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Old February 23, 2012, 01:13 AM   #67
BillCA
Senior Member
 
Join Date: November 28, 2004
Location: Silicon Valley, Ca
Posts: 7,087
Quote:
Originally Posted by RamItOne
Two things
"and of course all weapons used in the fight will be conficated by the police as evidence, and may or may not ever be returned to the citizen."

seriously I may not get my gun back? Im not mocking the post, just had never thought of that possibility, kinda scary. Def need to take my sig 1911 off the nightstand.
Seriously, you may not get your gun back. It will depend on how the legal machinery works. At the very least, your gun will be seized as evidence. It will be examined, checked for finger prints, very likely test fired and bullets compared to those removed from the deceased or wounded. If it's a clean defensive shooting, the court may order your release along with all property confiscated. But with some metro agencies, actually getting your gun back will be made as time-consuming, expensive and difficult as possible.

If you are charged and the prosecution's initial case falls apart in pre-trial motions, they may retain the gun while dithering over whether to bring "other charges". In that case, the gun is still on an evidence-hold. Prosecutors may not notify you that they've elected not to prosecute and after a year or two, the gun destroyed.

Quote:
As for the posters posting what you should say, I would hope you don't use whatever you typed as your response, for if a DA gets a hold of the 911 tape and what you type here and its verbatim, theyll say its either a boiler plate statement or youve put a lot of thought into shooting someone in your own home. Which i see nothing wrong with running scenarios in your mind but the good ol legal system sure can mangle words. Remember clinton and "is".....
I might hope a DA would be so foolish. My attorney would shred the prosecutor's hide and turn it into gerbil bedding.

He would be lambasting the prosecutor's attempt at denying the defendant the right to seek and discuss the best possible legal advice with others, determine a correct and legal course of action to ensure his rights were protected and to use the advice he received. If said advice relies on a generic statement to avoid unintentional admissions or omissions during a period of high-stress, he is well within his rights to use such a statement under the 5th Amendment.

Moreover, he'd point out that the prosecutor's insistence that the defendant "[i]putting a lot of thought [or training] into shooting someone in his home[i]" somehow automatically implies some kind of mens rea, borders on prosecutorial misconduct. Using such logic, the prosecutor would indict airline pilots who survive a crash, NASA personnel for the Challenger and Discovery disasters and automotive safety engineers for any fatality.

At the same time, using the prosecutor's logic in reverse; had the defendant had informed officers that he owned a gun but never thought about using it in the home, this same prosecutor would crucify the defendant as irresponsible, grossly negligent and failing to perform the slightest due diligence with regard to keeping a firearm. He wants the jury to convict not because the defendant erred legally, but because he was too diligent to fall into any legal pitfalls.

A good defense attorney would turn the DA's criticism into a positive advantage by showing the court or jury that the defendant sought advice and/or training to remain within the law. He would argue that taking a human life is an abnormal, high-stress event for the defendant and he was legally advised to use a memorized generic ("boilerplate") statement as the best method to avoid legal quibbling over the exact intent and meaning of a single word or statement.

Rather than worry about the above, it's more important to worry about public statements on forums, emails and in statements to neighbors that anyone breaking in "is gonna leave feet first in a body bag" or "ain't leaving with a pulse". Those kinds of statements are far more damning to a person's attitude than attacking an initial statement.
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