To Speak or Not to Speak

[CAS700850]

I'm aiming this at the other lawyer types on THR, but welcome everyone's input, as everyone else could be in the position of a juror in a case such as this.

Scenario: 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. Call 911. Police arrive. You holster up or lay down the gun as the police arrive, and point it out to the officers so it can be secured as evidence. Now, there are two questions you will be asked at some point in this investigation.

1. Will you give us consent to process the scene/search the area/search the home?

2. Will you give us a statement about what's happened here?

For the lawyers, what do you advise on these questions. The easy answer is (1) get a warrant and (2) I want my lawyer. On the plus side, you are protecting your rights and avoiding getting a bad or incriminating statement on the record. on the down side, the cops will get a warrant of they ask, as no judge is going to deny a search warrant for evidence/firearms for the scene of the homicide, much less a double homicide. And, your non-cooperation may motivate the cops to become adversarial when that may not be in your best interests.

You can split the two. Knowing they will get a warrant you can (1) consent to the search and (2) indicate you want to cooperate but would like to speak with an attorney first. Keeps things friendlier, makes you look cooperative, and makes sense.

And, as the lawyer, assuming it looks like a clean shoot, do you advise your client to give a statement or remain silent? My thoughts as a lawyer and a prosecutor is that I would want a statement on the record about what happened. Why? When the prosecutor reviews the case, I want him or her to know my side of the story, and I want to look like I'm not hiding anything. This may help convince them to deny charges, or may be something to help the Grand Jury decide to no-bill a case.

For the non-lawyers, assume you are a juror. You hear of a double shooting in what appears to be a home invasion (masked intruders, weapons, maybe even forced entry). Do you want to hear the home owner's side of the story? Do you want to hear him say he was in fear for himself and his family? Do you want the cops to say the homeowner was fully cooperative and had nothing to hide? Would remaining silent look bad to a juror, as I have heard?

 

[Stebalo]

I am not a lawyer type, but for what it is worth

1. Will you give us consent to process the scene/search the area/search the home?

I don't think you can prevent them from securing and searching the scene even if you wanted to. If you did try, it's not going to look good to the grand jury or ultimately, jury. Beyond the scene of the crime (outside of the entry way where they forced their way in) I don't think the police have any business searching much less going. If you did try to interfere, they might arrest you for obstruction of justice or interfering in a police investigation. I believe obstruction requires you to actually conceal something from the authorities and it is a felony at the federal level.

2. Will you give us a statement about what's happened here?

Not without my attorney present. Nor would my spouse. Especially if this occured here in New Jersey. Taking my weapon (and right to have one) is a higher priority to the powers that be than putting home invaders away.

 

[Soybomb]

As a non-lawyer:

I could be off, but I don't think you have the option of insisting on a warrant to allow the police to investiage the shooting scene, its open for business. Similarly I don't think any lawyer would advise you to give a statement of any sort without him present. You can talk later with counsel present.

 

[redneckrepairs]

Non Lawyer here too but my response would be feel free to do anything you need to to process the scene and please excuse me while i call my attorney he will be here soon and you may direct all further questions to him ( mine would do a " housecall " for me on that) and then only offer coffee as needed untill he turned up .

 

[MikeIsaj]

As a non-lawyer;

I don't think you can keep them from the scene and I don't think they need a warrant. When you called 911, you invited them onto your property and into your house due to the nature of the call. Once they are legitimately there and see compelling evidence of a crime having been recently committed, I don't think they need further permission. Just my reasoned opinion.

I would not make a statement immediatly. The best advice any lawyer will give you in a situation like that is, shutup, be quiet, don't say anything about the incident and call your lawyer. I have read elsewhere in this forum that after a shooting you should ask for medical help because you don't feel so good. And you won't be lying. In addition to making sure the situation hasn't harmed you, it buys you time to get your wits about you and talk to your lawyer.

 

[WT]

If the case goes to criminal trial, I would assume that the prosecutor feels that the facts don't match the shooter's account. Something doesn't add up. As a juror, I would want to hear the shooter's explanation. I would probably hold it against him if the shooter did not testify.

 

[Camp David]

You draw and fire. Two dead men in your front hallway. Call 911...

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....

 

[Biker]

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....

Follow that advice and you'll be cellin' up with Lamar and Bubba.
Biker

 

[Camp David]

Follow that advice and you'll be cellin' up with Lamar and Bubba.

Try explaining a self defense shooting, in your own home, when the attacker, after being shot, runs out of your home and collapses in the neighbor's yard! I guarantee you'll be prosecuted even though it was a clean shoot!!! So advise I was giving was sound... if you shoot them in your home make sure they fall in your home... ask around Biker... check state laws....

