An Interview with Andrew Branca, Part II
by Gila Hayes
At the 2015 NRA Annual Meeting, we were fortunate to spend several hours with attorney and author Andrew Branca (shown to the right, lecturing at the 2015 RangeMaster Tactical Conference), while he was in the Network’s booth in the exhibit hall. We shared many of his thoughts and explanations about the law of self defense in the May edition of this online journal, but owing to the length of our conversation with him, broke the interview into two segments, the second of which we continue this month.
In the May edition, Branca defined uniformity and variations in self-defense laws from one state to another, and in the course of that discussion explained how statutory law (sometimes called blackletter law) is put into application on real situations by court decisions, which then becomes case law. He cited another influence that is less accessible to ordinary citizens than statutory or case law and that is the instructions that a judge gives a jury before their deliberations. We return now to our Q & A format to continue learning from Andrew Branca, starting with the subject of jury instructions.
eJournal: In our interview last month, you mentioned jury instructions that are not readily available and not well understood, unlike the statutory law you talked about earlier, which we may not always understand correctly but can easily access. Who develops jury instructions and what influence do they have on the outcome of a jury trial?
Branca: Most states these days have standardized jury instructions. Usually the highest court in the state has put together a commission of judges and lawyers and they spend years developing standardized jury instructions that are the starting point for jury instructions in every criminal court in that state.
eJournal: Only the starting point?
Branca: In any criminal trial, both the prosecution and the defense can say, “Your honor, the standard jury instruction doesn’t quite fit the facts of this case. The jury will find it confusing. Can we tweak it to take account of this variable or that variable?” The prosecution is trying to tweak it to make it more likely to get a conviction and the defense is trying to tweak it to make it more likely to get an acquittal. The judge has to decide what seems reasonable under the circumstances.
Judges in states that have standard jury instructions really do not like to tweak them unless there is a very good reason because it tends to get reversed when appealed to a higher court. Remember, the standard jury instructions were written by that higher court. That highest court thinks, of course, that they know best and they don’t like trial judges messing with it. But sometimes you have to change it because of the facts of the case.
There are other states that literally have no standardized jury instructions. RI is one. You cannot find standard jury instructions in RI because they don’t exist. They have standard jury instructions for civil cases, but not one for criminal cases. That means that when you go into criminal court in a RI court, they do what used to be common in all courts. At the end of the trial, the parties propose jury instructions. They draft their own and they propose them to the judge and they have to come to an agreement what will end up in the jury’s hands, but there’s no standardized starting point. It is not tweaking them; it is writing them de novo, based only on case law.
eJournal: Is this good or bad?
Branca: I’d rather have people who really had an aptitude for writing jury instructions rather than just whatever criminal prosecutor happened to be in court that day–whether they were having a good day or a bad day–doing it in a very compressed time frame. Standard jury instructions are written over a period of years. In a criminal trial you have a few hours or maybe a day to come up with jury instructions for your case so it is not as thought-out and researched. You can’t do things like investigating how do other states do it. You do not have the time.
Standard jury instructions have great strength, but there’s a modest weakness that I feel obliged to point out. I mentioned [in last month’s interview] how hazardous statutes can be because you don’t have the courts’ interpretation; you don’t know how the courts are actually applying that statute. Jury instructions are in effect an amalgamation of the statutory language and how the courts have applied it in the past. They take the case law, combine it with the statutory language, and they compress it all into the jury instructions.
When you read the jury instructions, the language is not usually the statutory language word for word, but is the statutory language and whatever the courts have added over the course of history when applying that statute. It provides you with a much more accurate sense of how that statutory language will actually be applied in the courtroom and in that sense they’re great.
The weakness in jury instructions that people need to keep in mind is that the jury instructions are not in themselves law. They are just an “image” of the law. The statutes are law; the court decisions are law; the jury instructions themselves are not law. So whenever you come across a jury instruction that’s contrary to a statute or case law decision, you need to be very careful, because if it is wrong, it won’t apply.
It could be wrong because either the statutory language has changed but the jury instruction has not been updated since the new statute was adopted, or a new court decision has happened and the jury instructions have not been updated to reflect that new court decision. What you need is a really competent defense attorney who knows the law in his area and knows whether or not that has happened. Unfortunately, attorneys do not always know.
eJournal: How can the citizen evaluate the skill of their hometown’s hotshot criminal defense attorney for defense of legitimate use of force in self defense?
