This month’s question concerns witnesses at the scene of a defense shooting and comes to us from those involved in armed security for churches, although the question has broader implications.
Police officers involved in shootings are rightly advised to wait for 48 to 72 hours before making a statement to investigators. This is well established. Armed citizens are similarly advised for the same sound reasons. Should the same 48 to 72 hour principle apply to witnesses closely involved in a defense shooting? We asked our Network Affiliated Attorneys for their thoughts on the following–
If a Network member uses deadly force in defense in the presence of family, close associates, or in a workplace or church, what concerns would you as the member’s attorney have about accuracy of witness statements given by those in close proximity to the incident?
If the incident is witnessed by co-workers or church members or others who are present during a defense shooting, would you recommend witnesses request time to gather their wits before giving a witness statement? How can the witnesses be advised of that protection without impeding investigation of the incident?
In a related matter, it is well-established that the person using force in self defense should have an attorney present when making a statement. May a spouse or child of a self-defense shooter be attended by legal counsel during questioning?
We got a great variety of responses from our affiliated attorneys. We began sharing those commentaries in our November edition last month, and continue sharing their responses this month.
Law Office of Nabil Samaan
6110 Auburn Folsom Rd., Granite Bay, CA 95746
I would have all witnesses that you have any control over be represented by counsel for a couple of reasons.
- The lawyer would know what is being said.
- It documents the response.
- It provides the lawyer notice as to what might be an issue.
Witnesses often add to a story but just as often fail to convey important facts. For example, a witness doesn't know what a furtive movement is. The absence of facts in a statement matter.
James “Jim” Oliver
Attorney at Law
Durflinger Oliver & Associates
711 St. Helens Ave., Ste. 209, Tacoma WA 98402
253-683-4180 - 253-592-2812 - 253-683-4184
Delaying Eyewitnesses Interviews
I don’t believe that there is an effective way of delaying police interviews of witnesses to a shooting. It’s generally best for witnesses to immediately recount what they saw to officers. Even though eyewitness accounts can be very wrong, eyewitness testimony in court is generally more persuasive than any other evidence. Shooter recollections–sheepdog, not perpetrator–should be taken after appropriate decompression.
Eyewitness testimony is a leading cause of wrongful convictions. I’ve seen it first-hand in trials here in the States and overseas. I believe that even though eyewitnesses often get it wrong, there are some best practices for receiving and preserving information, starting with getting witness statements as soon as possible.
Eyewitnesses, even experienced police officers, can be profoundly wrong in their recollections. The California Innocence Project has a pretty good primer on the problems with eyewitnesses and their later testimony. See https://californiainnocenceproject.org/issues-we-face/eyewitness-identification/. The short story is that over 2/3 of wrongful convictions involve faulty eyewitness testimony.
Stress is to memory what smoking is to lungs: damaging. There are dozens of studies documenting the effects of stress on human observation and recall. Numerous studies have concluded that people often misperceive events or later misremember critical details of an incident. The more stressful the event or, the more stress felt by the witness, the higher the likelihood of later error in talking to police or while testifying in a trial. Time can also be a factor.
Memory is not fixed like a video of an event. Our recollections change a little bit each time we recall them. They are distorted slightly with every visit. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4183265. That also means, somewhat paradoxically, that memory is typically better early on after an event. I have had experts testify as much, and that testimony generally jibes with the individual juror’s common sense.
Jurors are also often concerned that a delay between an event and the later police interview allows for manipulation, intentional or otherwise. Most of us would be skeptical of a defendant or witness that did not make a statement until after speaking with a lawyer. We are all at least a little cynical about whether the resulting report represents “facts” or some narrative developed by a lawyer.
I would focus, however, on the fact that seemingly innocuous details are quickly shed from memories or altered as time passes.
Officers who discharge their firearms wait 48-72 hours before issuing a statement. Here's what the International Association of Chiefs of Police says about the matter:
“Investigations of officer-involved shootings are critically important; the results affect not only the involved officers but also the department and the community. The findings of the investigation inform any criminal charges or administrative discipline that may ensue, as well as liability that may attach to the officers, the department, or the parent jurisdiction. Ultimately, the impact of the investigation extends well beyond the single incident, affecting department-wide risk management strategies.
“The IACP Police Psychological Services Section recommends delaying personal interviews from 48 to 72 hours to provide the officer with sufficient recovery time to help enhance recall. (https://www.theiacp.org/sites/default/files/2018-08/e051602754_Officer_Involved_v8.pdf) This interval is particularly recommended for officers who were directly involved in the shooting, but it may also be necessary for officers who witnessed the incident but did not discharge their firearms.”