 

[Biker]

Camp David...

Try explaining a self defense shooting, in your own home, when the attacker, after being shot, runs out of your home and collapses in the neighbor's yard! I guarantee you'll be prosecuted even though it was a clean shoot!!! So advise I was giving was sound... if you shoot them in your home make sure they fall in your home... ask around Biker... check state laws....

First off, tampering with evidence is major bad juju! It's not hard to tell where a man was shot using GSR evidence and blood splatter just to begin with. Even a rook can see a blood trail. No offense Friend, but as Jorge might say, "It ain't rocket surgery!"



Biker

 

[El Tejon]

1. I would advise against any obstruction justice and move stuff about.

2. Shut up. Shut up now, shut up later, shut up when the cop offers you a cigarette, shut up when the detective pats you on the back, shut up in between those times, shut up when the medics are asking you questions, shut up when they want you to come downtown and "clear your name" or "straighten things out". In summary and to be brief, shut up.

3. I want my lawyer.

Don't care if it's the Pope or Mopey McMope, shut up, lawyer up.

 

[redneckrepairs]

oO( el tejon speak straight there )

 

[Mad Chemist]

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....

A trained eye, a bit of string, and a laser level will indicate if the bodies have been moved. This may or may not have been good advice 40 years ago, it certainly is not good advice currently. If you do this the crime scene detectives will discover it and you will be charged will evidence tampering. If the tampering charge sticks it will seriously damage your credibility.

The police won't need a warrant to enter or process, but may need one to search the rest of the house.
You already have a recorded statement in the form of the 911 transcripts. I would repeat what I told the 911 operator to the responding officers (two masked men, forced entry, shots fired), and offer to meet with the detectives , with my lawyer present, and make an official statement for the record.
BTW, I'm not an attorney.
JH

Sorry about the cross-post. I'm a little slow on the keyboard.

 

[Father Knows Best]

Disclosure: I'm a lawyer (licensed in AZ, MI and TN), but I don't do criminal work, so this is a little outside my area of expertise. For legal advice, of course, you need to consult your own lawyer -- one who is licensed in your jurisdiction and with whom you can establish an attorney-client relationship.

My general advice, however, is to be cooperative and pleasant with the police, but not to offer or commit to anything without your lawyer present. Explain to the officers that you intend to cooperate fully with the investigation, but you can't/won't give a statement or consent to a search without speaking to your attorney, first. Ideally, you will have called your attorney, already (after calling 911 and while waiting for the police to arrive). If your attorney is any good, he will have explicitly ordered you not to talk to the police, and then jumped in his car to come meet you. You can simply tell the police that your attorney is on his way and has forbidden you from speaking to them until he arrives.

In terms of a warrantless "search", the police do have the right as I understand it to secure the scene to prevent it from being disturbed while a search warrant is obtained. They can also seize any evidence that may be in "plain sight." I don't believe that they can start going through your closets and drawers and taking evidence. Keep in mind, however, that they may feel the need to do a sweep of the structure to make sure there are no threats present (BG's hiding, etc.), and in the process they may seize evidence that is in plain sight. So ... if you have a marijuana growing operation or meth lab or kiddie porn collection in your basement/garage/attic, you best not shoot anybody on the premises.

 

[lbmii]

Camp David,

Ok let's think this one over:

You have a clean in your house shoot and the guy runs outside and dies.

You get the bright idea to go drag him back inside.

That ole veterian cop that shows up to the sceen will know within 3 seconds that you are not qute being straight.

The police find the blood splatter outside and various clues that a body was dragged across the porch and into the house. That next door neighbor that peeks out at you all the time, done went and peeked out at you again. "Yes officer I looked out and saw that guy over there dragging a body into his house".

The police conclude that you shot the guy while he was outside and you then tried to set the sceen up to show different.

Regardless a jury will quickly add up that somthing is not quite right with your story and conclude you need to think about some things in jail for a while and you really don't need any money left in your bank account.

I would think that the best thing to do would be to tell in a concise way to the responding officers exactly what happened then shut the hell up.

And know that when you call 911 that the call is recorded.

 

[HankB]

make sure dead men are entirely in your home... if not drag them in... no kidding...

No, I wouldn't tamper with evidence, nor would I try to conceal the gun I used. Even if I'm smarter than the responding officers, I'm not necessarily smart enough to beat the sum of all the institutional knowledge of all the LEOs, their supervisors, forensic investigators, the DA, etc., all working together, trying to pick apart my story. One little mistake tampering with evidence and I'm in deep you-know-what.

