An Interview with Marty Hayes, J.D.
Interview by Gila Hayes
This is part two of our interview with Network President Marty Hayes in which he answers member questions about making statements to police. Due to the length of our Q & A session, we broke this interview into two installments. If you missed Part One last month, please browse to https://armedcitizensnetwork.org/making-statements where we define terms, ask him about admissibility, and end with a discussion about calling 9-1-1. We move now to the arrival of law enforcement resulting from the call to 9-1-1 and continue to explore making statements. As we did last month, for those preferring video, we offer the option of the less formal video discussion at https://www.youtube.com/watch?v=LAq16Dpf__U or for those preferring the more tightly-edited version, continue reading for a more concise written format.
eJournal: If you had called 9-1-1 after self defense, how would you establish that you were the good citizen who called it in; you were the person who called and asked for help? How do you establish that? What do you say when the police arrive on the scene?
Hayes: I would have my hands in plain view, and I would say, “Officer, I’m the one who called,” and that’s all I would say. Let them take it from there. After asking your name, they would probably say something like, “Well, what happened?”
eJournal: What are you going to say?
Hayes: I’m going to explain what happened, not in great, excruciating detail but I am going to tell them why I felt the need to pull my gun. “The man was threatening me. He was threatening other people. He had a knife, he said that he had a knife; he said that he had a gun.” I would be explaining to them why I felt the need to pull my gun.
Now, I can hear in the background all the attorneys: “Oh my God, he’s saying that he would tell the police what happened!” Well, I’m going to be a good witness. I’m not going to get into excruciating detail about what I did, so I would not say, “Well, based on my training and experience I probably took 1.65 seconds to sweep my jacket back and draw my pistol and point it. My finger was off the trigger, officer, and my thumb safety was still on.” I wouldn’t say that.
Journal: How much can a person realistically communicate to a first responder who’s got a lot of things to deal with? Compare that against how much detail is too much, to where really, they’re just going to shut you up and put you in the back of the car while they finish figuring out what happened.
Hayes: I’m not going to go into much detail at all as far as what I did. I will give as much detail as I’m sure of about what the other person was doing and then I would politely say, “Officer, if you’re investigating me for a crime, I would like to talk with you but only after my attorney is present.”
eJournal: You would make that statement before feeling like you were under arrest, before being Mirandized?
Hayes: You’re not always going to get a responding officer or two, a crime scene technician or shooting incident reconstructionist. You may get the one-man police department who is a reserve officer with 160 hours of training, who has never investigated a crime in his or her life. That might be the sophistication of the police response you get.
How that is going to be handled is going to be different than if you were in a larger municipality with a dozen cops that could respond and investigate and take statements, and has experienced detectives. You’re going to need to kind of wing it. You’re going to have to figure out who are these people and what do they want from me?
eJournal: There is no way to set hard-and-fast rules. It has to be more nuanced. What is my situation? Am I talking to a fish and game officer? Am I talking to an experienced metropolitan police officer who gets gun calls every day? My question to you then becomes, how does that influence how I speak to them?
Hayes: Well, if you have that minimal police response person, they’re probably not going to make an arrest unless they’re absolutely clear that you committed a crime and that’s why being a good witness will help your fate that night. They’ll probably say, “Listen, I’ve got to run this by the prosecutor,” and make sure that they’ve got a good location for you so they can recontact you and go from there. But if it’s a medium to larger-sized police department you may be arrested and put into custody or maybe not even arrested as much as detained and put into custody.
It’ll probably be something along the lines of, “Hey, George, would you like to come down to the police station to give a statement?” and then “Well, we’ve got to cuff you for our safety,” and so you end up being frisked, searched, all weapons taken and cuffed in the back of the police car. You may not be arrested at that point – even though you look a lot like you’re arrested – but you’re just being detained for questioning. So, you show up at the police station, they will probably take the cuffs off you and sit you down in an interrogation room. They’ll call it an interview room, but it’s really, in fact, an interrogation room.
eJournal: I’m feeling pretty arrested at that point.
eJournal: But no one’s Mirandized me yet. How does this guide my decision to ask for counsel – or give a minimal statement about why I did what I did?
Hayes: If I have been placed in handcuffs and transported to the interrogation chambers, I’m not going to say another word. I’m going to invoke my right to have an attorney present before any questioning.
eJournal: So, not being free to leave is kind of a bright line decision point for you?
Hayes: Actually, the bright line is the handcuffs. If I’ve been handcuffed, they don’t get anything more from me unless it’s vital for me to prove my innocence later on. Something like that might be, “Officers, don’t forget to look under the bushes where he threw the knife.”
eJournal: I’m remembering an incident that we wrote about in a three-part series some years back where a man was threatened by and shot and killed his neighbor. He was put in the back of the police car under fairly bad conditions for a long time before they transported him. If you’re eager to get your basic statement out, at that point are you going to try to spill that to anybody who comes to ask, “Hey, do you need a bottle of water? Are you okay?”
