An Interview with Marty Hayes, J.D.
The deluge of videos, blogs, articles and commentary spread across the Internet parroting advice for criminals arrested by police raises questions when members contrast Internet advice against the Network’s instructional video Handling the Immediate Aftermath of a Self-Defense Shooting. Perceptive students of post-incident survival not only ask why our material differs, but, knowing that ultimately decisions about self defense and its aftermath rest with the individual, also seek help to better understand the terminology, ask questions about giving statements and how their words could be used by both the defense and the prosecution, and at the root of the question, strive to better understand why one who has used force in self defense would give a statement. These concerns take us beyond shooting incidents into the far more common defensive display of a firearm, use of non-gun force options in self defense and the broader perspective which citizens who train for self defense seek.
In answer to member questions, Network President Marty Hayes gives his views on the controversial subject of post-incident statements. We switch now to our Q & A style for members who prefer the written format; for those preferring video, click the picture to browse to https://youtu.be/vW2nh0AJw2E on our You Tube channel for a less structured conversation with Marty on this subject.
eJournal: Considering the constitutional right against self-incrimination, why would a survivor of a violent encounter choose to make a statement to police about actions he or she took in self defense?
Hayes: First, let me make it perfectly clear that I am not giving any legal advice. While I have a law degree, I’m not an attorney so I am not giving legal advice. This article is me, Marty Hayes, telling people what I would do under certain circumstances and explaining a little bit about the law based upon my about 40 years working within the criminal justice system. I’ve been a police officer, a firearms instructor and work as an expert. I pursued a legal education to better give expert testimony in court and I interact with attorneys regularly.
That’s where I’m coming from. Today, I’m going to basically be giving the logical citizen’s viewpoint on why we would give a statement to police.
eJournal: Why would we?
Hayes: The police are going to get a call that violence has occurred. Maybe somebody beat somebody over the head with a baseball bat, somebody stabbed somebody or shot and killed somebody. The police are called, and it might even be you making the call – we’ll talk more about that later – but when police show up, they want to investigate what happened. For police to do the best investigation possible, they need to know what happened at the scene. Notice that I didn’t call it a crime scene. Your actions, assuming lawful self defense, are not a crime.
Police are investigating the crime that the perpetrator was doing to you. They need information. They need to know what happened. Wouldn’t it be nice if for every situation anyone ever got involved with, a witness there could relate to police what they saw, what happened and what they heard? The good news is there is a witness there and that is you.
I have been teaching the following concept for at least 25 years if not more. Be a good witness. The police need witnesses to be able to figure out what happened. You need to be a good witness. That is why you might choose to make a statement to the police.
eJournal: Before we go further, let’s tie down some of our terminology. Much of this derives from questions that members phone in and email about things on which they feel some confusion. Let’s just spend a little bit of time on terminology and let’s start with what constitutes giving a statement. How broadly do we define “a statement?”
Hayes: A statement is any words that come out of your mouth or any physical gestures that would communicate to the receiver of the statement what you are intending.
eJournal: Breaking that down a little bit more, there may be different points in a post-incident timeline at which you might be expected to make a statement, at which a good witness, a good citizen might be expected to speak. Responding officers may expect you to make a statement to them; when meeting with investigators – with your lawyer present, of course – you’re going to be making a statement; there may be a walk-through of the scene; there may be a chance or informal meeting with a detective who asks, “Hey, I just wanted to ask you one last thing…” and are you now making a statement to a detective…
Hayes: What would you like to know, Lieutenant?
eJournal: Are you making a statement under all of those different circumstances?
Hayes: Yep. Anytime you talk about something, you’re making a statement. I just made a statement!
eJournal: Is it admissible?
Hayes: That depends on whether or not you wanted to prove that I made that particular statement.
eJournal: Are there any statements that a person who defends themselves might make to police that are inadmissible at trial?
Hayes: Yes, any statements made pursuant to police questioning after they have read you your Miranda rights and you have agreed not to talk to the police, then if they ask, “One more thing” and you answer, knowing full well that the police have Mirandized you and you have refused to talk or invoked your right not to be incriminated by your own speech, then those would be inadmissible. Additionally, hearsay statements are inadmissible.
eJournal: What is hearsay?
