Recently, there has been considerable discussion about the role of training for armed citizens and whether or not training could be used against the armed citizen in a court of law. We here at the Network are intimately aware of one such case https://armedcitizensnetwork.org/images/stories/Hickey_Booklet.pdf in which an armed citizen was questioned extensively while on the witness stand about attending several military-centric training courses. Consequently, we asked a couple of questions of our affiliated attorneys.
Do you have personal experience with training becoming an issue in court for an armed citizen in a self-defense trial, and if so, what was the outcome?
If a person has a strong training résumé, what steps would you suggest taking to keep their extensive training from creating a negative result in court?
Our affiliated attorneys responded in such numbers that we ran this topic in December and wrap it up this month. The second half of the attorney commentaries follow:
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003
The old “to train or not to train--that is the question” question. I have actually had this issue arise in trial in a shooting case, but only offensively. That is, we brought up my client’s extensive firearms training (a lot of which was, unfortunately, informal—we’ll get back to that in a second) proactively to explain his decision to shoot and to counter the State’s contention that his “tight grouping” somehow indicated the “evil hand, led by an evil mind” concept. This was an aggravated assault case which involved shots fired by my client, from his moving vehicle, at the driver of another moving vehicle who was demonstrably trying to run my client (and his infant daughter) off a highway overpass. Not only did my client’s extensive background in shooting and training impress the jury, it allowed lines of questioning by me that were, frankly, over the head of the non-shooter prosecutor. There were, thankfully, people familiar with shooting on the jury. The strategy worked well—I secured an acquittal on all charges.
I always explain to students that the “only difference between a 22-year-old raw police recruit fresh out of the academy and a 55-year-old captain of the SWAT team is training and experience.” I think we should all get as much training (good training, that is—the only type you should be exposed to as a member of ACLDN) as your time and budget allow. Particularly conflict avoidance/situational awareness types of training. This will hopefully 1) keep you from ever having to actually use your fighting/shooting skills, or, if that fails to 2) prove it was, in fact, your last option “in the gravest extreme” (thanks, as always, to Mas Ayoob) and you knew how/what to do to avoid the encounter and you simply ran out of other ways to avoid it. The more tools in your toolbox, the better decisions you can make, and I trust that the jury will see that, if properly taught along the way.
I tell my students (who we hope never become clients) to keep all training materials (CVs, lesson plans, notes, photos, videos, targets, exams, etc.) from each and every class in a well-organized (with index tabs and a table of contents) three-ring binder. When that binder is full, place it in a sealable Tupperware storage container in your attic, and add notebooks to that until it is also full—repeat as time/money allow. Producing those documents as Defense Exhibit One shows training. I also keep printouts of all results from shooting competitions (which I highly recommend) with my placement highlighted (lower and lower these days sadly) to show “experience.” Any other demonstrable training/experience, if viewed favorably, should also be included. You might not want to include your (if you have fun friends who invite you) “barricaded dynamic entry” classes, or your “use of flashbang” classes (and be aware that if the right question is asked or the right discovery undertaken those will come out even if you don’t bring them up). As such, classes like those may best be left to the real dudes and dudettes (unlike guys like me) who have a need for them.
In short—control your narrative—don’t let the prosecution do so. Proactively assert why your training was so important and so beneficial. If you’re afraid of what your training record will show, that might be a bigger problem for another day.
Jerold E. Levine
5 Sunrise Plaza Ste. 102, Valley Stream, NY 11580-6130
We have not seen training become an issue in a courtroom trial, but we have never had a client who had any training beyond a basic instruction course.
What we have seen is NRA membership, multiple training course certificates, and other things related to shooting activities disaffect the image of clients involved in the gun licensing process. The New York City gun licensing authorities see anyone with a strong interest in guns as a potential danger, and NYPD police recruits are taught that if they encounter a person who owns more than one or two firearms, the person should be assumed to be some kind of nut.
Respecting a court trial, and assuming the opposition makes the client’s training an issue, I would mitigate the “nut effect” by linking the training to things that seem legitimate, such as training in aid of particular employment. I would look to see what elements of the client’s training are similar to the training that is given to police. Trying to emulate police is not the goal, but showing that police use the same training legitimizes the training.
If the client has not given instruction courses, they could give a basic gun instruction course for little old ladies, and another about how to make a house gun-safe for children. They could author an article or pamphlet about the importance of training for new gun owners (including lots of legitimizing language) and post it everywhere. If I could, I would get a local police official to write a foreword for the article, and then ask him to distribute it at the police precinct. If his picture is included in the article, they will be more likely to help (and the picture will help the client). I would do the same if I could find a pro-gun priest or rabbi (there are some). These possibilities are limited only by imagination.
Think of all this in the same way that rich people influence juries. When the rich face criminal or civil trial, they start donating to charity and taking on “save the world” causes. Most clients will not be that rich, but still they can mitigate against anti-gun prejudice — if they work at it. In a place like New York, they must appeal to things that an anti-gunner will appreciate. The jurors will not like guns or the client’s interest in guns, but they will like that the client helped the little old ladies.
Roland S Harris IV, Esq.
40 York Rd., Ste. 400, Towson, MD 21204
This is written from a Maryland perspective and other states may have different laws and court rules. At this time I have not had training become an issue concerning cross examination but I can see how a prosecutor would like to make it an issue. The intent is to show the defendant to look like a member of fringe groups or that they did not do what they were told to do.
In self-defense cases the applicable state/federal self-defense law is paramount but a prosecutor will try to show that despite the training telling them not to (insert act of self defense) they did it anyway. I would ensure the client is well-aware of what the law is and has thoroughly gone over their testimony with the purpose of meeting the requisite elements of self defense. That should be the foundation of preparation.
I would also find out about each of the trainings and if helpful strike first, bringing out the training and maybe even having an instructor called as an expert witness. This might turn the tables to the extent that the prosecutor objects to the use of such testimony.
If unhelpful somehow, the prosecutor’s cross examination on different trainings would be likely subject to a pre-trial motion to prevent the use of the trainings. Unless the intent is to qualify someone as an expert, such questions would also be subject to objections during the testimony to the extent the questions are irrelevant to the split-second decision that caused the court proceedings, and as previously mentioned in some cases I may actually welcome such a discussion on cross examination because it shows my client takes firearms seriously and isn’t a cowboy. There is always the prejudicial effect of having trainings by unpopular organizations and that too would be objected to as irrelevant, since the issue is not the quality or source of the training but more often than not the events leading to the act of self defense and the manner in which self defense was asserted.
Every case is different and one must be be prepared for what they expect to happen at trial, what they don’t expect to happen at trial and for what actually happens at trial. Sometimes strategically things are allowed in only to be demolished during the course of the trial and the qualifications of my client is a good example of something that could be allowed in and turned against the government.
Steven F. Fairlie, Esq.
Fairlie & Lippy, P.C.
1501 Lower State Road, Ste 304, North Wales, PA 19454
The key to not having self defense firearms training used against you in a criminal trial is to follow the training. That may be easier said than done in a life or death situation, but if you follow your training then there won’t be much that a prosecutor can effectively cross examine you about. Conversely, if you deviate from your training it will be easier for a prosecutor to make you look reckless and unreasonable in your deployment of force.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.