Branca: It’s really difficult. There’s a huge variance in the quality and capabilities of criminal defense attorneys. Like any other trade, some are great attorneys and some aren’t. You need to be able to make an assessment yourself, make a judgment yourself, on how comfortable you are with that attorney, about his skill set, about his knowledge of the area. It is a very subjective call. There is no report card you can look at for an attorney.
People need to keep in mind that it’s not as if you get arrested and you call a lawyer and you’re stuck with that lawyer for the rest of your case. The first lawyer you get is almost unimportant. Any lawyer can go to your arraignment and get you bailed out or at least request bail and handle that part of it.
Once you are out of jail, then you can spend much more time talking with lawyers, calling them up, meeting with them. Most of the time you can meet with attorneys free the first time. I’d suggest that you ought to know the law of self defense in your jurisdiction to the greatest extent possible, including, for example, buying The Law of Self Defense so you can have an intelligent discussion with your attorney.
If you are starting as a blank slate, any criminal defense attorney is going to sound like a genius. But if you know what the statute numbers are, what the jury instruction numbers are, what the relevant court decisions are, you can ask him, “Well, how does this court decision apply to my situation?” If he can’t answer in substantive detail, maybe he does not know as much about self-defense law in that jurisdiction as you’d like him to know. You don’t want him to be learning on your dime.
But if you know the relevant questions, then you can get a good sense if this guy seems to know what he is talking about, if you like how he presents, if this is the guy you want standing up in court to represent you. But you need to be informed in order to do that. That is the only way I know of.
eJournal: You mentioned the different skill levels your lawyer needs at your arraignment compared to post-arraignment representation. What’s the timeline?
Branca: You do want, within a day or two, a very competent criminal defense attorney on the case. This is really important. This is where the Network comes in, by the way, with the money. You need an attorney and his investigators out looking at the evidence and getting witness statements as close to time zero as you can get. People’s recollections do change. They change because they come under political influence or they come under social influence or they just remember things differently over time.
Sometimes those stories change in ways that are very harmful to your claim of self defense. If the only statement you have is the later, harmful statement, there is little basis on which you can attack it. But if you have a statement from the witness the day after it happened that is contrary to their later statement, then you can attack the credibility of that later harmful statement and say, “Wait, wait, wait! The day after, you told us a completely different story.” It discredits that later statement. But to do that you need that earlier statement, so you can hold them to account. That means you need the attorney’s investigator out there.
eJournal: At what point does an expert like you join the team to provide specific guidance about the law of self defense?
Branca: My interaction tends to be shortly after indictment, well before the trial. I am hardly ever in courtrooms at all anymore. Here’s what happens: the defendant is hoping he is not going to get indicted, but then he gets indicted, and now we know that this is going to be a big deal.
Before you’re indicted, there is always the possibility that your lawyer may convince the prosecutor to dump the case completely. Once you are indicted, that prosecutor is all in. That’s why he put you in front of a grand jury and got the indictment. He’s decided he is going to push ahead. You are going to trial if he has anything to say about it. He has made the decision; he is making the political investment of resources to put you on trial.
That is when the defendant gets really scared. He knows now that he is going to trial. At that point, typically, either the defendant or the attorney will go online and start researching for self-defense law and my name pops up and then they call me.
Typically, the attorney tells me the narrative about self defense and I’ll explain where I see the strengths and weaknesses, where I expect the prosecutors will attack, how they can build up their defenses against that attack, lines of argument they can make–especially around more subjective areas like reasonableness–to flesh out and strengthen the narrative that they are going to bring to counter the prosecutor’s attack. Once I help them with their narrative, then the case is really back in the hands of the lead counsel in that case and my involvement goes away unless they have more questions.
eJournal: If, as we discussed earlier, that local attorney hasn’t defended that many legitimate self-defense cases, your input and guidance sounds like a life-saver, with you going in and pointing them toward the key points from statute, case law and jury instructions applying to their state...
Branca: Also from other states, I can say, “These are cases from other states that have a similar self-defense law framework to yours.” There may be another state that has a very similar framework of laws where there’ve been cases and self-defense narratives that an attorney won’t discover looking at his own state’s trials, but that would be just as effective in his state, because the legal framework is so similar. You can always do a motion to include any law you want from any state, but its not controlling in that court.