Hayes: Let us consult Black’s Law Dictionary for that specific definition. “Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness. Such testimony is generally inadmissible under the Rules of Evidence.” That’s what hearsay is.
eJournal: Are there any circumstances under which hearsay would be admissible at trial?
Hayes: Yes, there are a lot of exceptions to the hearsay rule. An excited utterance is an exception to the hearsay rule. During a situation if there’s a lot of excitement and you uttered something that another person overheard, they could likely testify in court to what you said.
eJournal: They would be saying that what I said was credible, so it’s okay for them to tell the judge and jury? Is that how it works?
Hayes: Yes, because it falls back on the idea that someone who is in an excited state isn’t going to be purposefully lying and the whole reason for the hearsay rule is to allow only credible testimony in court.
eJournal: Does that make the presumption that I’m not going to have the mental wherewithal in the heat of the moment to create an excuse?
eJournal: Okay, how does this relate to – or does it relate to – another term that we run up against: “a statement against interest?”
Hayes: Another of the exceptions to the hearsay rule are statements against interest. Let’s say that you’re an armed robber and you left the store with a bag full of money and you got into a car and took off and showed the bag of money to the driver and said, “Look how much money we got!” Well, if the police want the driver to be able to testify to that utterance, then they would have to reasonably show that was a statement against interest. The driver could then testify to that.
I’ve been consulted on a number of self-defense cases, and I have yet to run in to any time when hearsay was a big point of that case.
eJournal: Okay, let’s move on to direct statements that one might give. Consulting on self-defense cases, have you seen challenges to the credibility of what a defendant said to the extent that a jury was not allowed to hear their statement?
Hayes: No, I have not. The defense attorney is going to make a case for the jury why the defendant is credible when they say that their life was in danger. That’s where a lot of the BS that you hear on the Internet comes into play. If you have seen a video 100,000 times that says, “Don’t talk to the police. Just simply state, ‘I was in fear for my life. I was in fear for my life.’” Then the statement, “I was in fear for my life” lacks a little bit of credibility.
eJournal: Well, it’s parroted from something you were told would work, not authentically your own thoughts.
Hayes: On the other hand, if the defendant, the armed citizen, says, “He was going to shoot me! I drew and shot him first,” then that’s a little bit better than just saying, “I was in fear for my life,” especially if the guy does have a gun lying on the ground. Investigators can say, “Okay, well, that’s probably pretty truthful.” It’s better when you’ve got a witness there that says, “Yep, that’s what I saw,” and so there’s more evidence to back up your statement.
eJournal: Let’s switch our focus to situations where we might apply what we’ve talked about. There’s a lot of talk about what to do when police arrive, but there has to be a call to 9-1-1 to get them coming. Can we accept that if one calls 9-1-1, the things told to the dispatcher may be admitted as evidence at trial?
Hayes: I have yet to see a case where the 9-1-1 transcripts were kept out. The reason an experienced defense attorney would keep them out would be because they’re damning to their defense. At that point, the prosecution would say, “Uh, Your Honor, that’s an exception to the, A) excited utterance rule and, B) it’s a statement against interest.” The judge would say, “Objection overruled,” and the 9-1-1 transcripts would be allowed.
eJournal: Accepting that a jury will likely hear your call to 9-1-1, if it was you how would you manage the call? What would you do?
Hayes: It just depends on the situation. Narrow it down for me.
eJournal: Are you going to call 9-1-1 yourself? Are you possibly going to have someone else make the call?
Hayes: If I do not believe there is any other way to get the police coming, then I’m going to make the call. If there are witnesses, I would say, “Mr. Witness, call the police and tell them what happened here. Send an ambulance, the guy is injured.”
eJournal: If there is nobody but you and the assailant, what are you going to tell dispatch?
