You Have the Right to Remain Silent
This article was originally published in our December 2008 edition of the membership journal.
by Marty Hayes, J.D.
DISCLAIMER: The following educational essay, written by Marty Hayes is not legal advice. It is, however, the beliefs and thoughts of the President of The Armed Citizens’ Legal Defense Network, LLC regarding one facet of an armed encounter. Before instituting any plan of action for yourself, discuss your concerns with an attorney licensed to practice law in your state. Print out this article and give it to your attorney before this discussion, and together, come to a logical conclusion as to what course of action to take after he or she has had an opportunity to read this article.
It is common advice amongst lawyers and judges that when first confronted by the police after a self-defense shooting, you should say nothing, because anything you say “can and will be used against you” in a court of law. The latter part is true, of course, but the fact of the matter is, if you are tried for an alleged criminal act associated with your use of deadly force in self defense, you are likely going to have to testify in court anyway. I know, you don’t have a legal requirement to testify, and most if not all, criminal defense attorneys would advise against a criminal defendant testifying, but here is the rub. Most (the vast majority, in fact) criminal defendants are guilty of a crime, and if they testify, it simply gives the prosecution the opportunity to elicit more information about their criminal act.
In addition, if the attorney reasonably suspects that the defendant did in fact commit the crime, he must not get the defendant on the stand and solicit lies. It is called suborning perjury, and that is a crime in itself. So, in the typical criminal case, the defendant remains silent (as is his right) and the prosecution must prove that he is guilty beyond a reasonable doubt. It is the defense attorney’s job to poke holes in the prosecution’s case until the jury has too many doubts to convict. But the roles are reversed in a self-defense case. Let me explain.
First off, as explained in our educational DVDs, which come with membership in the Network, whenever one person shoots another (like you shooting an attacker), they have fulfilled the criminal elements of either murder or assault, whether the person lives or dies. When the police show up, they have “Criminal Law 101” which they learned in the police academy running through their heads. They look at the dead body with holes in it, they look at you holding a gun. They add up these factors and “murder” flashes up on the screen.
At this time, there is only one way for you to avoid going to jail. That way is to convince the police that there are extenuating circumstances that negate the crime of murder. But if they don’t know about those extenuating circumstances, you will be arrested. And once arrested, you will remain in jail until you can make bail, or a kind and friendly judge decides to release you. In many jurisdictions, you will be arrested anyway because you fulfilled the legal elements of the crime, regardless of any mitigating circumstances. You need to find out what the protocol is when police encounter a self-defense shooting in your jurisdiction.
The crime of murder encompasses the intentional killing of another human being. Only a defense to that crime, will allow the shooter to walk free. If the cops have no information that you acted in legitimate self defense, you are sure to be arrested. I just asked a police academy instructor what they are teaching recruits about the armed citizen and self-defense law, and he said, “Nothing!”
And, if that isn’t bad enough, in court, when you are on trial for murder and your defense is self defense, you have to admit to the elements of the crime in order to invoke self defense. In opening argument, your attorney will tell the jury that you killed that man. All the prosecution has to prove is that you did not kill him in self defense. If you don’t put on a legitimate case, the jury doesn’t have any choice but to convict you of murder. The burden has shifted to you to prove your act was a legitimate case of self defense.
How do you do this?
Actions of an Innocent Person
First, don’t act like a guilty man or woman. When the first words out of your mouth are, “I want my lawyer,” you have done a surprisingly good imitation of a street-wise criminal. What is any self-respecting cop supposed to think? Dead body + gun + “I want my lawyer” = jail.
If, on the other hand, the officer hears, “My life was threatened, I had to shoot,” he forms a slightly different picture. In addition, if he first learned of the incident by a call from you to 9-1-1, and at that time you indicated that you were the victim of a robbery (or whatever crime caused you to believe your life was in danger) then he forms a different picture of the call before he even gets there.
If all he hears is: “Shooting occurred, suspect is still on the scene and armed,” called in by a witness, then you will be perceived immediately as a nasty character who needs to be dealt with aggressively.
You need to be the reporting party, if it is possible for you to do that. Win the race to the phone. Most criminal prosecutions start out with a 9-1-1 dispatch tape, to set the mood for the jury. In your case, if you report the crime first, the jury gets to hear you telling dispatch in your own words, that you were just attacked and had to defend yourself. Then, the police testify about what you said to them, and they report, in the “excited utterance” exception to the hearsay rule, that you told them you were attacked and had to defend yourself. See where this is going?
In addition to telling the police that you were attacked, point out any witnesses that saw the incident, or know of any evidence that is likely to be missed by the officers during their investigation. Guilty people don’t help the cops. Innocent people do.
Were you injured during the assault against you? If it was a physical altercation, as are most disparity of force situations, there will likely be evidence of that attack on your body. If you are aware of any pain as a result of the attack, ask for medical aid. It is likely that when attacked, you experienced an adrenalin dump. One of the effects of adrenalin is that it masks pain. You may have been injured, but don’t really feel it. Those injuries, even if you don’t feel any pain, are evidence of an attack. A bruise on the noggin may in fact be a concussion. You need to get checked out at the hospital.
It is pretty tough for a prosecutor bent on putting you in prison to cross examine medical records. You see, in the hierarchy of professionals, doctors trump lawyers, and so a doctor’s word is going to be believed before the rantings of a prosecutor. If you just tell the cops you want your lawyer, and don’t ask for medical aid, that evidence is lost. You may be a rough, tough guy, “awe shucks, it’s just a flesh wound,” and it very well may be, but it is also evidence of the attack. Are your clothes dirty, wet or muddy? It’s evidence that you were on the ground. Make sure the cops see, understand and document that fact. You see, no one knows what little piece of evidence will be the one that tips the scales of justice in your favor, so you cannot leave anything out.
Know When to Stop Talking
But you also need to know when to stop discussing the event with the cops, and you are at that point now. After establishing that YOU were the one attacked (and it might be a good idea to explain that you want the guy you shot prosecuted if he lives) then this is the time to request your attorney. Say something like this: “Officers, this is a real serious matter, and while I want to cooperate with you fully. I have been taught that it is a good idea to have an attorney present before I give any detailed statements. Can I call my attorney? I have his number in my wallet.” What is the cop going to say? No, you cannot call your attorney? Well, he might, and if he does, that’s okay, too, but you ARE going to get the chance to talk with your attorney before any more questioning. In the meantime, you should be viewed by the police as being cooperative.
The premise behind this educational essay is that you are innocent of any criminal activity in your legitimate act of self defense. If you go to court and testify, which you will likely have to do, you will be testifying to the truth. Finally, what you tell the cops at the scene is also the truth, so where is the downside? The truth never changes.
People who carry guns in our society do so with the understanding that they have voluntarily accepted a huge responsibility. They need to receive training in the legalities of use of deadly force, decision making, along with how to handle yourself if you have to use a gun for self defense, in addition to the physical skills of how to handle guns safely and competently.
Readers of this article who are not members of the Armed Citizens’ Legal Defense Network, LLC need to know that we go in-depth in to this and other topics in our educational DVDs, so if you want to learn more, please join the Network.
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