As a crime scene with dead BGs in the hallway, I'm pretty sure the responding LEOs don't have to have a warrant to secure the scene. I wouldn't grant permission to search the rest of the dwelling, but I'd make no attempt to physically prevent them from taking a look around . . . but I for d@mn sure wouldn't open any locked drawers, cabinets, etc. for them to go through.

Nor would I provide any information to anyone beyond my identity . . . at least not before I've had legal counsel. Any statement I eventually make will be through my attorney. (Even if the LEOs and DA genuinely want to pin a medal on you, there's always the possibility of civil proceedings.)

Requesting transport for medical reasons sounds like a good idea.

 

[cavman]

1.)If they are going to arrive they will need to secure the scene. I don't think any warrant is required.

2.)My Permit instructor actually gave specific advice on this very scenario and here is what he said in a nutshell.

"Because your adrenaline is probably going through the roof, seriously going through the roof, don't answer anything in that state; except that "you are willing to cooperate but will only answer questions after consulatation with your lawyer"".

He said that there are numerous examples of people/cops/soldiers after a traumatic event (killing, fighting for your life, ect) there are wildly inaccurate memories. Because of that, my instructor stated, "best wait until you have calmed down and talked things over with a representative."

It was also his opinion that the investigating officers would do their best to have you talk then and there; but again he had his Permit class repeat out loud "I want to cooperate; but will not say anything further until I have spoken to council."

I think that it is sage advice to wait before speaking until the dust has settled.

 

[TexasRifleman]

Try explaining a self defense shooting, in your own home, when the attacker, after being shot, runs out of your home and collapses in the neighbor's yard! I guarantee you'll be prosecuted even though it was a clean shoot!!! So advise I was giving was sound... if you shoot them in your home make sure they fall in your home... ask around Biker... check state laws....

Try explaining why you moved 2 dead bodies.

If you had a "legal friend" give you this advice, I think you need some new friends.

 

[TexasRifleman]

Doubletap

 

[CAS700850]

I wholeheartedly agree that moving/changing the crime scene is bad. In fact, it's criminal. Here in Ohio, it's called Tampering with Evidence. And, I am a prosecutor, so I know of what I speak.

El T, assuming you are consulted, and from what you are told, you believe it to be a good shhot, do you allow your client to make a statement? And, I know "allow" is not the proper word, but you know what I mean. If so, do you try to arrenge for time to pass for a cool down, or do it fresh so it's more contemporaneous?

 

[mfree]

After the call:

Sit down, shut up. Have the gun not on you but within a few paces in the open. The responding officer isn't going to like having to disarm you, but it's there if the two dudes on the floor had friends. When you go to sit down, sit on your hands... touch NOTHING. Don't try to justify anything, don't try to explain yourself, that's what your laawyer's for.

 

[lbmii]

If you sit on your hands would not an officer be concerned that you might have hold of a weapon? I would think you need your hands in plain sight.

 

[gremlin_bros]

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....

drag them back in ??????
not just no but hell no major bad idea if there is evidence you moved anything in a crime scene the prosecutor will have a field day with this the idea of if you changed this what else did you change to the scene. i have seen this happen at a shooting the if the man hadn't moved the body he would have been just fine. they didn't get him for the shoot but for tampering with a crime scene so don't touch anything. please for your own sake don't move a thing let the cops see the truth.
as for the search i would consent and then lawyer up for your own safety.
let me make it 110% clear here i am not a lawyer but have been involved with law enforcement for a long time and have an associates degree in police science and in several classes we went over the drag the body back in thing several times if not hundreds which is where i learned of the law regarding tampering with a crime scene and the fact it has happened and the consequences regarding it.

i have also placed the incident i went through here for you to see as usual the news messed up some of the details but it does give you the idea if you wish look up my first post in ther to get the full story.

 

[another okie]

I don't think there's a 100% best way to always do this.
Sometimes it might be best to say "They broke into my home and I was afraid for my life. I need an ambulance. (and then shut up and ask for your lawyer)" The problem is that few people have the self-discipline to shut up after saying even a few words and police officers are highly skilled at getting people to say more.

 

[ceetee]

After securing any visible weapons, the officers will search the house. Most home invasions like this happen because the people in the house are known to the bad guys as having large amounts of drugs, cash, jewelry, or other valuables. The detectives will be looking for anything to indicate a motive for the home invasion other than "random accident." They'll also just want to make sure that all perps/residents are accounted for, and nobody's going to pop out with a weapon.

I'd want to give just the barest bones of what actually happened, and if the police want more details, I'd make them wait until I've "Calmed down".

An acquaintance was once involved in a similar situation... he got out a bottle, and poured himslef a couple stiff ones. He told the police that he felt the need for a couple drinks to help himself calm down after the incident, and that he also felt that it wasn't proper for him to give a statement while "under the influence"...