Hayes: I would give them my name, the location, and assuming it’s a shooting call, let’s say an armed robbery that I interrupted, I would tell them there was an armed robbery at the 7-11 store on Second and Vine. There is a man, the robber, who has been shot and we need police and ambulance here.
eJournal: I have listened to 9-1-1 recordings, and it seemed to me that – with no disrespect to our emergency services people who do a tough job – the dispatcher pretty much interrogated the guy who called to ask for police help. How would you react if aggressively questioned by dispatch?
Hayes: I would say, “I can’t talk right now, I have to contain the scene.”
eJournal: And if questions continued?
Hayes: I would hang up.
eJournal: That is counter to much of the advice that we’re given to remain on the line to be alerted when officers arrive, or if other aspects of the situation change. That aggressor may still be a threat to you. I don’t think you need to be talking to dispatch under circumstances like that, but more critically, I think you don’t need to be giving a lot of details to the dispatcher, so it can be a challenge to shut that down without creating hostility.
Hayes: It’s just going to be situational. You’ll have to do what you think you should be doing at the time. You can see how much of a problem the 9-1-1 recording became for George Zimmerman. His call to 9-1-1 really became a focal point of his trial. He stayed on the line with the dispatcher and talked about the guy that he thought was breaking into the residences and how he was following them and then talked about stopping following him and then how he was being followed.
If he would have just said, “Hey, I’m the block watch captain here. There’s suspicious activity. There’s a man who is looking like he’s going to break into houses. Please send the police,” and gave a description of himself so they wouldn’t think that he’s the one breaking into the houses. If he had left it at that, if he would have said, “No, I’ve got to go,” the police would have shown up and he wouldn’t have been accused of stalking this young child who had a bag of Skittles.
eJournal: One of the bad things to evolve from all the “Don’t talk to the police” video and articles manifests in something I hear fairly often. A surprising number of people say, “Why would I even call 9-1-1?” That bears discussion. Generally, we’re not talking about a shooting where the evidence is going to be incontrovertible, but let’s say that you drew a gun in defensive display, it worked as the statistics say that it often does, and you were able to defuse the situation and get yourself to safety. That’s the scenario when I hear people asking, “Why the heck would I call 9-1-1 and say what I had done?” Your thoughts?
Hayes: Understand that if you use force or threaten to use force against someone, you have committed a crime. If you want to turn the narrative away from you committing a crime, then you need to tell the police what the other person was doing – what criminal act he or she was doing that caused you to need to defend yourself. It’s a matter of turning the narrative away from you. Every time you use force, whether it’s pointing a gun at somebody, whether it’s shooting somebody, whether it’s grabbing them and taking them to the ground, absent justification, that’s a crime. You need to be setting up your justification.
I will admit that if I’m out hiking in the woods and I come across some homeless dude who gets out of his tent and comes and confronts me, I might simply say, “Sir, I don’t have anything for you. Back away,” after which if he didn’t back away, that gives me more information to believe that maybe there’s something more serious going on here. At that point, I may put my hand on the gun and say, “Sir, I said back away,” and if he says, “Oh, dude, I’m sorry, I misunderstood,” and he goes back in his tent, and I hike away, I might not call the police under those circumstances. It’s going to be situational.
When I get back from my backpacking trip, I might call the police, and say, “Listen, I need to report an incident that occurred while I was out on Trail 51 in the Gifford Pinchot National Forest, hiking up to the mountain lake where I like to fish. I was accosted by a guy who was living in a tent. I told him to back away, but he wouldn’t. I told him to back away again. I communicated to him by virtue of my hand under my jacket that he needed to back away, at which point he backed away and we were done. I just want to let you know there’s somebody up there doing this,” and give his description.
The police probably aren’t going to go running up the pathway in Gifford Pinchot National Forest and confronting the guy. They’re just going to write a quick line in the dispatch log and move on. At least you’ve communicated to the police what happened and if at some point in the future he ends up getting shot or he ends up attacking someone, then there’s a little piece of information that might be important in a court case.
eJournal: That example was set in a very remote location. It seems more likely that one may be required to work late and be accosted going to their car in the parking lot or trying to get to public transit. Your hand goes to your holstered gun, and you order the aggressor to move away. If they approach, that escalates to defensive display of a firearm. After you get away, do you call 9-1-1? If you’ve been indoctrinated not to talk to the police, what is the downside of not reporting the incident?