Many experienced attorneys believe that the 48-72 hours between a police shooting and the interview with the involved officers has less to do with improving recall than with getting everybody’s stories straight. In any event, officers have very different considerations than other witnesses. Officers risk lawsuits, criminal charges, and public outrage. Police departments, really the cities or counties that they represent, also risk lawsuits and political backlash. Thus, law enforcement agencies and governmental entities have a lot of incentive to slow the process and ensure that they control the narrative and the facts that come out.
Officers are generally also protected by union rules that outline when and how to interview officers following the use of force incidents. Lay witnesses do not have these luxuries and are, as a rule, questioned immediately after a shooting. If I were to tell any of my prosecutor or cop buddies that a witness to a shooting, likely a friend to the shooter, needed time to decompress after the event, I would get a very suspicious sideways glance. I think prosecutors, cops, and jurors would wonder about conspiracy and witness tampering if any observers to the event declined to submit to a LEO interview.
Witness Statement Timing
After a shooting, police are excellent about controlling the scene, which limits witness contact with anyone who might advise them to take time to gather their wits before speaking with police. For that reason, I believe it would be challenging, as a practical matter, to communicate with witnesses before officers have conducted interviews.
One might be tempted to train up security to advise witnesses post-shooting that they should take some time before giving statements to authorities. I think that in Washington State, that would expose security personnel to possible obstruction or witness tampering charges. It would also likely guarantee that the police and prosecutors’ offices would view the otherwise hero as something less noble.
Theoretically, churches, for example, could brief their congregations in advance of shootings to take time before speaking with authorities, but that seems unrealistic. I also doubt that the average civilian would heed the advice to wait before speaking with the police. Police enjoy constant training, union leadership, and legal counsel, all of which they quickly deploy following a shooting. Police leadership have a basic rule for officers who’ve shot someone: “Shut up until we know more.” Civilians don’t get that advice. That means that they will see no harm in immediately providing a detailed statement. Most witnesses believe that they must provide an interview with detectives.
In any event, I would probably advise witnesses to work with authorities by sharing what they witnessed immediately. They can supplement their statements later to reflect newly remembered facts, but, in my experience, they are likely to capture more details more accurately sooner after the event than later.
Right to Counsel
In Washington State, everyone has a right to have an attorney present during police interviews. As a practical matter, however, that can be almost impossible to arrange as almost no witness ever has the foresight or desire to use an attorney in a police interview.
Still, I believe that an independent witness should attend every police interview. I suggest using an independent witness because an attorney should not make himself a witness in police interviews if he plans on representing the sheepdog. Doing otherwise creates a potential conflict that would get the lawyer kicked off of the case.
Our office usually sends a private investigator to record witness interviews. That ensures a clear record even if the investigator can't provide legal advice to the witness.
In summary, most witnesses to a shooting should immediately submit to an interview with law enforcement. Witness memories are imperfect, and details are lost and altered with time. Immediate preservation is, therefore, essential. If there were a practical way of advising witnesses to decompress before speaking with police, I might suggest that they do so, but they would be subject to attack by law enforcement and prosecutors who would likely view any delay as suspect.
Paul C. Velte IV
Attorney at Law
501 Fox Rd., San Marcos, TX 78666
All persons are entitled to access legal counsel before and during any questioning, be they mere witnesses or suspects. Indeed, everyone, even suspects, start off as mere witnesses. Only when cops gather enough facts to decide which witness is guilty of something, does their status change from witness to “defendant.”
What any witness should do is advise investigators and others who ask them to “tell us what happened” is that they want to cooperate but insist on talking to a lawyer first. That should buy 24-72 hours of time to “collect their wits” and take more care in relating the facts known to them. It also prevents the story from getting mangled by police, who often make mistakes taking information down. If you control the delivery, you can record yourself when you give a statement, so you know exactly what you said and how you said it.
My only concern about off-the-cuff comments made at the scene or shortly afterward is that such comments often are carelessly made in an emotional state before a person really thinks things through in a logical fashion. I wish I could give a good example, but none come to mind. Here is a not-so-good example: Witness says at the scene, “He just came barging in here like he owned the place.” After considering all details, a day later the same witness says, “He was very insistent on coming in, and it turns out he had a good reason to be so insistent, and he really needed to come inside.”
A big “Thank You!” to our affiliated attorneys for their comments. Please return next month for more of our affiliated attorneys’ responses to this question.
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