"You have the right to remain silent..."

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pax

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Pretty good Ayoob Files in American Handgunner this issue (Nov/Dec 2003). Highly recommend you read it before responding to this thread, if possible.

In the column, Ayoob posits that the hero of the story shouldn't have remained as silent as he did at the scene. A quote:
"Finally, in a world where many investigators read silence as guilt, there are certain facts I firmly believe do need to be told to the police when they arrive on the scene. Suppose Emilio Plana had said this to Detective Tamayo: 'This man attacked my girlfriend and I. I will sign the complaint. Keyla and L.N. both witnessed it. He dropped his weapon right there. You know how serious this is, Detective, and you will have our full cooperation in 24 hours after we've spoken with counsel."

Had the defendent in this case uttered those words at the scene instead of invoking his right to remain silent, I think there is an excellent chance that the case of Florida v. Emilio Plana would have been no-billed by a grand jury that recognized it for the justifiable homicide it was, instead of resulting in an ordeal that cost an honest armed citizen a year and a half of his life.

Mark Seiden and I respectfully disagree on this. Mark feels that no person under this kind of stress can avoid being led down the primrose path to self-incrimination by a skilled questioner, and that by invoking his right to remain silent, Plana paid eighteen months of his life to keep the entire rest of that life. As a general rule, Seiden advises to always invoke your right to silence and never give a statement to the police following a shooting." -- Massad Ayoob
Click to expand...
So what do you all think? If you were involved in a self defense shooting, would you tell a responding officer that
  • You were attacked by this person (pointing him out),
  • that you were in fear for your life,
  • that the weapon he used landed right over there (pointing it out),
  • that you are too shaken up to speak further until you have spoken to your lawyer --
  • and then invoke your right to remain silent?

Or would you immediately invoke your right to remain silent, without telling the responding officers a durn thing?

pax

You have the right to remain helpless. Should you choose to waive this right, anything you do may be used against you in a court of law. You have the right to an assailant. If you cannot find one for yourself, the court will release one for you. -- Steve Munden, quoted by Jeff Cooper in his commentaries
 
The only cooperation the police are intitled to is my ID. I'm going to remain silent. Of course I'd rather be invisible & only to appear w/ my lawyer. The criminal justice system was made to be adversaral long before I was born. The police/DA are my enemy & a threat. Just as much as the BG was. They want to take my freedom. So no the police get no help from me.
 
The answer to your question depends on too many variables to be reliably answered here, Pax.

A shooting in a rural Texas county (population 800) is very different from a shooting in downtown Manhattan.

A self-defense shooting where the Deceased has a baseball bat at hand and has kicked in a door to a house, is very different from a self-defense shooting where the Deceased is laying on a public street with four of his chollos standing around.

Get to know your local officers and local criminal justice system, ask questions of yuor local prosecutors, and use that to help you make your decision as to what to do.

LawDog
 
One of the (many) psychological effects of being involved in a highly stressful situation such as a deadly-force encounter is the need/desire to talk about it. Combine that with the short-term memory loss that is also frequently present in traumatic events (you won't really have a clear recollection of the events for a few days), and many law-abiding citizens and cops alike get into trouble when their actions are otherwise justified.

If you can truly limit your statement to the police to the points outlined above, go for it. If not, keep your mouth shut and ask for an attorney. That may very well mean you will get booked into jail for homicide, but it will be easier to get that ironed out later than it will be to get statements you made at the scene suppressed. The police are not required to advise you of your rights if you are just talking & they're not asking incriminating questions.

Don't discuss the incident with your friends, either. They can be subpoenaed to testify about "confessions" you've made. And to be really paranoid, remember that while your spouse usually can't be forced to testify against you, they can always do so voluntarily.
 
Didn't read article, don't have access to.

I my life experiences pax, I would concur it depends on circumstances and variables. I was fortunate in a situation not long where an "event" occured in the presence of an attorney. I let him do the talking as he witnessed the event, the "victims" contributed their bit, then I said little but concurred with events. For those not aware: I was armed, but did not draw, used alternative methods to quiet situation.

I do feel "less is more" in situations...varibles define the "less".
 
Oh yeah, sure enough. Detectives like nothing better than to roll up on a shooting and have one of the actors make a statement that tells the detectives what their job is or how serious the situation is.

Quote: "You know how serious this is, Detective, and you will have our full cooperation in 24 hours after we've spoken with counsel."

