The Firing Line Forums - View Single Post - Do you shoot again after you discombobulate your opponent

KyJim · April 1, 2014, 09:45 PM

Did not have a chance to reply earlier. I've been working on a brief due tomorrow which ironically involves a claim of self-defense.

Every case is different and anybody charged with a homicide or assault should listen to the advice of his or her attorney and then decide whether to testify -- that is a right personal to the client which the defense attorney must accede to.

Having said that, I think it is a rare case for a defendant to be able to pull off a claim of self-defense without testifying. Impossible? No. Difficult? Yes.

First, let's take a look at the scenario LeadCounsel posits -- that the defendant gives a statement to the police claiming self-defense and the defense introduces this statement by cross-examination of the police officer. First, I have seen defendants attempt to do this, usually because of a criminal history. It usually doesn't work.

Second, the out of court statements of the defendant are hearsay. The prosecution can introduce statements of the defendant which are admissions. However, the portions favorable to the defendant may or may not be admissible depending upon whether it is necessary under what is called the "rule of completeness."

The rule of completeness basically is a rule that says if a portion of a statement is introduced by a party, additional portions may or may not be admissible. As one court put it, the test is “whether the meaning of the included portion is altered by the excluded portion.” I pulled up four published cases in five minutes from my jurisdiction which upheld exclusion of favorable portions of a defendant's statement to police. A number of the leading questions LeadCounsel uses would call for non-admissible hearsay from the police officer. I should add that these observations are based on my state's rules of evidence but they are modeled after the Federal Rules of Evidence and are in the mainstream of most states' rules.

My second observation is simply one of common sense. If someone shoots and kills another person and claims self-defense, the jury is going to want to hear the shooter's story first hand. Clear cut cases of self-defense don't get to a jury (at least not in jurisdictions which aren't rabidly anti-gun). Yes, they are instructed on the presumption of innocence and not to hold the defendant's silence against him. In many, many types of criminal cases they will follow that instruction but, IMO, as a practical matter a defendant starts behind the eight ball if he or she doesn't testify about a claim of self-defense.

April 1, 2014, 09:45 PM	#57
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 9,142	Did not have a chance to reply earlier. I've been working on a brief due tomorrow which ironically involves a claim of self-defense. Every case is different and anybody charged with a homicide or assault should listen to the advice of his or her attorney and then decide whether to testify -- that is a right personal to the client which the defense attorney must accede to. Having said that, I think it is a rare case for a defendant to be able to pull off a claim of self-defense without testifying. Impossible? No. Difficult? Yes. First, let's take a look at the scenario LeadCounsel posits -- that the defendant gives a statement to the police claiming self-defense and the defense introduces this statement by cross-examination of the police officer. First, I have seen defendants attempt to do this, usually because of a criminal history. It usually doesn't work. Second, the out of court statements of the defendant are hearsay. The prosecution can introduce statements of the defendant which are admissions. However, the portions favorable to the defendant may or may not be admissible depending upon whether it is necessary under what is called the "rule of completeness." The rule of completeness basically is a rule that says if a portion of a statement is introduced by a party, additional portions may or may not be admissible. As one court put it, the test is “whether the meaning of the included portion is altered by the excluded portion.” I pulled up four published cases in five minutes from my jurisdiction which upheld exclusion of favorable portions of a defendant's statement to police. A number of the leading questions LeadCounsel uses would call for non-admissible hearsay from the police officer. I should add that these observations are based on my state's rules of evidence but they are modeled after the Federal Rules of Evidence and are in the mainstream of most states' rules. My second observation is simply one of common sense. If someone shoots and kills another person and claims self-defense, the jury is going to want to hear the shooter's story first hand. Clear cut cases of self-defense don't get to a jury (at least not in jurisdictions which aren't rabidly anti-gun). Yes, they are instructed on the presumption of innocence and not to hold the defendant's silence against him. In many, many types of criminal cases they will follow that instruction but, IMO, as a practical matter a defendant starts behind the eight ball if he or she doesn't testify about a claim of self-defense.