I’m trying to help the lawyers develop a compelling narrative of innocence that falls within the bounds of the law in their jurisdiction. For instance, say the case is in WY, I can say, “This sounds to me a lot like a case in AL where the legal framework is similar. Here is the narrative they used–maybe some of it may be effective here.”
eJournal: That level of complexity reminds me of the recommendation that ordinary citizens are likely to draw incorrect conclusions so we’re advised to just put our worries in the hands of the attorneys. A different school of thought encourages us to learn as much as possible to recognize if the attorney is knowledgeable in this area of law. What do you think?
Branca: I think it is incumbent on anyone who thinks they may ever use force in self defense to understand those aspects of the law that impact tactical decision-making: how they will physically defend themselves. That is the area that is within your control.
At my seminars, I tell people by the time you leave this seminar five hours from now, you will know far more about the law of self defense than almost any attorney you will ever run into. But that does not make you a criminal defense attorney! There are huge areas of the law that make or break defense cases that have NOTHING to do with the law of self defense: the rules of criminal procedure, the rules of evidence. We don’t talk about that stuff at all in my seminars; those things don’t affect your tactical execution.
Those are areas that unless you wish to be an attorney or it’s an area of personal interest, a person who carries a gun really doesn’t need to worry about. That stuff you
can leave to your lawyer. What are left are the laws that govern the actual use of force against another person, and for that we do have to take responsibility. Fortunately, it’s not that much.
The basics that you need to understand to keep yourself well away from the cliff-edge of self-defense law are not that hard to grasp. Just like there are four rules of gun safety, there’s really just five elements of the law of self defense: innocence, imminence, proportionality, reasonableness and avoidance. From my perspective, there is quite a bit of variance because I cover all 50 states, but if you are in an individual state or a couple of border states where you need to know two or three, there’s not that much variance, because as we mentioned earlier, these things tend to fall into a limited number of options.
For example, in your state, you have the element of avoidance. It has a certain flavor in this state and it has a different flavor in that state, but you don’t need to know the eight different flavors, you only need to know the two that are relevant to you.
One of those flavors will be the more conservative or restrictive. If you’re in a jurisdiction where you don’t know the flavor, always assume that it is the worst flavor for you and guide your conduct on that basis. That’s how you stay furthest away from the cliff edge.
For example, on the issue of avoidance, if you always retreat before you use any degree of force, deadly or non-deadly, you’re safe even in MA and you’re also safe in every other state on that issue. Do that for every other element and that provides the greatest degree of security. What we don’t want people to do is to say, “Oh, I’m in FL and it’s a stand your ground state, so now I can stand my ground.” If you don’t have to fight, you don’t want to fight.
eJournal: Avoidance should always be the bottom line. Still, when it is time to defend ourselves, we cannot hesitate and that is where it is so important to know what is allowed and what is not. We do need to be knowledgeable about the self-defense laws where we are. You’ve helped a lot of people develop that knowledge, so please remind us where we can learn more about your work.
Branca: I have a lot of videos on You Tube. The only video people pay for on my website, www.lawofselfdefense.com is when we take one of our live seminars and we convert it into an online training course. For TX, for example, I think there are twelve different class segments anywhere from ten to thirty minutes in length: one for each of the five elements of the law of self defense, followed by how to talk to the police, defense of others, defense of property, building a legally-sound self-defense strategy, and so on.
We update the online training regularly to make sure it is current. We thought about doing DVDs early on, but DVDs are like a book, frozen in time and it cannot be updated so the information may not be correct in three or four years. Specific cases or statues can change. I decided to do it on line, so when something changes, we re-record that chapter and the information is up to date. We do that all the time.
On our website we have all of the jury instructions, all the statutes and all the relevant court decisions are in there full-length. They are not actually copyrighted, because they are public domain material, so we collect them and make them readily accessible. (See http://lawofselfdefense.com/free-legal-resources/)
eJournal: I’d also remind members that Andrew has extended a discount for his online training to Network members. You can access the discounts and coupon codes when you log in to the Network website, armedcitizensnetwork.org, and click the Discounts/Coupons link in the menu on the right side of that web page. I’d add, Andrew, that I’m looking forward to seeing growth in the numbers of states for which you have online training available, so we’ll be checking in at http://lawofselfdefense.com regularly to continue learning from you.
Thank you for sharing your knowledge with us through these interviews, and for all the good work you do helping armed citizens understand their state’s law of self defense.
Click here to return to June 2015 Journal to read more.