Of course the detective will fully realize that there is little chance in hell that he will get full cooperation after the shooter gets counsel. All responses by the shooter, even thought the shooting was 100% justified, will be quite measured. Counsel will smartly have the shooter not say ANYTHING that could remotely be used in a negative manner, even though the information is 100% true and accurate.

Yep, nothing like telling the detective his business and then (most likely) telling him a lie that you will fully cooperate after you have counsel.

I would like Ayoob's writing a lot more if he didn't present worst case scenarios and then come up with hypothetical means by which the scenario would have turned out better. We don't know if things would have been better or not. Ayoob doesn't present those cases where the shooter did just what he describes and everything came out peachy. We have to take it from his Monday morning quarterbacking that his solution would have actually made a difference.

Somehow in this case, I really doubt it would have made a difference. There were two witnesses, who was not involved in the shooting and who were not charged that could have provided all the information necessary. One of the witnesses wasn't a victim either. So why the heck Ayoob thinks the shooter should make statements for all three parties and then invoke the right to remain silent for all three seem stupid. On top of that, the guy was NOT the custodian of the teenage witness and so had no right to speak for him.

It was my understanding that the right to remain silent involves charges or pending charges. The two witnesses, if they chose to go with the right to remain silent, could be faced with charges pertaining to impeding the investigation.

My CHL instructor here in Texas, along with some of the instructors at Thunder Ranch, point out that many people manage to talk themselves into getting arrested or getting faced with additional charges when they try to explain things right after a major event such as a shooting. Ayoob may be right that had the guy spoke to the cops, he might have been no-billed. Then again, he might have said something that would later come back and result in a conviction against him. What are the chances the guy was going to say ONLY what Ayoob thought would have been prudent for that particular situation? When it comes to that type of situation, the shooter is far better off remaining silent. While the police may think the silence indicates guilt, it is not going to be able to be used against the shooter in court. Like the old saying goes, "Some people are quiet and so people think they are dumb. Some people speak and prove they are dumb."

It is hard to twist silence around compared to the ease of twisting actual comments that may be taken out of context or misunderstood.
 
I'm with Mas on this one. How often do we ourselves form opinions based on the first information that gets to us? (Many of the threads on this board are proof of that). If all the investigator hears is that you just murdered some poor guy, unless the evidence is clearly unambiguous one way or another, how hard will it be for that investigator to start seeing you as a murderer? You need to plant the seed of your self defense strategy immediately, but all you have to do is plant the seed.
 
I think Double Naught is onto something with the possible reaction to the phrase "You know how serious this is, Detective, and you will have our full cooperation in 24 hours after we've spoken with counsel." regardless of the speakers intention, but I think Pax's summation is pretty accurate in what's needed as a minimum statement. Of course, realize that you are very likely to spend the night in jail regardless of how clear cut the situation is and that you will definitely be given the impression that "if you just tell us what happened, you'll get to spend the night at home in your own bed", recognize that that is only an impression and you will not do yourself any good by excessively engaging your tongue.
 
Telling the detective that you intend to cooperate in 24 hrs after having spoken to counsel is as much a lie as the detective telling you that if you make a statement you can go sleep at home. So my counsel took over and advised me to not cooperate the next day, but the intention was still there, thus no lie.

Jus like the detective who's LT rolls up and says "eh, we better take him in anyways, boys" (for prints or whatever.), thus over ruling the detectives promise...

Me & an officer traded lies one day. I got charged with a felony for it. When I brought up the fact that the officer outright lied also, I was told that an officer is allowed to lie or say anything he wants to in the course of his duties to gain cooperation from a 'suspect' and is not liable for the untruth of his statement. (At least here in Colorado)

Bottom line is that anything you say can and WILL be used AGAINST you in a court of law. This is not a game.

This is nothing personal to the responding detective. I would surely want to express or defend my rightious positioning in the incident, but would force myself to be mute and physically cooperative. Ayoob is a good man, but lets face it...those statements were after the fact armchair quarterbacking. What-ifs...
 
Every situation is different, but in general I would identify myself, state that I was in fear for my life, and ask to speak to my attorney before answering any questions. Be polite, but don't make any statements at least until you've given your body chemistry a chance to settle.

- Chris
 
When the police arrive on the scene, they are going to ask you a lot of questions. It's what they've been trained to do. It's their job. It's not personal and they aren't badgering you -- they are collecting information as they have been trained to do.

That doesn't mean you need to tell them a whole lot, or even tell them anything. But if you do decide to talk, it's important to know how to end the questioning without making enemies of the guys writing the police report.

