Hence my questions: (1) would the lawyer types agree with this and thus allow a statement, and (2) would the non-lawyer/potential jurors draw the right conclusions or do they want to hear an explaination from the shooter?

By the way Pvt. Pyle, once you lawyer up, you can re-initiate at any point. So, after my lawyer shows up and we talk things out, I can then indicate to the detectives that I would like to make a statement, and do so.

 

[El Tejon]

Talking? What's this talking stuff?

You don't talk to anyone--not the po-po, the detectives, the media, your clergy, your wife, Uncle Jimmy Joe, the neighbor's dog. You talk to no one but me.

You write down what happened for me and then we reinvestigate the case. I meet with the Prosecuting Attorney, I show him the 8 x 10 coloured glossies with the circles and arrows, I give the diagram with the stick figures, and I give him your version. You remain quiet, not a word to anyone. Be quiet, do not talk.

The police exist to gather evidence against the guilty, not to debrief the innocent. Your "exculpatory" statement will be used to hang you. Shut up.

 

[Chuckulator]

Pre Miranda silence can sometimes be used to impeach

IANAL but I am a law student who just finished Criminal Procedure. There are some cases where Pre Miranda silence has been used to impeach testimony of self defense. I don't think they apply in this situation, especially if you do as El Tejon says and have your lawyer do the talking for you, but if you wait until your testimony to bring up self defense that may be too late.

Examples

Jenkins v Anderson, 447 U.S. 231 (1980) – pre-arrest silence may be used to impeach – D claimed self-defense at trial but had not reported killing for two weeks.

Fletcher v Weir, 455 U.S. 603 (1982) – post-arrest, pre-Miranda silence may be used to impeach defendant who claims self-defense at trial.

 

[Coronach]

I'll take minor issue with what El T just said, while agreeing with the general gist.

The cops are there to find the truth and prosecute the bad guys. They're not necessarily there to bust the shooter. The problem is that they have no clue who the good guy is and who the bad guy is. You know you're the good guy, they don't. In an ideal world, where everyone enters the scenario without bias or time pressure and no one lies and all evidence is found and successfully examined, you could talk your head off and you'd be fine.

This, however, is the real world. People lie, evidence is missed, people have biases and political agendas, and adrenaline can lead you to say some unfortunate things. As such, your 'exculpatory' statement is a double-edged sword. It probably will help you out if you really are innocent, but it really might not.

Shutting the heck up, however, can only help you. So be polite, be courteous, don't be tampering with evidence (what a criminally stupid idea), give the basic facts ("I live here, he broke in, I was fearful for my life, I shot him.") and then lawyer up ("I'm sorry, I'd rather not go into any other details until I have spoken with my lawyer. I'm aware of my constitutional rights, and I'd like my lawyer to be present prior to any other questioning."). Resign yourself to going downtown for a few hours. Once you do that, there is suddenly no reason to chitchat, there is nothing to try and talk your way out of...you did what you had to do, this is part of the process, and so is talking to your lawyer.

Mike

 

[Coronach]

Jenkins v Anderson, 447 U.S. 231 (1980) – pre-arrest silence may be used to impeach – D claimed self-defense at trial but had not reported killing for two weeks.

Well, yeah. That's not what we're talking about, though.

Mike

 

[308win]

Talking? What's this talking stuff?

You don't talk to anyone--not the po-po, the detectives, the media, your clergy, your wife, Uncle Jimmy Joe, the neighbor's dog. You talk to no one but me.

You write down what happened for me and then we reinvestigate the case. I meet with the Prosecuting Attorney, I show him the 8 x 10 coloured glossies with the circles and arrows, I give the diagram with the stick figures, and I give him your version. You remain quiet, not a word to anyone. Be quiet, do not talk.

The police exist to gather evidence against the guilty, not to debrief the innocent. Your "exculpatory" statement will be used to hang you. Shut up.

IMHO this is good advice. I would expect my attorney to protect my rights as dilligently.

As for the original question about the beliefs of non-attorneys on the jury. If I was on the grandjury and the facts were as stated I would vote for a no bill. If I was on the trial jury I would not hold the refusal to give testimony against the person. If he chose not to testify then the facts are whatever evidence is presented by the prosecutor and defense attorney's rebuttal.

My younger brother is an LEO with over 25 years of service and his advice is NEVER, NEVER, NEVER GIVE A POLICEMAN A STATEMENT WITH OUT YOUR ATTORNEY'S BLESSING. The police aren't talking to you because they are bored, like you, or want to help you.

