Will a prosecuting attorney use your concealed permit against you?

[Crashola]

You forgot an important part of Rule 404:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, . . ."

At least with respect to internet postings, many of these exceptions arguably apply -- motive, intent, preparation, plan, absence of mistake or accident.

 

[Pat McCoy]

It would seem to me that having held a CCW for 10-15-20 years, and only now using the firearm would show the court that the holder had a great deal of patience in not going around "shootin things up".

 

[Cosmoline]

It was a joke. Hence the

Gotcha. Edited accordingly.

 

[Dallas239]

At least with respect to internet postings, many of these exceptions arguably apply -- motive, intent, preparation, plan, absence of mistake or accident.

I guess with the wrong prosecutor and a pliant judge anything is possible in the trial court. But I would think that it's going to be an extreme corner case where such postings are not prejudicial, not offered to show character or propensity, not factually related, but are still relevant. If anyone has a counter example, it would be really interesting to see. My mind is a bit fried right now so maybe I'm just not thinking creatively enough.

 

[abrink]

I think it would be something you could use against him. Simply say it was a registered handgun and i have a permit to carry. I'm legally armed. I shot your client to protect my life and no other reason. I SHOT TO STOP HIM.

 

[GEM]

Jeff is quite on the money. If you are going to trial, it means that a lot of people don't think it was the good shoot that people chortle about.

There is a great deal of research on juries and there is evidence that weapons type and intent can influence them in ambiguous situations. I'd guess a permit alone won't be an effect if it was clear. But if it was clear, you wouldn't be in court.

A permit, plus a history of internet commandoitis or other inflammatory statements might just do you in. A permit alone probably won't as it was issued by the state for the purpose of allowing you to carry a lethal instrument.

 

[Elza]

Jeff White: I understand that [in Texas] they set the corpses of the previous nights trespassers on the curb with the garbage each morning.

They made us stop. The garbage men complained that lifting so much weight was causing back injuries.

 

[GuyWithQuestions]

Saying that someone got a permit shows that they wanted to kill someone is almost like saying that a police officer becomes a police officer because he wants to beat up on black people. I'm just taking Zundfolge's quote from the Interesting LEO perspective on citizens concealed carry thread. If a police officer hits someone with a baton, is it valid to say that because the guy/or woman became a police officer, that shows he/she was looking forward to this moment and so they should get in legal trouble for unreasonable force? Becoming a police officer is perfectly legal, just like getting a concealed permit is. Why would a state issue a permit if it isn't?

 

[BruceGibson]

I doubt it. At least here in my little slice of Florida. What it would come down to is "was the shoot justified?" Even if one were not permitted, the ultimate test would be justification. License, or permit would be secondary.

 

[Double Naught Spy]

So my question is: if you're ever in a deadly self-defense situation and have to go to court, is a prosecuting attorney going to try to use "He had a permit so that means it was premeditated murder! Lock him up and I want a raise for another one prosecuted!" Would that ever turn into a persuasive argument, or would the attorney be basically grasping at straws and the jury would realize that? Would the judge step in and instruct the jury to ignore what the prosecuting attorney just said, since concealed permits are perfectly legal in the first place?

What is the purpose of this query? Are you afraid that getting a CCW will make you easier to prosecute and hence are considering not getting a permit?

The prosector can argue just about anything. With that said, the prosecutor would be hard pressed to argue premeditation based on the permit if the shooting is within your home or on your property where you would not require a permit. It seems this would only apply to situations where a permit is required to carry. Then again, if your shooting was premeditated, it would be an illegal act. Why would you bother to have a permit to carry legally if the purpose of carry was to illegally shoot somebody?

If you are going to worry about that, then you will need to worry about the type and name of the gun used, name and type of the ammo used, your clothing, the car you drove, etc.

If you drove your car to the place where the shooting occurred, was driving your car there a sign of premeditation of the shooting as well? How about your DL to drive the car. Does it also indicate premeditation?

 

[GuyWithQuestions]

What is the purpose of this query? Are you afraid that getting a CCW will make you easier to prosecute and hence are considering not getting a permit?

I already have a permit and carry it chambered and cocked everywhere. I'm just worried because you hear people say, "I don't know about those people with concealed weapon permits". It sounds quite unjust because those who get permits are statistically less likely to be convicted of felonies later on and the permit shows that they actually wanted to be law abiding by going out of their way to get a permit.

I was wondering how likely it is that a prosecutor would even bring something up as irrelevant like that and how you could demonstrate that irrelevancy to the jury, because they need to be on your side. At the same time, I also carry Federal hydra shok (because they're less likely to ricochet around hitting others or overpentrating thus hitting others). I can almost imagine a prosecuting attorney, who doesn't care about prosecuting innocent people, saying that I had bullets with little shafts inside their hollow tips and that means I had bad intent.