Hayes: Probably not. You’ve got to understand something. When you choose to put a deadly weapon on your body in our society, then you’ve taken on a broader responsibility than just the average person who doesn’t have a gun with them. Basically, that responsibility is to be able to explain to the investigators why you had to use force against this person. If you’re not willing to take on that responsibility, then I would respectfully suggest you leave the gun in your bedroom drawer, because you’re basically assuming the role that police have usually been asked to provide in our society. You’ve decided that you’re willing to take a gun out and shoot somebody under certain circumstances and you better be able and ready to at least explain in basic details why you did that.
eJournal: Still, common advice states that you’ll be so discombobulated that you won’t be capable of making a cogent statement or not capable of stopping talking once you start. That’s actually kind of insulting when you consider that armed citizens undergo stress inoculation training that...
Hayes: Some of them do.
eJournal: Well, maybe this goes to who should carry in public or who shouldn’t, but I do take umbrage with that blanket statement that you were in compliance with the law and social standards as to when to use force and when not to, but suddenly the incident’s over and you’re not competent to decide what to say, what’s too much, what’s too little? That’s troubling to me.
Hayes: If you believe you are one of these people, then I would strongly recommend you go through some training that addresses this particular situation. Many years ago, when I ran the Firearms Academy of Seattle, one of our instructors was a lady named Kathy Jackson. After being involved in one of our higher-level classes where we put a person in a simulated deadly force incident and we started questioning them. They didn’t do a very good job of answering the questions. Kathy said, “Why don’t we include this in our training? What to do. What to say. How to act.” I said, “Brilliant!” The very next time we taught that class we had a segment of the class addressing what to say. It was amazing how much better the responses from the students got after this chunk of education. Sure, they still made a few little mistakes, but they did much better. This is the type of training that a person needs to find or needs to put themselves through: training how to handle the aftermath of a deadly force incident.
eJournal: Not only the specific instruction, but role-play as well, so that they get some experience making those decisions on the fly perhaps making those decisions under stress with others yelling and hollering. I can’t say enough for how that built up student confidence and how much that parked responses in the backs of their minds in case they ever needed them.
In your law enforcement and expert witness experience, how common it is for suspects to just keep talking after it’s clear they’re under arrest?
Hayes: Well, that’s what the police want to happen. Think of George Zimmerman. He kept talking and talking and talking and talking and talking and talking and then the next day he talked some more. He even got in the police car and drove to the scene, and he walked the detectives through the whole situation. The good news is George was absolutely 100% justified in doing what he did, and he had witnesses to back up his claims. They weren’t watching; they were what we call ear witnesses. After that, the police failed to prosecute him and then for political reasons the State came after him and decided to indict him and prosecute him for murder. Then all of this came out in trial.
Normally, when a person uses force in self defense, they have just taken hold of a ticket to the witness box and they’re going to have to tell the jury why they felt their life was in danger. The good news is they videotaped George telling the investigators why his life was in danger and they also had photographic evidence of the wound on the back of his head where Trayvon Martin smashed it into the concrete.
Typically, when I see people incriminating themselves, they’re doing it at the behest of investigating officers – detectives. The detectives are trying to twist his words around a little bit and get him to make statements that the jury might believe are incriminating.
eJournal: From what you’re saying, that would happen in the interview room, I think. What about during transport? Is it pretty common for officers to keep picking away at the suspect while they’re taking them to the police substation or down to the jail?
Hayes: I have not seen that as being common. It might happen but it’s never written up in the reports because the officers know that they’re wrong, but it might give them a little bit of information to pursue at some point during the investigation.
eJournal: So, note to self: if you’re in the back of a police car being transported, remain silent.
eJournal: This is not a question so much about giving a statement, but based on member questions, its a topic I would like you to address, if you would, please. If one receives medical aid or is even taken to the hospital after a fight – what are your thoughts about admissibility of what you might tell the EMTs or the hospital staff?
Hayes: Well, it’s all admissible. There may be a hearsay situation but that could probably be overcome by the excited utterance rule or statement against interest. I would not be telling the EMTs in the back of the ambulance or the emergency room docs or the nurses anything about the case other than, “It hurts right here.”
eJournal: We’ve explored this topic in response to member questions, many of which were stirred up by Internet videos with titles like Don’t Talk to the Police, but I’m remembering one member in particular who had been told that exculpatory statements that he made either before or after receiving the Miranda warning would be considered hearsay and thus inadmissible in his defense. Do you have any thoughts on that?
Hayes: So, the member was convinced that even if he told the police the truth, those statements would be kept out because they’re hearsay?
eJournal: I believe that he felt the prosecution could use those statements, but his defense couldn’t state, “Well, George told the police that night that the man had come at him with a knife,” that his defense attorney wouldn’t be allowed to say that. I just don’t understand how this great vast body of misinformation gets going out there.