Hayes: I am reminded of an incident where you ended up with a panhandler at a gas station. What did you do?
eJournal: I yelled my head off.
Hayes: Did you show him a gun?
eJournal: No, I did not, because I was never that close to him. He responded to my verbal commands and staggered off in another direction.
Hayes: If he hadn’t stopped – if he had kept coming at you – would you have displayed a firearm?
eJournal: I would have moved behind the car and had a hand on the gun. If I’d drawn the gun, yes, I would have called 9-1-1. There were a lot of other people around that night, and I didn’t need someone reporting a situation they did not understand.
Hayes: Exactly. Someone calls in, “There’s this lady at the gas station waving a gun round.” It is all situational.
eJournal: And yet, I still hear people saying, “I do not know why I would call police and report on myself and tell them what I did.” First, am I reporting the panhandler’s aggression or am I calling to report my actions? What am I calling to report?
Hayes: It’s going to be filtered by your common sense. Is there someone else around that might have seen what happened and might they have thought that I was out of line when I pulled my gun? If that’s the case, they may call 9-1-1. “There’s a crazy lady out here waving a gun around and this was what her car looked like. In fact, I’ve got a license plate number.” Within a few minutes you’re pulled over and arrested for making terrorist threats.
That brings Paul Lathrop to mind (pictured below, left, podcasting from our booth at the annual meeting of the NRA). If you remember, in 2016, Paul was a truck driver who was accosted by another truck driver who thought that a student driver in his truck did a poor job of parking when he stopped to get fuel. Paul said something to the effect of, “I’ve got a gun,” trying to stop the other driver from getting at his student in the cab. (Hear the story in Paul’s own words at https://www.handgunworld.com/episode-381-falsely-charged-paul-lathrop-speaks-publicly-for-the-first-time/ .) Eventually, Paul drove away, but then the other driver reported that Paul waved a gun at him. Well, Paul didn’t wave a gun at him, but he was pulled over 20 miles down the road, arrested and spent six months fighting this until the prosecution dropped the case.
eJournal: I’m glad you brought up that case because we’ve talked about different degrees of force, raising the question, “What’s serious enough to report?” Charges of making terroristic threats seem to arise more and more frequently after defensive display of a firearm. That story guides when you might want to call in and establish a record – even if you’ve just given verbal commands.
Hayes: The fact of the matter is that Paul didn’t call in. He thinks, “Oh, man, that was weird,” and he gets in his truck and drives away. Well, if he would have called in and said, “Listen, I was just accosted by this guy at the Flying J. I just wanted you to know about it in case something happens to somebody else.” I think he would have never been arrested, because now you’d have Paul saying one thing, being the complainant, and then the other guy calling in about it. While Paul might have been arrested, they certainly wouldn’t have pursued it as hard because he had made a statement. They’d have two pieces of evidence: his statement and the other guy’s statement.
eJournal: Acknowledging that each circumstance is different, that’s a lesson that can help members decide when they’d call 9-1-1. Should we discuss anything further bearing on the 9-1-1 call?
Hayes: Let’s put that all in the context of what would a good witness do under those circumstances? Would a good witness have called the police? Was it serious enough to get the police involved? You need to be a good witness because you are perhaps the only person that witnessed this situation.
eJournal: We weigh the pluses and the minuses, not wanting to be one who eagerly reports others’ bad behavior. If we see two people fighting in the street, I think we ask ourselves, “Gee, should I call 9-1-1 or should I just drive past?” Many are not certain when we should call it in or drive on.
Hayes: I think most people now would turn around, get their cell phone out and record the fight without calling 9-1-1.
eJournal: [Laughing] This is a good place for us to take a half-time break and come back next month to talk about managing statements given to police that come because you or another person called 9-1-1 for help.
Marty Hayes, J.D. is president and a founder of Armed Citizens’ Legal Defense Network. He brings 30 years experience as a professional firearms instructor, 30 years of law enforcement association and his knowledge of the legal profession both as an expert witness and his legal education to the leadership of the Network.