With that said, the prosecutor would be hard pressed to argue premeditation based on the permit if the shooting is within your home or on your property where you would not require a permit.

That's one thing you always worry about. On http://www.gunfacts.info it says that although most self-defense gun uses happen inside the home, most violent crime happens outside of the home, which means that concealed carry outside of the home is necessary for self-defense. I haven't really checked into gunfacts.info much to see how credible its research is, but what it said does make sense. If I carry my concealed carry weapon with me everywhere I go, there's a good chance that if I do use it, it'll be outside of the home.

 

[frankie_the_yankee]

IMO, if a state has a process for people to get permits, they can't hold it against you if you went out and got one. I would expect the defense attorney to object to any such attempt by the prosecutor to make an issue of it, and I would expect the objection to be sustained.

In fact, the defense attorney may well want to introduce into the record the fact that the defendant did have a permit in the course of establishing that he had a legal right to be carrying the gun at the time.

IANAL, so this isn't legal advice.

From what I can tell living in TX these last 7 years, self defense shootings don't seem to end up in court all that often as compared to other states. Mostly, the police don't even make an arrest on a good shoot. And it is seldom that a grand jury fails to no bill a LAC acting in what appears to be self defense (from news accounts).

 

[Jeff White]

Cosmoline,
I'm not redacting a thing. If you read what I wrote carefully, you'll see that I said that having a CCW permit could figure into the charges if there were other factors involved.

There is a story in this thread you should read:
http://www.thehighroad.org/showthread.php?p=4009881

I would bet that investigators went through everything they could find on both parties involved in that road rage shooting while they tried to figure out who to charge and what to charge them with. You can bet money that past conduct (hothead, braggart, prone to violent anger) was all looked into. If either was your typical gun shop or keyboard commando and the investigators discovered it, it would be a factor in if charges were filed and what the charges were and how they would be prosecuted.

Jeff

 

[Double Naught Spy]

Okay Jeff, help me out...

It depends. I really only think your possession of a CCW permit would figure into it if there were other things discovered that made it appear that you had your permit to facilitate shooting someone.

How would getting a permit facilitate shooting someone?

 

[Jeff White]

How would getting a permit facilitate shooting someone?

So you could legally carry your weapon while looking for someone to shoot. Add a permit and a serious case of gun shop or internet commandoitis together with a questionable shooting or even a good shooting that looks questionable and you are probably going to be in trouble.

Showing a cavalier attitude towards the use of deadly force by running your mouth or your keyboard is going to cause you problems if there is any doubt about the circumstances of your use of deadly force. It would be real easy to spin the fact you had a permit into, you had a permit, not to defend yourself, but as a license to look for trouble.

Jeff

 

[mekender]

Same goes for idiot postings on the Internet. Unless they are factually related to the actual crime you are charged with, they are likely either irrelevant, or inadmissible character evidence.

you have to consider that if a situation gets that far, then the prosecutor does not have enough evidence to convict you without it... subpoenaing your internet logs from your ISP, then subpoenaing your post history form THR and other boards... thats a pretty time consuming and extensive step... i would dare say that if you EVER got that information brought up in court, then you had most likely committed a VERY HIGHLY questionable shoot and were basically at the point where the prosecutor was searching for every possible reason to prove criminal intent...

at that point, you probably shot someone in the back... waited 3 hours to call 911, washed the prints off the gun, cleaned the barrel, called your attorney, changed clothes and dozens of other things that make you look really suspicious... in fact as someone with a history of working in IT security for ISPs i could perhaps see such information used if they were charging 1st degree... or if they were looking for a reason to charge 1st degree even though they already have enough to convict on a 2nd degree charge... in a SD situation, the shooter would have to have a lot of evidence against him pointing to criminal intent before internet info would come to play...

 

[Jeff White]

mekender said,

in a SD situation, the shooter would have to have a lot of evidence against him pointing to criminal intent before internet info would come to play...

How many criminal investigations have you conducted?

They aren't going to subpoena anyone's internet postings. They are going to serve a warrant on his home and office looking for evidence of a connection between the shooter and the deceased. Why? Because random violence between strangers is not common. The posts will be found. It's not going to matter if it's 1st, 2d or manslaughter, they are going to try to find out everything they can about the people involved. SO they can determine what to charge. Internet commando postings could make the difference between manslaughter and no charges or manslaughter and 2d degree.

We haven't even touched on what the plaintiffs attorney will do with them in the civil suit where the rules of evidence are much different.

Jeff

 

[mekender]

How many criminal investigations have you conducted?

ive only been on the receiving end of the subpoenas... 99.9% of them come from the fraud and the sex crimes divisions... in 3 years of working for ISPs ive only heard of one that came from homicide... and that one involved a suspect that was later convicted of kidnapping and killing a young female child...