When you're done talking about the basic facts, say something like "I'm really shaken up right now. Can I come down to the station tomorrow to give my full report?" Do not say, "I wish to exercise my right to remain silent," or "I want to speak to my attorney." When you say that, you are saying that you expect to be arrested right now. It's also adversarial. You haven't been arrested yet, so don't act or talk like you have. (If you are arrested, immediately claim your right to remain silent, ask for a lawyer and then don't say another word.)

When you phrase it as a question -- "Can I come down and give my report tomorrow?" -- you are doing a couple of things. First, you are finding out if you are under arrest, an important bit of knowledge. Second, you are articulating your willingness to cooperate and answer questions. Finally, you are closing the line of questioning and informing them that you are done talking for now in the least antagonistic way possible.

Don
 
As a LEO.....I'll give ya my .02 on the matter. The problem with waitng 24 hours to co-operate is that the mind does strange tings. The best time to get information or facts are right then and there. Given several hours or 24, the mind starts to .......I don't want to say make up............umm, perceive things differently.

Ask any detective (I'm not one) and they will tell you the same thing. Also, the thought pops into any LEOs head that........maybe this guys story isn't kosher.......or maybe he needs to work on his story, etc.

If its a self defense shoot........tell them what happened.......what the guy did, why you felt the need to do what you had to do. If you clam up and say nothing but your name...........and a someone says, they looked up and you shot the other guy........you'll probably end up arrested, booked, lodged in jail.........maybe, maybe not make bail........could end up sitting in jail until your preliminary hearing. Your prints and picture will already have been taken. Maybe........hopefully if the shoot was a good shoot on your part, this will come out at the hearing and the charges will be dismissed or dropped. Of course your entitled to a lawyer before any questioning.....but what if there are several people who saw the same this as this guy and the LEO does'nt have to ask you any questions....he'll just type the charges and go with the information he has. Remember....the LEO has no idea whether your a good guy.......or someone who decided to pop another guy. We don't have crystal balls to tell us who's thelling the truth.

However your prints will have been sent into the system. If you ever apply for a job and a background check is required........the charges will show up on your sheet. They might say disposition unreported..........but then you've got to try and explain that to your potential new employer.

I could go on and on. Do you really want to have to deal with this, just by saying your name and nothing else???? Now of course the above is a worse case scenario.........but not one I'd want to deal with.
 
Steve in PA said: "The best time to get information or facts are right then and there. Given several hours or 24, the mind starts to .......I don't want to say make up............umm, perceive things differently."

That seems at odds with much of the information available dealing with traumatic incidents. In "Deadly Force Encounters", Alexis Artwohl reports something like a 60% figure for memory loss and distortions among police officers involved in shootings. She goes on to say that the most accurate statements are taken within 72 hours of the event, but not, generally, immediately following the event. Locally, if an officer is involved in a shooting and he gives a statement before his Union rep arrives, the Union will not provide legal representation for him. If the police union feels so strongly about not talking without a lawyer present, what's that tell us?
 
You'll find half say to get the facts immediately.....the other half says to wait. In my experience (only a LEO for 6 years)......I've found the best info comes right away.......before people start thinking.......and pondering, etc about the situation.

Whos right? I don't know.......guess the truth lies somewhere in between???
 
Why are we even considering what a gunwriter and expert witness says, vs. what a trained and licensed attorney says? (In the article, he admits that the defense counsel he works for says "Say Nothing"). Ayoob doesn't win the cases, the lawyers do, using him as a tool.

As an investigator, yes, I want you to tell me everything, right now. Of course, I figure you are lieing, and I can use your lies now to discredit what you may say later (He said he only fired 3 rounds, when there were 12 pieces of brass from his gun on the ground.)

Even Ayoob admits that you may have auditory or visual exclusion, where you do not recall certain facts at the time. This has been documented in several medical texts.

In my critical incident, even though I had taught use of force for 9 years at the academy (and firearms/officer survival for 25), I gave no statement for 24 hours. I later faced a $30mil wrongful death lawsuit. My lawyer said I did the right thing, and it still took 5 years for the lawsuit to go away.

That guy tried to kill me.
I was in fear of my life.
I wish to talk to my attorney

ADD NOTHING
 
I will just say this and then shut up :) "Many more people have been convicted by things they said than by keeping their mouth shut." This is fact and doesn't even acknowledge that any statements you make will be released to the attorney who is going to try to take your shirt thru civil proceedings even though you beat the criminal rap. Since discretion is not given equally to everyone, I think blanket statements on how to act are a little ludicrous.
 