Hayes: If the statements are documented in police reports or video or whatever then they’ll come in. If they’re not documented, then they probably won’t come in.
eJournal: A concurrent concern is how much of police reports these days is coming off vest cameras or dashboard cameras versus the old-fashioned way when you were in uniform of going back and writing up a report that night. One seems like it would be a lot more credible than the other.
Hayes: Well, typically what happens now is the officers go back, review the video and then write up the report based on refreshing of their memory by watching the video.
eJournal: Then the prosecutor has to make charging decisions based on that information.
Hayes: Understand something: I had been a cop for about 30 plus years until I retired about two decades ago, but police are mostly good people who want to do a good job and who are honest. They’re not the people that you typically hear about when an armed citizen is being prosecuted and the political machine decides that they want to come after armed citizens. They pick and choose who they want to use for investigators based upon how quickly that investigator wants to move up the chain to become a lieutenant or a deputy chief.
I’m working a case right now where we’ve got a couple detectives that have gone way out of bounds as far as what is good, honest behavior. It’s sickening to me to see this and in fact I’ve taken the case pro bono which I don’t do often but it’s such a travesty that I’ll go down and I’ll testify, and I’ll explain why the police are making stuff up; why it’s wrong. Frankly, it will never go to court but if it does, I’ll be there.
eJournal: We err by thinking the expert only gets called in to testify. The expert gets called in to guide the case, and as you said that often actually keeps it out of court. What else do you think members need to know about making statements to police?
Hayes: We need to talk about when not to give a statement. We really haven’t talked about that. Don’t do it under the following circumstances. If you have been handcuffed and you’re isolated either in the back of the car or later in the interrogation room, do not talk to the police. They have focused in on you as a suspect in a crime. Do not give a formal statement to the police without your lawyer – and when I say “formal,” I’m talking about a written statement or a videoed statement or even audio statement. Don’t do it, because they want to try to prove that you committed a crime.
eJournal: How does what you just described differ from giving bare details to a responding officer on the scene?
Hayes: Well, I think it’s a difference of you going home that night after a legitimate act of self defense or being prosecuted.
eJournal: Okay, so in the situation that you just spelled out, you’re sequestered, you’re arrested or at least detained such that you’re not free to leave. You’re in the interrogation room or you’re being interrogated.
Hayes: It’s likely you’ve been read your Miranda Rights, which is a clue.
eJournal: Your behavior under those conditions appears to me to be radically different than what you suggested in part one of this two-part series, where you spoke about giving bare details to a responding officer on the scene. What’s the difference between sharing the information – the limited information – in that setting versus sharing that information in the circumstances that you’ve just spelled out of being sequestered, of being arrested, of being in an interrogation room.
Hayes: Assuming that you did share with the officers, to begin with, what that suspect was doing that caused you to fear for your life and then if the officers didn’t believe you or maybe his gang banger buddies were bitching in their ear, “That’s all BS, man! He didn’t do that, he didn’t even have a gun on him,” because one of his buddies took it away. If that’s the case, then you may be arrested and that starts the interrogation. I would invoke Massad’s words here and say, “Officer, I wish to cooperate 100%, but only after I’ve spoken with counsel.”
eJournal: At that point, sometimes we get impatient. What if it takes a long time to get your lawyer there with you? Are you going to be willing to sit in jail waiting?
Hayes: Yes. It’s the role you have volunteered for when you decided to carry a gun in public. Furthermore, if you decided to use that gun in self defense, you’re volunteering to be handcuffed, stuffed in a car, taken down to the police station, put in a room, strip searched, and wear an orange jumpsuit. Yes, you’re volunteering to do that.
I will sit there until my attorney can get there. I don’t have an attorney in my hip pocket, you know, and I do quite a bit of traveling. It may take a day or two or three to get an attorney there, so I’ll just keep my mouth shut...
eJournal: Including not talking to the other people in the holding cell with you.
eJournal: Serious stuff! Anything further?
Hayes: Yes. When watching YouTube if you come across an attorney that gives a diatribe about don’t ever talk to the police, realize that when you’re involved in a self-defense incident and don’t talk to the police, you are inviting arrest. The attorney isn’t the one that’s going to go to jail; it’s you. The attorney isn’t going to miss work; the attorney is actually going to get more work. I’m not saying not to say, “I want to talk to my lawyer,” but there’s a flip side to that: when you say that, you’re going to very likely be arrested and so you need to prepare yourself to be going to jail.
On the other hand, if you follow my line of thinking and you let the police know what the person was doing that caused you to act in self defense, then perhaps, just maybe they’ll go down that road in their investigation a little bit and you won’t be arrested that night and you can get together with your attorney the following day and arrange to go talk with the detectives and give a full complete statement at that point.
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.