 

[LJWebster1]

I would not drink any alcohol after the shooting. You do not want to give even the hint of intoxication. I also would not call a lawyer before calling 911. That makes it appear that you have something to hide. I am a lawyer, but not a criminal defense lawyer. I just took my CCW class, and the instructor gave the "need medical assitance" advice. He said that when the cops come, they are trained to help a victim, and if they can't help you, the only other "victim" around is the dead guy. So they turn their attention to the dead guy. However, if you tell the cop, "I am really shaken up. I just want to get away from here. I think I need to see a doctor. Can I talk to you after I've seen a doctor?" and if you look upset, then the cop can help you, and he won't focus on the dead guy. While you are being assisted, your lawyer is on his way. Sounds like it could work. He also recommended that you make your weapon safe once no threats are present, by removing teh magazine and locking the slide back, but be prepared to jump back into action if more BGs come along.

Once your lawyer gets there, I don't think there should be any issue giving a brief statement. If this indeed was a good shoot, then your lawyer can help you get the facts straight and tell the police what happened. That way, you don't have this scenarior at teh Grand Jury:

Prosecutor: Officer, tell us what you saw.
Cop: I saw two dead guys in his house.
P: Why were they dead?
C: He shot them.
P: Why did he shoot them?
C: I don't know, he wouldn't say. His 911 tape said that they were intruders and they broke in, but when I asked him about it, he wouldn't say anything.
P: Has he given you a statement yet?
C: Nope, he tells me his lawyer told him not to.

So, if I'm on the Grand Jury, I'm now thinking that somethign is fishy here because he told 911 they were intruders, which would be a justifiable shooting, but now he won't explain anything. I'm going to agree that more investigation is needed, so this is now going to trial. Not too good for him, but good for his lawyer, I guess.

 

[Coronach]

The problem with this is that by the time it would go to a GJ, the accused would probably have had a chance to confer with his lawyer and would be in a position to make a statement. It's not like he's stonewalling.

Also, while it would be nice to win a no-bill at GJ, the real fight is at trial court.

Mike

 

[Hypnogator]

An interesting thread. I'm not a lawyer, but I am a retired Army Criminal Investigator, and have investigated a number of home-invasion type incidents, a couple of which involved shootings.

First off, as the wiser heads have pointed out, never, never,Never do anything that might be construed as tampering with evidence. Dragging the bodies into a room, posing them, placing the gun in their hand (even if it was when you shot them) will all be construed as trying to cover up something you don't want the police to find out about, both by the police and, later, by a jury. Rule of reason, here. If the perp is only mostly dead, and you remove the weapon from his reach to protect yourself, everybody will understand why. They won't understand why you found it necessary to drag the perp out of the yard into the house to keep him out of the rain.

I wouldn't want to take a couple of bracing drinks, in this instance. Cops don't like it when you try "cute" little tricks to evade questions. It doesn't really make much difference if a good shoot happened when you were drunk or sober (Are you to give up your right to self-defense just because you've been drinking in your own home?) If the shooting was justified, it was justified. What you may run into later, though, is the perp's family's lawyer inferring in a civil trial that you were stumbling around drunk with a gun and accidentally shot his client's poor choir-boy son/husband/etc.

While I respect El T's opinion regarding statements, I wouldn't want to be uncooperative to the extent of not giving a statement at all. By all means, call your lawyer and ask the investigator to wait until (s)he is present before making any statements. And yes, in the aftermath of a shooting, you're likely to be confused and excited. Best give only a very general account of what happened under the guidance of your lawyer, and wait at least a day before making a detailed statement.

If you have done nothing wrong, the police, indeed, are your friends. They will collect the evidence that will corroborate your statements and present it to the district/county attorney. If you try to lie -- about anything -- and they find evidence to refute your statement, they'll present that to the district/county attorney, too.

Frankly, how you proceed in a given self-defense situation will depend a lot on the political climate of the community in which you found it necessary to defend yourself.

 

[cropcirclewalker]

So, what do you do with his car?

Sorry if youse guys have to live like rats in cages in the big city, but after I have invoked the triple S procedure and the sheriff shows up and asks, "Have you seen Mr. Bubba Doe?", you respond, "No, Is that his car? It was sitting here blocking my drive a week ago last Thursday, so I just pushed it off to the side. I yam sure he will be by soon to pick it up."

"Me? No, I haven't seen him. Is he wanted for something?"

"Search my property? Sure, Just bring the warrant around and I will be happy to comply. What exactly are you looking for? Can I help?"

 

[FireBreather01]

"Officer - I was in fear for my life after this man broke into my house. I did what I had to do to end the threat. I'm sure you can understand the seriousness of this situation and I am going to cooperate fully with your investigation. But before I say anything else I am going to contact my lawyer and have him here while I give my statement. I just want to make sure my rights are protected."

 

[El Tejon]

Cor, O.K., maybe the police are not there to hang you every time but 99.999% of the time they are. I do understand that part of the police mindset is that everyone lies to them every day. However, one has to understand that mindset so that he may SHUT UP and not provide the rope by which the police will hang you.

If we are constructing grand jury hypotheticals, then I can come up with a scenario where your "exculpatory" talk-my-way-out-of-a-murder case statement will be used against you for every silence used against you scenario. BTW, not everyone here lives in states that have grand juries. Some live in states where prosecutors sign their names and off we go.