 

[Cosmoline]

We haven't even touched on what the plaintiffs attorney will do with them in the civil suit where the rules of evidence are much different.

How many civil suits have you litigated? How many in limine motions have you filed? Any argument can be raised by any party to a litigation, just as anyone can sue anyone for anything. But it's pointless to go around living in fear of such a thing. Just as it's bizarre and pointless to worry about how a theoretical DA might make some issue over what ammo you used or when you got your carry permit. In theory anything could happen, but as a citizen carrying a firearm we need to worry about what's in front of us right now, not what weird evidentiary nonsense the DA or plaintiff's attorney might try to pull. To deal with the latter set of problems you go out and get yourself a good lawyer. To worry ahead of time about all the potential trial issues is beyond the ability of anyone, and absolutely fruitless for an armed citizen.

Do not avoid getting your carry permit because of this hogwash, please.

 

[Jeff White]

Do not avoid getting your carry permit because of this hogwash, please.

Where are you getting that I'm advocating people don't get a CCW permit? I'm advocating not running your mouth or keyboard about how tough you are and how anxious you act to get into a gun fight if you carry a gun.

Maybe the law is enforced differently in Alaska and no one ever looks into what kind of relationship existed between two people involved in what looks like a mutual combat situation to find out what really happened and who should be charged. But here, those things are looked into in an attempt to bring charges against the person who was at fault. I guarantee you that if you have a public image as being the meanest guy in the valley and you are involved in an altercation where what happened isn't clear, you are much more likely to be charged and your tough guy persona is going to affect the case.

Jeff

 

[mekender]

Maybe the law is enforced differently in Alaska and no one ever looks into what kind of relationship existed between two people involved in what looks like a mutual combat situation to find out what really happened and who should be charged. But here, those things are looked into in an attempt to bring charges against the person who was at fault. I guarantee you that if you have a public image as being the meanest guy in the valley and you are involved in an altercation where what happened isn't clear, you are much more likely to be charged and your tough guy persona is going to affect the case.

as it probably should be... and asking questions of the neighborhood can and probably will happen... but all i was saying is that it usually wont go to the level of getting warrants to get your posting info... just them going through your computer doesn't grant them access to your online accounts... my accounts and posting history and visited web pages dont store on my computer after i close my browser... so to track that info, it would take a warrant for my ISP, then a warrant for my online accounts...

interviewing friends, family and neighbors doesnt cost hardly anything... seizing computer records requires a computer forensics expert, a computer lab, computer lab time, and a hard drive that can be stored as evidence, etc... and if there are no indications that all of those computer methods would reveal anything before they are started, they probably wont look into them too heavily... now if your uncle tells the detective that you spend a lot of time on the computer and that you are constantly talking about your heated discussions on a forum... well those might come into play...

 

[joab]

but all i was saying is that it usually wont go to the level of getting warrants to get your posting info.

But that has happened ,here, in the past

Much much different circumstances and I don't believe a warrant was needed because forum cadre cooperated ,as they should have, and as just about any other forum will

 

[mekender]

what were the circumstances? was it a truly justified SD shoot? or was it a street level grey area?

got any posts for it? id be interested in seeing that...

 

[joab]

what were the circumstances? was it a truly justified SD shoot? or was it a street level grey area?

Definitely not SD and no gray area on that

The point is that an investigation can include searches into your internet activities if the powers that be want it to

It can be as simple as finding your user name on your comp and doing a post search on that name

 

[Zoogster]

You forgot an important part of Rule 404:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, . . ."

That is worth repeating because they will use it to show character and they will do it under the legal premise of one of the other reasons.

They most definately will attempt to use it against you. That is thier job, to prove you are guilty. To do so they will provide examples of why you are likely to have made the decision to do what they say you are guilty of. They will create an image of your character favorable to a conviction.

A good defense attorney will simply make it a non issue. They will show that such a person is in fact more law abiding than the average individual, and give examples of countless upstanding and respectable people with such a permit.

To think a prosecutor or attorney will not use every fact available to thier advantage though is naive.
They will likely try that angle at some point in hopes that it tips the scales in at least some juror's mind.

Obviously you only got a legal license to have a deadly firearm because you wanted to shoot someone, wanted to be ready to shoot someone, and were looking for any excuse to shoot someone.

If you stopped to ponder what a prosecutor could say about most choices in life you would do very little. You would not be a free man. Living life and making choices comes with risks. You minimize those risks as an intelligent person, but you don't stop excercising your freedoms because of them.

A prosecutor would say the same about a person that kept a firearm at the ready for home defense if he felt it would help his case. Anything that the jury cannot relate to will be tossed in to help sway them his direction.
Since only a limited number of people have a license to carry a firearm, it is very likely he will feel that is an angle to include. The average juror will have no personal experience with legaly carrying, and it may be news to them it is even possible.