Sem, "that man tried to kill me (or my wife or child), I was in fear of my (or her) life or serious bodily injury (check local statute for possibility of grievous), and I refuse to speak without an attorney present. Thank you, sir."

You are not smarter than the police and the Prosecuting Attorney (or Commonwealth, State's, District Attorney--check local listings for CLEO in your area). The police are not there to debrief the innocent. How many investigations of completely innocent people do the coppers do? One in three or four thousand?

Remember, coppers live (professionally) in a world of bad stuff. After all of two nights on The Job they realize that everyone is lying to them. You, standing in front of them, with a smoking BlasterMaster Tactical Elite, have just taken the life or inflicted serious bodily injury to a fellow human being--if you look like food, you will be eaten (wise man in Tejas). Well, if you look like a mope, you will be arrested and maybe prosecuted (moron in Lafayette).

You are a terrible witness at this time. Can you remember all the details what happened in sims training? How about sparring? "O.K., Kirk, now remember when he circle punched you and you bong sao'ed then upper cutt to his throat?" No, [gasping for air] when did THAT happen? I upper cut him? Really, when?

Why provide the prosecution statements to prepare their case? Why give up your last at bat? Why not review the state's case and then provide your testimony later?

Let the coppers piece it together. If you take a ride, you take a ride until the magistrate's court in the morning.

From my experience in LE, if it is a SD case, 99.9%, the detectives will be in the Office of the Prosecuting Attorney, telling the PA to his face (and his young deputy) that this is clearly SD and no reason to prosecute. And, if the deceased is someone they know (usually not a good thing), they will be talking excitedly and smilingly about "cosmic justice" or using other dark cop humor.

In the meantime, shut up.

Edited to add: I, er a friend of mine, just bought the gun rag pax cited. I believe Mas' comments here are based on speculation. The shooter in that case made multiple mistakes and talking would have dug him in deeper. Excellent work by the tilecrawler in that case (po-po did not even talk to the juvy)--yes, stuff like that happens daily. Owning a gun does not give you immunity to shoot down Eeevildoers like the Phantom or Batman.

Mas does an excellent job with his LFI classes and I highly recommend them.
 
Ayoob has used the case of the State of Florida v. Luis Alvarez to note that that modifications to a gun can get you in trouble and make the case go against you in a shooting. Contrary to his twisted view, it was not the modification of the gun, but the statement made by Alvarez.

Holding a suspect at gunpoint, Alvarez shot the suspect in the back and killed him. At the time, he commented that another officer bumped his arm and the gun discharged. So, he was charge with manslaughter and this went to court. The gun was thought to have discharged because of the lightened trigger, hence Ayoob's contention modified guns will cause cases to go against you. HOWEVER, between his statements and court, the officer managed to get fellow officers to all read from the same script and the story change to Alvarez shooting the suspect because the suspect made furtive movement. Later, the officer noted that he had no idea why he said the gun discharged when he was bumped as he meant to shoot the suspect. Long story short, the light trigger pull issue and manslaughter charges were for naught as this was not a manslaughter case but one where the officer intentionally shot the suspect who made furtive moves and as such, modified trigger pull did not matter.

see http://www.thefiringline.com/forums...ght=snake+ayoob The case was State v. Luis Alvarez out of Dade County, Florida from an incident on December 28, 1982.

Alvarez may have had an overly modified gun that was so modified that the hammer dropped when he was bumped. That would make him liable for the shooting death of the suspect held at gunpoint, but contrary to Ayoob, the problem was not the light trigger, but a gun that did not function properly. But that all passed with the story change to the shooting being intention.

Right after the shooting, true or not, the officer made a statement that got him in a lot of trouble, saying the gun discharged when he was bumped. True or not, he would have been much better off if he had never uttered a word. Under the stress of the incident and surprise, he said something that WAS used against him and this was a person fully aware of his rights and fully familiar with the need for legal counsel. For that time after the shooting, he apparently lost his ability to measure his words to the proper statements. In fact, he probably thought he was doing himself a favor by noting the gun discharged from what he believed was no intentional act on his part.

Ayoob means well, but some of his stuff is hokey and now just seems to be unfounded Ayoobian dogma to be regurgitated time and time again in various books and gun rags.
 
Ayoob has used the case of the State of Florida v. Luis Alvarez to note that that modifications to a gun can get you in trouble and make the case go against you in a shooting. Contrary to his twisted view, it was not the modification of the gun, but the statement made by Alvarez.
Click to expand...

Funny. When Mas taught my LFI-1, Alvarez's statement was the point he focused on, not the modification.
 
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