You will be excited. You may be hurt (line of fire goes both ways). You will be nervous and probably ill to your stomach.

You will think you are smarter and more clever than the police; you are not. You will not be thinking clearly or rationally. The next 60 years or so of your life, if not LWOP or the hot shot, hang in the balance of your talk-my-way-out-of-murder speech that you will now give after you just took the lives of two fellow human beings.

There is far too much to lose, be quiet.

 

[Carl N. Brown]

....drag them in....

To resurrect that part of the thread....

I have heard people give that advice, even to say if the intruder
turns out to be unarmed, get a knife out of the kitchen and put it
in their hand.

But I have had a lawyer, ex-county sheriff, two city detectives,
et cetera, people with real life experience. say No. Don't touch.
:wagging_finger_icon:
Altering a crime scene does not just hint suspicion, it screeEAMS IT!!

County sheriff advised us also to keep your statements short, sweet,
to the point: that the assailant put you in fear of your life and you
defended yourself. If you are honestly in fear of your life, adrenalin
fight-or-flight will kick in and your perception of time will warp. You
go motormouth in that state and you will say stuff that will not
add up to any listener. Minimum comments and bare facts.

In many jurisdictions, if a reasonable person would be in fear of their
life of the madman pounding on the door, such reasonable person
can shoot through the door if necessary. Just because an INTRUDER
has to be WITHIN THE PREMISES does not mean than an assailant
presenting credible threat of imminent death or bodily harm has to be
in the premises. Some few jurisdictions do say you can use lethal force
against any intruder, and that might be the origin of this folk myth:
to be justified as an intruder shooting, they must be within the
premises; but, almost all jurisdictions say you can use lethal force
against a threat of imminent death or bodily harm.

Self defense is not about killing technical intruders; it is about
stopping an imminent threat to life or limb. In fact, in some
jurisdictions, an intruder who would not be perceived by a
"reasonable person" as a threat of imminent death or bodily harm
cannot be legally subject to lethal force. Again, this depends a lot
on jurisdiction.

But in practically all jurisdictions, dragging a body across a threshold
or planting a weapon on a corpse is a no-no. As the movie title
says, Children Shouldn't Play With Dead Things.

This is not legal advice.

 

[KriegHund]

I REALLY dont think you should move a body. forensics do amazing things these days. Dont wanna mess with that.

Let em look around, but say nothing until you get legal representation.

 

[ArmedBear]

California's self-defense laws are pretty good. Our civil courts, however, are frightening.

In my own home, I wouldn't worry too much about being charged with a crime, provided I did everything right, which I'd have every intention of doing.

I'd be more concerned about being sued. Seriously. And I'm not sure what to do about that.

 

[Biker]

ArmedBear...

You may or may not like Ayoob, but "In The Gravest Extreme" is directly responsible for me surviving two civil suits and a few close calls. YMMV.
Biker

 

[mp510]

I am just a layman, but wouldn't calling the cops regarding a shots fired, two people down be a probable cause for them to process the seen. Let them have that one, and don't make a (fill in the space) of yourself.

 

[Aguila Blanca]

Assuming you are on trial in this situation, I would definately want to know why. The first thing I would want to know is, what is your connection to the dead guys? When I hear stories like this, my first thought is, drug deal gone sour.

Bad assumption.

You what they say about "assume." One should never do it.

A few years ago a family about 3 miles from me fell victim to a home invasion. Family was tied up, the husband/father beaten rather badly. They had no firearms for self defense, of course.

Drug deal gone bad? Not at all. The guy was a coin collector, and somebody got wind of the fact that he had [note use of past tense here, 'cause he sure doesn't have them now] a LOT of valuable coins in his house. Had he been armed, the scenario could have played out exactly as the original post laid it out.

It's unfair to "assume" that a home invasion represnts a drug deal gone bad. It's not illegal, but it is unfair. It goes against the basic premise that one is innocent until proven guilty.

 

[richyoung]

Just a short note here... before you call 911 make sure dead men are entirely in your home... if not drag them in... no kidding... law is worded such in most states that intruders need to be inside your home... if you shoot and they wander out and die you will be prosecuted differently that had they fallen dead inside your home...

Legal friend of mine told me about this point....

NEVER EVER alter evidence - and the crime scene is evidence! You think forensics can't tell where someone was shot, or if that junk gun or kniffe you plant on the corpse is really theirs, or a "throw-down"? CHANGE NOTHING - SAY NOTHING except the bare minimum necessary to ensure that ALL evidence is promptly and correctly collected - and if you CAN'T say nothing, (by far the best course until a lawyer arrives) TELL THE TRUTH.

 

[psyopspec]

Camp David, I'd much rather have the cops come into my residence and see all my violent video games sitting on the shelf than a body I'd dragged across the threshold. How would you intend to explain such a scenario when modern technology would easily prove your innocence (in regards to where the victim was shot) and your guilt (in tampering with evidence)?